After a four-year process, the U.S. Senate Judiciary Committee passed a bill today that would establish a federal shield law for reporters so that they would have a legal privilege to not have to reveal their confidential sources in most circumstances. The bill passed out of committee after months of uproar that the Justice Department monitored journalists at the Associated Press and Fox News and after another huge national-security leak was carried out by security-contractor Edward Snowden regarding the National Security Agency's surveillance of Americans.
During the committee meeting, the bill's definition of a covered journalist was revised to include three tests:
1. a test regarding journalists with bona fide credentials who are employees, independent contractors or agents of entitities that disseminate news or information;
2. a functional test for anyone who has entered the function as a reporter, such as someone who has done a sizeable amount of freelance work in the last five years;
3. a release valve allowing federal judges the discretion to find that someone is a covered journalist involved in legitimate newsgathering activitiesand who should be granted the reporter's privilege in the interest of justice.
Sen. Chuck Schumer, D-NY, said the legislation was "Kevlar but not kryptonite" in terms of the strength of its protections. The pendulum might swing again toward federal prosecutors who want to pursue leakers and the reporters who they leak to, Schumer said, so the bill is timely and necessary.
The amendment on who the bill will cover is a compromise from the original bill, which would have established an intent test, Schumer said. But Sens. Dianne Feinstein, D-California, and Dick Durbin, D-Illinois, had a difference of opinion on who should be covered, he said.
Feinstein offered the amendment that redefined the definition of journalists covered by the legislation.
Sen. John Cornyn, R-Texas, said that carving out any portion of the journalism sector "is in effect government licensing of the legitimate media" and would run afoul of the U.S. Constitution.
Cornyn and Sen. Jeff Sessions, R-Alabama, were the two of the most vocal opponents of the bill.
Sessions said the scope of the bill was not restrictive enough and at least twice questioned how the bill would deal with Al Jazeera, which is funded by Qatar, or the hypothetical situation of a spy masquerading as an independent journalist.
But Feinstein retorted that the application of the privilege can be appropriately determined by federal judges as "journalism has a certain tradecraft attached to it."
But later Feinstein added that without parameters on who gets the privilege, "if a Snowden were to sit down and write this stuff he would have a privilege."
While Schumer asked if Sessions was aware that the bill would exempt leaks that cause significant and articulable harm to national security, Sessions said that's hard to show.
Sen. Ted Cruz, R-Texas, said that the bill would create a privilege for journalists who "happen to receive a paycheck from a corporate media entity" but not for citizen journalists. Some of the Founding Fathers were citizen journalists, he said.
Opening up the privilege to all bloggers would go too far in drawing the line between the freedom of expression and national security, Durbin said.
On the same thought, Schumer said: "What do you do with citzien bloggers? Some are legitimate journalists and some are not."
Several other amendments proposed by Cornyn and Sessions failed, including amendments that would exempt any information relevant to a leak of classified information and any information regarding grand juries.
Leahy said the failed amendment to exempt leaks of classified information would have meant the torture at Abu Ghraib would have remained undisclosed.
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