Monday, September 01, 2008

The AG is Scared of this Blog

The country’s top law enforcement and intelligence officials are concerned about legislation in the Senate that would create a statutory federal shield law for journalists. About a week ago, Attorney General Mukasey and Director of National Intelligence McConnell wrote Senate leaders a letter detailing perceived flaws in the Free Flow of Information Act of 2008. The bill would protect journalists against compelled disclosure of information they receive from confidential sources. The House voted overwhelmingly to pass the legislation, with some meaningful differences, last October.

The letter raises several objections, most falling comfortably within the Administration’s rule that courts should not second guess the executive branch on national security issues. Of particular interest to this Dorf on Law contributor is the officials’ complaint that the bill “would have the effect of affording a broad ‘journalist’ privilege to a potentially limitless class of people,” including those whose work bears “little resemblance to any traditional or commonly understood notions of journalism.” A footnote makes clear that the authors are specifically worried about the “huge and constantly changing community of bloggers and other amateur publishers.”

Should folks who aren’t members of the mainstream media receive protection? While most free press advocates would be inclined to say yes, there is reason to pause. Most of us think of the institutional press as an industry that aspires to certain professional ideals: objectivity, accuracy, relevance, restraint, measured respect for privacy, etc. Our willingness to provide heightened protection to journalists may stem, in part, from our belief that they act in a way that entitles them to special protection. And while traditional news organizations often fail to be as, um, fair and balanced as they claim to be, a typical newspaper or broadcaster is probably much more “professional” than a typical blogger. (For a recent discussion, see this New Yorker piece.) Therefore, if we assume that some information is truly damaging to national security, the government may have a strong interest not only in keeping such information classified, but also in doing what it can to channel inevitable leaks into the hands of journalists that will responsibly report the information, instead of amateur bloggers who might sensationalize or inaccurately report the news.

Additionally, there are formal and informal lines of communication between the institutional press and government officials. When a newspaper reporter uncovers sensitive information, officials have the chance to persuade editors to delay publication or to not run the story at all (see, e.g., The New York Times coverage of the wiretapping program), or at the very least to contextualize the information and to try and take some of the sting out of it. If I, on the other hand, were to receive a leaked copy of The Pentagon Papers 2: Revenge of Iraq, even if I wanted to, I would have no idea how to get past the switchboard at the Department of Defense, and I am ill-equipped to responsibly edit the leaked information on my own.

We should not, however, be so quick to dismiss the value of bloggers as news sources. According to a 2008 survey by The Pew Research Center for People and the Press, ten percent of the public regularly reads blogs about current events and politics, a number that is likely to grow over time. And bloggers are not only commenting on news generated by the mainstream media, they sometimes scoop traditional media on important stories. For example, Joshua Micah Mashall of the blog Talking Points Memo won a George Polk Award for his coverage of the U.S. Attorney firings scandal. And many lawyers are familiar with David Lat’s original reporting on the legal industry over at Above the Law. Lat’s ability to report on salaries, benefits, and employment trends at law firms is due in large part to tips from, presumably, young legal associates who do not reach out to The National Law Journal or other traditional media to pass on information.

So what should Congress do? I think it would be a mistake to limit protection to traditional media. Through its definition of protected journalists (“covered person”), the bill excludes casual bloggers and others who do not have the trappings of traditional reporters. The bill only offers protection to someone who, “with the primary intent to investigate events and procure material in order to disseminate to the public news,” “regularly . . . reports on such matters” by interviewing, directly observing events, or collecting original writings and other material. Further, that person can only defeat compelled disclosure of the information if she received such information with the primary intent to investigate events at the “inception of the newsgathering process.” Foreign powers, their agents, and terrorists are excluded. Finally, only information that was obtained through a promise or agreement of confidentiality is protected (on this point, the House bill is broader).

In light of these limitations, the AG's and Director’s concern about bloggers appears unfounded. Only a tiny fraction of bloggers regularly report on the news through the bill’s traditional investigative reporting methods, and even many traditional journalists would be denied protection when it came to information that they happened upon (lacking an intent at the inception of the newsgathering process) or that was not obtained through a promise of confidentiality. So the Senate has already found a viable way of extending the privilege to the Joshua Micah Marshalls of the blogoshpere, while denying it to the David Crowleys. This may be underinclusive, but for now, I can live with that, and unless the AG and Director offer more persuasive arguments, they should live with it too.

