Is Shield Law the Next WikiLeaks Victim?

D.C. debates effect of leaked docs on bill protecting journalists 12/05/2010 09:01:00 PM Eastern

A federal shield law may have just gotten a lot tougher to get
through Congress in the wake of the latest WikiLeak, though one
of the bill’s principal supporters says that shouldn’t be the case.

One of the hang-ups about the bill, which would give limited immunity
to journalists from federal subpoenas, for some legislators from both sides
of the aisle was the definition of covered journalists
and whether that extended to blogs and other online
news/data gathering, specifically to WikiLeaks.

Sen. Chuck Schumer (D-N.Y.), for one, wanted to
make it clear that the law would not protect sites like
WikiLeaks after it leaked documents earlier in the
summer about the Afghan war. With the leaks of diplomatic
cables last week by WikiLeaks, nailing down
that definition even more explicitly before a shield
law bill passes is likely to take on added weight.

The bill already has carve-outs for national security
and gives a judge the power to decide when the shield
can be extended and when it can’t. But the definition
of “journalist” already helped sidetrack what journalism
organizations saw as the best chance to get a federal
shield law after decades of failed attempts.

Lucy Dalglish, executive director of Reporters Committee
for Freedom of the Press, which has been pushing hard for the shield,
says last week’s events will make it tougher for passage, though she says the
bill already would not cover “data drop” sites like WikiLeaks. John Eggerton,
B&C Washington bureau chief, spoke with Dalglish about the bill’s prospects:

Does this latest WikiLeaks of confidential diplomatic cable make
it any harder for the shield law to pass?

Yes, in some quarters.

Is there any chance for passage in the lame-duck session?

I think so, but given the posture we are in right now, it would have to be
appended to something else. Right now there are probably a thousand bills
that are hanging out there that sponsors are trying to get appended to a
piece of legislation that actually has to move before the end of this session.

What is the current status of the bill?

It is sitting in the Senate. Judiciary has adopted it, and the clock is ticking.

Has it been amended to explicitly exclude WikiLeaks?

I have seen some language floated, but there has not been an amendment
introduced. But there’s nothing to stop Schumer from trying to persuade [Majority Leader] Harry Reid to take up this bill and say, “And by the way,
when I introduce it I am going to amend it and put this WikiLeaks language
on it.” Whether there is time to get all that accomplished, I don’t know.

Do you support a carve-out for WikiLeaks?

The way this is written in both the House and Senate
version, there is no way WikiLeaks would be protected.
The rumblings I have been hearing is that the new
proposed amendment is: “By the way, in case it wasn’t
absolutely 100% clear, we mean WikiLeaks is covered
by this too, in case you didn’t get it.” It is sort of like
double, super-secret probation kind of stuff. There
is no way on Earth that these data dumps would be
subject to protection under either the House or Senate
version of the bill, which is what makes it so frustrating
because this information would not be protectable.
This source would not be protectable. But a lot of
people who I think are not inclined to use the shield
law are using this as an excuse. I would argue that the
longer you don’t have a shield law, the more likely you
are to have massive data dumps done by groups who
are far less careful than actual journalists are.

Your argument being that...?

If a journalist can protect a source, the journalist is going to actually do
journalism with this information as opposed to: “Well, let’s just take a
bunch of documents and dump them out there.”

But if there is specific WikiLeaks carve-out language, would you
support it?

Yes, I think it is stupid and unnecessary, but would I support it, yes, because
I think it is excluded under the language currently adopted by the
Senate Judiciary Committee.

Has the administration brought any of this on itself, with its emphasis
on openness and transparency in government?

No, that is a totally different kind of information. They have not in any way,
shape or form said anything about being transparent about national security
information. In fact, the opposite is true. They have been more aggressive
than many of the recent administrations [in] identifying leakers. What they
have not been doing as much is going after reporters. But they are making a
lot of effort at who the leakers are and to shut them down. National Security
Information is a complete exception to their transparency rule.

comments to
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Twitter: @eggerton


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