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.
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.
The efforts to punish “illegitimate” news are already underway. Former NSA chief Gen. Keith Alexander stated in early March that he is pushing “media leaks legislation” in the coming weeks that is clearly targeted toward whistle-blowers and their publishers. And the federal government, particularly the Obama administration, already uses the Espionage Act of 1917 to cleanse the nation of what it deems “illegitimate” news by punishing whistle-blowers and bringing secret investigations of publishers.
Perhaps these compromises would have a shred of justification if they achieved some positive outcome for some media. Notwithstanding the bill’s inspiration—subpoenas and even extended litigation (in the case of James Risen of The New York Times) of high-profile national security journalists—the current version has broad exceptions for national security. A prosecutor may overcome the shield by showing that the information sought would “materially assist” the government in “preventing” or “mitigating” an “act of terrorism”—a definition the Department of Justice can and will argue covers nearly anything. The legislation also instructs judges to give “appropriate deference” to the executive branch’s decisions on national security. Consider that a District Court judge wrote in early April dismissing the Al-Aulaqi v. Panetta case (concerning a drone strike that killed a U.S. citizen without any due process) that executive branch officials must be “trusted.” Judges certainly do not need to be told to trust the executive more.
The umbrella of terrorism is now bigger than ever. This administration takes the position that national security whistle-blowing aids crimes against the state. Notably, prosecutors tried to put Manning away for life for “aiding the enemy” by providing documents that were ultimately published by The New York Times. The government uses this language not just with whistle-blowers, but with journalists too. James Rosen of Fox News was accused of being “an aider, abettor and/or conspirator” of a national security source.
Another problem with the bill is that it addresses only subpoenas, one of several ways for the FBI and DOJ to identify whistle-blowers. It fails to deal with surveillance, which is easier and less politically costly. Lawyers for the CIA, FBI and Pentagon reportedly acknowledged to journalists, ominously, “You can get a shield law, but you’ve probably seen your last subpoena. We don’t need you anymore.” Perhaps it would be better to invest the resources spent lobbying for this legislation in educating journalists on using data security and anonymity tools.
The FFIA is part of a broader campaign to try to box out organizations that have the courage to give a voice to whistle-blowers. It is clear that the legislators behind the bill view The Intercept and WikiLeaks as bargaining chips whose exemption will get the measure passed. Worse, it is doubtful the bill does what it sets out to do. And the stage is being set for the government to fully go after independent journalists and whistle-blowers through legislation like Alexander’s. Really, it must be asked, what’s the point?
Carey Shenkman is a First Amendment scholar working in New York City for Michael Ratner, president emeritus of the Center for Constitutional Rights. He can be reached @CareyShenkman on Twitter.