CNet June 14, 2007
Anne Broache

The latest draft of the Free Flow of Information Act would pose a grave threat to national security and federal criminal investigations by protecting far too large a segment of the population, a U.S. Department of Justice official told Congress.

A correction was made to this story. Read below for details.

"The definition is just so broad that it really includes anyone who wants to post something to the Web," Rachel Brand, assistant attorney general in the Justice Department's Office of Legal Policy, said at a House Judiciary Committee hearing here. She also argued it would protect "a terrorist operative who videotaped a message from a terrorist leader threatening attacks on Americans."

Justice Department opposition has bedeviled Congress throughout its numerous attempts in recent years to enact federal shield laws. Supporters say such legislation is needed in light of high-profile cases involving New York Times reporter Judith Miller and what free-press advocacy groups characterize as a sharp rise in subpoenas to reporters in recent years.

Laws recognizing some form of "reporter's privilege" already exist in 49 states and the District of Columbia--but, crucially, do not shield journalists from federal prosecutors. The Bush Administration claims there's no evidence that source-related subpoenas to reporters are on the rise and argues that it already has robust internal guidelines, including a requirement that the attorney general personally approve such subpoenas and provide an appropriate balance between press freedom and investigative needs.

This year's Free Flow of Information Act, which has been introduced in both the House and Senate, proposes a protection for a broader swath of people than earlier versions. It covers anyone engaged in journalism, which is defined as "gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public."

Even those covered individuals could be forced to give up their sources under certain circumstances, including when it's clear that crimes have been committed, when "imminent or actual harm" to national security could occur, or when trade secrets, nonpublic personal information or health records are compromised in violation of existing laws.

The hearing, which lasted about three hours, highlighted again the tensions that have arisen as the traditional mainstream media continues to overlap and collide with Internet-based upstarts.

On several occasions, politicians from both parties questioned whether the bill should be so expansive as to include bloggers. Some bristled at the notion that the ease of publishing online could provide cover for those who want to leak sensitive information and get away with it.

"I'd say anyone who didn't want to face legal action would immediately try to put up a blog and try to get journalistic protection," said Rep. Brad Sherman (D-Calif.), adding that he hoped to work with his colleagues to refine that definition.

But even one of the bill's opponents, George Washington University Law School professor Randall Eliason, said, "anything narrower is going to run into severe First Amendment problems."

William Safire, a longtime New York Times columnist and former Nixon administration speech writer, praised the bill's current definition because he said it focuses on the actions characteristic of journalists, not their affiliations.

"Whether you're a blogger or whether you're The New York Times or CBS or The Wall Street Journal, if what you are doing is aimed at informing the public, then you're a journalist, whether you get paid for it or not," he said. (The New York Times, the National Association of Broadcasters and other journalism groups have endorsed the latest bill, according to its sponsors.)

At Thursday's hearing, the bill's chief sponsors, Reps. Rick Boucher (D-Va.) and Mike Pence (R-Ind.), never directly addressed the issue of the journalist definition they crafted. Boucher told CNET News.com in an interview earlier this year that they intended to include bloggers "who are regularly involved in newsgathering and reporting." Any refinement of that definition would be left up to the courts.

Instead, the bill's sponsors continued to tout the necessity of passing their measure as soon as possible. The measure, Pence said, "is not about protecting reporters, it's about protecting the public's right to know."

Some Republicans said they opposed the bill more broadly because they believed it would give undue protection to anyone who publishes false or irresponsible information. Former Judiciary Committee chairman Jim Sensenbrenner (R-Wis.) cited a New York Times story last year about a government computer system to track money laundering by terrorists as an example of a situation in which a news outlet harmed American national security interests.

"I don't see very much responsibility there," he said. "It seems to me the burden of proof in showing a press shield will be used responsibly should be on the news media."

Correction: Due to an editing error, this story misstated the day of the week the Bush administration criticized a congressional proposal that could let bloggers protect sources in some cases. The day is Thursday.