[UPDATE: A commenter asked about the scope of the bill. To clarify, the bill does not merely address the scenario in which the government is seeking information about a leak of confidential information. Rather, the bill covers, with some exceptions and limitations, any information (not just leaks or matters pertaining to national security) sought by anybody (not just the government). In responding to the officials, though, I focused on the example of a leak because their letter primarily discusses a section of the bill that deals with that particular situation. To be fair to the AG and DNI, though, their concerns extend beyond the leak scenario. The arguments raised here for and against a blogger's privilege may, of course, have greater or lesser force in other scenarios.]

-Posted by David Crowley


egarber said...

What kind of burden do the bills put on the government? Can it even pursue non-national security matters? Or put another way, suppose Anderson Cooper didn't have a confidentiality agreement with a leaker who revealed something about say, a highway bill. Could the government compel him to reveal the source?

David Crowley said...


My apologies if my oversimplified description of the bill caused any confusion, my aim was to focus on the blogger issue. To answer your question, the bill is not limited to national security investigations. I focused on that issue mainly because it seemed to be the animating concern of the officials' letter, and I relied on the hypothetical situation in which law enforcement seeks information about a government leak because it seemed like a simple example, and because a narrow part of the bill deals exactly with that issue. What I should have made more clear (and will in an update) is that generally speaking, the bill covers any information (not just leaks, and not just national security information) sought by anybody (not just the government).

To elaborate on the mechanics: On my reading, the bill would apply to ordinary criminal or civil proceedings before, say, the SEC, a federal trial court, or an administrative law judge. Those federal entities cannot compel disclosure until the issue is brought into and resolved by a federal court. The court can order disclosure only if it first finds, by a preponderance of the evidence, that the party seeking disclosure "exhausted all reasonably known alternative sources of the protected information." In a criminal investigation or prosecution, the court must further find that (1) there are reasonable grounds for believing a crime occurred (relying on a source other than the covered person), (2) there are reasonable grounds for believing that the protected information is essential to the investigation, prosecution, or defense (relying on a source other than the covered person), and (3) "nondisclosure of the information would be contrary to the public interest, taking into account both the interest in compelling disclosure (including the extent
of any harm to national security) and the public interest in gathering and disseminating the information or news conveyed and maintaining the free flow of information." In noncriminal proceedings, the court must find that (1) the information sought is essential to the resolution of the matter (relying on a source other than the covered person), and (2) "the interest in disclosure clearly
outweighs the public interest in gathering and disseminating the information or news conveyed and maintaining the free flow of information."

That's still an oversimplified version of the bill---there are significant exceptions and express limitations, including one for threats to national security---but hopefully it lays out the general mechanics somewhat more clearly. To address your hypothetical, Anderson Cooper's information wouldn't qualify for protection because it was not obtained as part of a confidentiality agreement; the Senate bill covers only confidential sources and information. But supposing it was a confidential leak, you, I, or the executive branch could go to federal court and attempt to compel disclosure. As noted above, it doesn't matter that the information doesn't pertain to national security.

egarber said...


No need to apologize -- it's my ignorance that drove my questions, not anything lacking in your post.

But thanks a ton for the detail.

One last question, just so I can grasp it:

Do the mechanics and burden you lay out apply in all cases where "journalists" are involved? Or is it that a journalist triggers that heightened burden only *if* the initial conditions are met -- intent at inception, having a confidentiality agreement, etc.?

Or I guess a simpler way of asking: is it much easier to compel disclosure if the journalist hasn't met those initial conditions -- i.e., in that case, is the journalist just like an average party with no special protections?

Thanks again!!

David Crowley said...

is it much easier to compel disclosure if the journalist hasn't met those initial conditions -- i.e., in that case, is the journalist just like an average party with no special protections?

Yes. The bill never mentions "journalist," "reporter,"or anything like that. Rather, the privilege is afforded exclusively to a "covered person," and such person is defined as I described in the post. If a non-covered person---e.g., one who didn't plan on disseminating the news to the public at the inception of the newsgathering process---shows up in court asserting the privilege, the court would, on my reading, simply reject the claim outright. In other words, those "covered person" criteria are threshold issues that one must establish in order to put the burden on the party seeking disclosure to convince the court, by a preponderance of the evidence, that he's exhausted all other means of discovering the protected info, etc.

So a journalist is in the same position as any ol' blogger, amateur writer, or anyone else at the outset; there's no free pass for someone who shows that he's employed by Newsweek. Nevertheless, through its definition of "covered person," the bill is clearly trying to protect traditional journalists and those whose work and methods closely resemble the work and methods of traditional journalists.

egarber said...


Thanks so much for the detailed analysis. Thorough and smart responses like this are why DOL is such a valuable resource...

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