Digital Media and Data Privacy Law Blog

The Senate Judiciary Committee is slated this week to take up compromise language on the Free Flow of Information Act of 2009 (S. 448), endorsed by Attorney General Eric Holder, which may finally result in passage of a federal shield law.

As we previously reported, federal shield bills were again introduced in Congress this year, after many years of frustrating defeats. Although a shield bill passed in the House, the bill unexpectedly hit a snag in the Senate. To the surprise of many observers, the Obama administration objected to the bill on the grounds that it gave insufficient latitude to the executive branch to issue newsroom subpoenas seeking information relating to matters of national security.

The proposed shield bill languished during the summer and early fall, its fate uncertain. Two weeks ago, however, Senate sponsors Chuck Schumer and Arlen Specter announced that a deal had been struck with the Obama administration.  Last week, Attorney General Holder's office released a letter publicly supporting the revised language.  Significantly, this letter represented the first Presidential administration to publicly support a federal shield law.

The compromise departs from the bill as originally introduced in several ways.  First, the definition  of a covered "journalist" is broadened to include unpaid bloggers as well as paid employees of media organizations.  However, the bill expressly excepts from that definition anyone who is reasonably believed to be using the shield to protect an act of terrorism.  

The compromise also differentiates the burden of proof required in criminal and civil cases, with the journalist having to show by clear and convincing evidence that disclosure would harm the public interest in criminal cases, and the party seeking disclosure having to show that disclosure would be in the public interest in civil cases. 

The compromise language retains a national security exception, albeit narrower than the Obama administration had initially suggested.  The exception reflected in the compromise language would require disclosure if the sought-after 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.”

Media outlets and journalist organizations are urging members of the Senate Judiciary Committee to report the bill favorably as revised so the legislative process may proceed in the Senate.  We will continue to monitor the progress of the proposed federal shield law.