H.R. 2102 FAQ



WHAT: A federal shield law would provide important and balanced ground rules for when the confidential relationship between reporters and their sources can be protected. While thirty-three states and the District of Columbia have state shield laws in place and 16 other states have recognized a privilege through court decisions, no federal shield law exists to provide similar ground rules at the federal level for shielding or compelling a reporter's confidential source.
STRONG BI-PARTISAN SUPPORT: U.S. Representatives Rick Boucher, D-Va.; John Conyers, D-Mich., Chairman of House Judiciary Committee; Mike Pence, R-Ind.; Howard Coble, R-N.C.; Greg Walden. R-Ore.; and John Yarmuth, D-Ky. The bill is currently co-sponsored by 43 Democrats and 24 Republicans.
WHY: More than 40 reporters have been subpoenaed or questioned about their confidential sources, their notes, and their work product over the last few years in criminal and civil cases in federal court. In recent weeks, five more reporters were issued subpoenas for their confidential sources in the Steven Hatfill against the federal government. Dr. Steven Hatfill is suing the government under the federal Privacy Act for being named a “person of interest” in the 2001 anthrax investigation.

Reporters are now becoming the first stop, rather than the last resort, for civil litigants and prosecutors attempting to obtain the identity of confidential sources.

THE HARM: Groundbreaking stories, such as conditions at Walter Reed Army Medical Center, the Abu Ghraib prison scandal and baseball steroid abuse, would not have been possible without confidential sources. Forcing reporters to disclose sources and other information obtained in confidence creates the appearance that journalists are – or can be – used as an investigative arm of the judicial system.

As Justice Potter Stewart wrote, “When neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury's subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished.”

The proliferation of subpoenas to journalists is having a chilling effect on the flow of information to the public.

IS IT AN ABSOLUTE PRIVILEGE? No, a confidential source's identity can be compelled if disclosure is necessary to prevent “an act of terrorism against the United States or other significant specified harm” to national security, or to identify a person who has disclosed trade secrets or certain financial or medical information in violation of current federal law. The compelling party must also satisfy a public interest balancing test. Under this test, a court must find “that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information.”

The bill's sponsors have recently made changes in a “Manager's Amendment” to address national security and business interest concerns. The changes reflect a reasonable and well-balanced compromise.

SUPPORTERS: A working alliance of more than 40 media companies, media organizations and journalist groups support the passage of a federal shield law today and applaud re-introduction of the “Free Flow of Information Act of 2007.”

Thirty-four state attorneys generals have also pointed out to the Supreme Court that lack of a clear standard of federal protection undermines state law.

OPPONENTS: Some in the business community have expressed concerns that the legislation would lead to individuals releasing trade secret or personal medical/financial information. The bill's sponsors have included provisions in the bill to address these types of releases. Moreover, this legislation does nothing to preempt or disturb state and federal trade secret laws already on the books. State shield laws and trade secret laws have co-existed for years.

The Department of Justice (DOJ) opposes the legislation, even though the bill tracks, in large part, the principles embodied in the DOJ's own guidelines for when the media can be subpoenaed for confidential source information. And, the bill goes above and beyond what is required by the DOJ guidelines by providing for compelled disclosure under certain circumstances, including threats to national security, bodily harm, and certain disclosures of trade secret, medical and financial information.

The DOJ has publicly testified that its guidelines have worked well. Media companies and organizations agree and call on Congress – in a sense – to codify the guidelines so that these important ground rules also apply to special prosecutors and civil litigants, which have been the principal source of media subpoenas in recent years.

CAN THIS WORK? Yes, it is already working in 33 states and the District of Columbia, which already have “shield” laws in force in state courts. Passing a federal shield law would provide similar standards at the federal level for when testimony and information can be sought from reporters.