By Kathy Kirby, Wiley Rein LLP

The Obama Administration and Congress appear to be moving toward agreement on a federal shield law that would, in some cases, allow judges to quash subpoenas asking reporters for information pertaining to confidential sources.  The House passed a version of the shield law but the measure has, until now, stalled in the Senate.  Last week, in a letter sent to the Senate Judiciary Committee signed by U.S. Attorney General Eric Holder and Director of National Intelligence Dennis Blair, the Obama Administration publicly endorsed S. 448, the Free Flow of Information Act. 

A full markup of the revised legislation is expected to take place in the Senate Judiciary Committee on November 19, although that date remains fluid.  The law would apply only to federal courts and leave intact state protections for journalists and their sources.

Currently, no federal law shields reporters who refuse to disclose confidential sources even though 37 states and the District of Columbia have laws providing legal protection. 

The Radio Television Digital News Association is among the media organizations that have worked to move the shield bill through Congress. Just a few short weeks ago, there were concerns that proposed revisions to the federal shield law would leave it so weakened as to be inconsequential.  But the compromise version now supported by the Administration, while not perfect, would provide reporters with much more protection than they would have under current federal law. 

The bill provides protection for confidential source information in the criminal, civil and national security contexts.  It covers subpoenas issued by grand juries and special prosecutors, in addition to prosecutors, civil litigants and criminal defendants.  Essentially, parties attempting to force reporters to testify about sources would have to show that the information is unavailable elsewhere and essential to their cases.  Federal judges would then balance the desire to reveal a source against the public interest in news gathering. The public-interest balancing test utilized would differ depending on whether the information sought is relevant to a criminal or civil case, or involves a matter of national security. 

In criminal cases, if the exhaustion and relevance hurdles are overcome, journalists would be required to show “clear and convincing evidence” that revealing source materials would disserve the public interest.  In civil litigation, however, the balancing test is weighted in favor of the journalist rather than the government.  The information sought must be "essential to the resolution of the matter," and the party seeking the information bears the burden of proving that the interest in compelling disclosure "clearly" outweighs the public interest in preserving the free flow of information.  This will be particularly valuable in the Privacy Act cases that have imperiled numerous journalists in the past few years.

A national security exception exists if the information “would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security.”  Significantly, the exceptions are limited to prospective proceedings -- those in which a court can find that source information would actually prevent a terrorist act or specific harm to national security.  In retrospective cases, such as leak prosecutions, the protections that apply in the criminal context would apply. 

The revised legislation broadly defines a “covered person” in a manner that should include professional journalists, freelancers, student journalists, and bloggers that are engaged in journalism (it removes a previous requirement that the covered person be a salaried employee or independent contractor for a covered entity).  In addition, it provides that journalists will  receive notice of any subpoenas sent to information service providers or telephone companies to obtain journalists’ accounts, and an opportunity to challenge them in court.  This provision now explicitly covers National Security Letters issued under the Patriot Act, and provides that they will be treated just like other requests for information from communications service providers.

On the downside, in addition to the compromise on the standard for criminal cases, which places a heavy burden of proof on reporters, it is unfortunate that the legislation does not protect nonconfidential material, such as information contained in reporters’ notes and outtakes.  Still, the bill represents a tremendous improvement over the status quo.  RTDNA urges its members to reach out to Senate Judiciary Committee members and their staffs to support the compromise bill and encourage them to allow an up or down vote on the legislation.