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August 28, 2015

Obama Asks Schumer to Reintroduce Reporter Shield Bill

Sen. Charles E. Schumer, D-N.Y., on Wednesday reintroduced reporter shield legislation, which failed to become law in 2009, in an attempt to respond to the controversy surrounding the Department of Justice and the subpoenaing of reporters’ phone records.

The White House — which is reeling this week from a string of controversies, including the kerfuffle between The Associated Press and the DOJ over whether the government overstepped its bounds in obtaining phone numbers of calls sent and received by reporters — asked Schumer to again move forward on the bill.

“This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case,” Schumer said in a statement.

Of course, the release announcing the bill added an important caveat, given the timing of the move: “It is unclear whether the bill would changed the outcome in the AP phone records case since a national security exception may have applied.” At the time the bill was originally approved by the Senate Judiciary Committee, it had the support of the administration and the media.

See a summary of the Free Flow of Information Act 2013, as provided by Schumer’s office, after the jump:

·         Protects journalists and their employers from having to reveal information, including source identity, that a reporter obtains under a promise of confidentiality and in the course of carrying out newsgathering functions.

·         Establishes a legal framework for determining the limited circumstances under which such protected information can be subject to compelled disclosure in court.

·         Provides no ABSOLUTE privilege for journalists. In every case, a party (usually the Government) will have to argue to a court its need for the information at issue.

·         Requires, in most cases, a court to apply a balancing test before compelling disclosure (public interest in disclosure versus public interest in newsgathering).

Delineates exceptions when the journalist has no privilege against the disclosure of information:

·          In classified leak cases: when information would prevent or mitigate an act of terrorism or harm to national security.

·      In regular confidential information cases (where a classified leak isn’t at issue): when information would prevent or mitigate, or identify a perpetrator of, an act of terrorism or harm to national security; and

·     In non-national security cases when the information would prevent or mitigate death, kidnapping, and bodily harm or when information was obtained by the journalist through observation or perpetration of a criminal act OTHER than an act of leaking.

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