Reliable sources are among a journalist’s most valuable assets. In California, an effort is under way to strengthen their protections, a move prompted by the federal government’s recent efforts to abruptly seize reporters’ telephone records.
“A free democracy depends on the freedom of the press,” said Sen. Ted Lieu, D-Long Beach. Lieu, a former prosecutor, has authored a bill seeking to strengthen California’s so-called “shield law,’ which prevents reporters from being forced to reveal confidential sources.
In May, it was reported that the U.S. Department of Justice had been secretly collecting two months’ worth of Associated Press phone records. This included calls from several bureaus and more than 20 personal phone lines. Federal agents were looking for the sources of a May 7, 2012 AP story about a foiled terror plot.
“Without question it has had a significant negative effect on journalists,” said Jim Ewert of the California Newspapers Association, a proponent of Lieu’s bill, SB 558.
Some sources come to reporters with the belief that their identities will not be disclosed, especially in cases where the information is extremely sensitive. Some of the most hard-hitting news stories have been uncovered only because individual sources were assured they wouldn’t be publicly identified.
California journalists are already protected by a shield law, defined under Section 2 of the state’s constitution. It is considered one of the strongest First Amendment guarantees in the nation. At the federal level, there is no such protection.
“Under existing (state) law, if a state or local entity wanted to subpoena records from a journalist or a news organization they would have to give five days notice,” Lieu said. “Which does two things: it gives the journalist or the news organization a heads up that they have in fact been subpoenaed, so it’s not a secret subpoena, and it gives them time to object to the subpoena.”
What Lieu’s bill does is to provide five-day notice to journalists when authorities seek their records from the telephone companies, or other third-party vendors.
In the case of the AP and the FBI investigation, there was no heads up and no window for objection to the seizure of phone records.
“They went ahead and got the phone records secretly for two months by going to a third-party vendor,” said Sen. Lieu. “So basically, the Department of Justice just gave a roadmap to the states and all other agencies to go around shield laws.”
Currently, a requesting state agency can seek out information from a third-party vendor and never give any notice to a news organization. This includes hotel and rental car information, Internet services, and phone records. Lieu’s bill, however, would change that with the five-day notice period.
“California has been the model for a lot of changes in the law across the country, and Senator Lieu happens to be at the forefront of this change with SB 558,” said Ewert.
Journalists covering state and local agencies are granted protections, although critics note that law enforcement officials can circumvent these safeguards.
If passed, Sen. Lieu’s bill could allow a journalist to quash or narrow the scope of a court order coming from the state, his office said. The idea is to ease the current chilling effects imposed on confidential sources.
But the state protections carry no weight in a federal case.
“This is not going to have any impact whatsoever on any subpoena issued by a federal agency, and that’s going to be the subject of the continual conversation and debate in Congress,” said Ewert.
Peter Scheer, executive director for the First Amendment Coalition, said his organization hasn’t supported Lieu’s bill — at least not yet.
The acquisition of information from a third-party vendor is typically seen in matters involving national security. “I’ve never heard about it happening in California,” said Scheer. “The California shield law doesn’t work if the federal government is the one demanding information.”
Soon after the AP’s phone records seizure, there was discussion in Congress and the White House about a federal shield law.
Sen. Chuck Schumer, D-N.Y, reintroduced the Free Flow of Information Act of 2013. If it ever makes it out of committee, this would prohibit a federal body from forcing certain individuals to disclose protected information in court, unless all other options have been exhausted.
“I think that a federal shield law would be helpful, it’s not a complete answer to the problems of journalists dealing with confidential sources at the federal level, but it would be helpful,” Scheer said, but the question remains whether we’ll ever see it happen given the current national political climate.
“It would take a big push to do it, and I’m not sure if that momentum is still there,” said Scheer. “We’ll see if Congress and the administration are really able to do it.”