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What’s the Point of a Source Protection Law That Wouldn’t Protect Chelsea Manning or Edward Snowden?

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Posted on May 19, 2014

By Carey Shenkman

    Whistle-blower Chelsea Manning. (AP/Patrick Semansky)


Laws are bad when they don’t do what they are meant to and even worse when they cause harm instead. The journalist-source protection law being debated by Congress—the Free Flow of Information Act (FFIA or “federal shield law”) fails in both respects. Despite being pushed by media organizations after Associated Press reporters and other journalists were served court orders last summer, it is doubtful that the proposed law will meaningfully protect anyone. Instead, it sets the stage to punish whomever the government decides are “illegitimate” journalists.

Indeed, any outlet committed to giving voice to whistle-blowers—such as The Intercept or WikiLeaks—is not considered a “covered journalist” under the measure. Sen. Chuck Schumer, D-N.Y., who drafted the bill, conceded that The Intercept’s Glenn Greenwald, whose coverage of whistle-blower Snowden’s releases won a Pulitzer for The Guardian, would probably not be covered. The FFIA would fail to protect Snowden, or Manning, who provided evidence of war crimes and military cover-ups to WikiLeaks. Both sparked unprecedented public debates on government accountability and suffered the full wrath of the federal government. In other words, they are precisely the sources we need a shield law to protect.

The FFIA does not include those “whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization.” This is colloquially called the WikiLeaks clause. But The Intercept is also in trouble owing to what its new editor-in-chief, John Cook, described in mid-April as a “commitment to continue the work of reporting on, publishing, and explicating” Snowden’s releases.

Certainly, Snowden came forward with his identity voluntarily and Manning was betrayed by a confidant, but this is no justification for crafting a law to exclude them. There will be more like them. The market for fearless government accountability publishing is small, and these sources are prime targets for subpoenas. Right now the traditional media still strongly support this bill, under the rationale that expecting perfection out of Washington is unrealistic. Schumer argued at a conference in March that the “perfect shouldn’t be the enemy of the good.” But in this case, the bad is the enemy of the good. Protecting Greenwald, Julian Assange and their sources is not perfection. It is a baseline.

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Designed to provide a confidentiality privilege for journalists, a shield law sets up something similar to a doctor-patient relationship for journalists and their sources. This means a police officer or FBI agent cannot get that information, even with a court order, unless there is some unusually strong justification for it. The current version of the shield law passed the Senate Judiciary Committee in September after a widely criticized compromise with Sens. Dianne Feinstein, D-Calif., and Dick Durbin, D-Ill. Schumer is confident the legislation will eventually pass the full Senate.

The compromised version is harmful because it will give political credit to Congress while creating a dangerous category of state-sanctioned journalism. The bill explicitly instructs judges to decide whether journalists are engaged in “legitimate newsgathering.” That language appears in a safety clause that the measure’s proponents say would protect nontraditional media. But judges are unqualified to decide what news is legitimate. More fundamentally, that language would potentially violate the First Amendment on grounds of content neutrality.

 


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