Holder expresses support for federal shield bill amendments adding judicial role to notice process

Jeff Zalesin | Reporter's Privilege | News | July 30, 2013

The Department of Justice is backing a bipartisan effort to turn parts of the department's report on news media policies into federal shield law provisions, Attorney General Eric Holder announced yesterday in a letter to the Senate Judiciary Committee chairman.

At a markup session scheduled for Thursday, a group of senators from both parties will try to amend the Free Flow of Information Act, S. 987, to create judicially enforceable requirements modeled after some of the internal guidelines Holder recommended in the July 12 report.

“Notwithstanding the significant modifications the Department intends to make to its policies with respect to investigations involving the news media, certain measures will require legislative action,” Holder wrote to Sen. Patrick Leahy, the Democratic committee chairman from Vermont. “As provided in the substitute amendment to S. 987, for example, a media shield law could establish a mechanism for advance judicial review of investigative tools such as subpoenas when they involve the news media.”

The Justice Department informed The Associated Press in May that it had subpoenaed records on two months’ worth of AP phone calls in connection with a leak investigation, giving no advance notice to the news organization.

Amid the public outcry over the AP subpoena, the White House directed Holder to review the department’s media policies and asked Sen. Charles Schumer, a New York Democrat, to reintroduce the Free Flow of Information Act. Shield bills are now pending in committee in both houses of Congress.

Under the Senate’s bill, the Justice Department would have to notify journalists immediately when it seeks access to their newsgathering records, unless a federal judge grants a delay to avoid compromising the government’s investigation. The proposed amendment would make it impossible for the department to put off providing notice for more than 90 days.

The idea for a 90-day cap on notification delays originated as one of the recommendations in Holder’s report. But the new shield amendment would go one step further, giving judges the authority to override the Attorney General’s determination about how long the department should wait before telling journalists that their records have been subpoenaed.

The shield amendment would also expand the range of third-party documents to be protected by a qualified reporter’s privilege, covering business records like credit card bills as well as communication data. This change would make the shield bill consistent with the Justice Department report, which relates to all kinds of newsgathering-related records.

The Justice Department guideline revisions and the push for a federal reporter's privilege come in the context of the Obama administration's aggressive crackdown on leaks of confidential information to reporters. In addition to the controversy surrounding the AP phone records, the administration has faced criticism over a 2010 FBI affidavit seeking to search Fox News reporter James Rosen’s e-mail account, published this year by The Washington Post. To obtain the search warrant, investigators labeled Rosen as a suspected “co-conspirator” in an Espionage Act violation.

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