Randall D. Eliason suggests in his opinion piece, "Shield Law Not the Answer to AP Flap" [ NLJ, May 27], that enacting a shield law in response to the federal subpoena of Associated Press telephone records would be a "feel-good gesture that makes little sense." He argues that the shield wouldn’t have — and shouldn’t have — protected the records at issue, which involved a story on a bomb plot in Yemen foiled by the CIA, and concludes that if "safeguarding classified information is important enough to warrant prosecution, why would we also pass a law making that crime almost impossible to prove?"
What he misses is this: The public’s interest is not always consistent with the government’s interest in prosecuting crime, and it is perfectly acceptable that in some cases, government prosecutors can be restricted in their efforts, even to the extent of not finding the source of unauthorized disclosures, in the name of accountability to the public. Eliason, as we would expect from a former federal prosecutor, comes down squarely on the side of prosecuting unauthorized disclosures. But the noblest thing that any government can do is recognize limits on its own power. During the past decade, the public discourse over national security issues has risen dramatically, while the government’s efforts to conceal information has ballooned even more. It is inevitable that many issues of legitimate public interest will be understood only if some information "relating to the national defense" (the standard from the Espionage Act) is disclosed in apparent violation of the law.
Reporters generally — but not always — are wise enough to consider the national security implications of what they say when they’re dealing with confidential information. That’s why AP went to the administration about what it knew before releasing it, and why there have been numerous examples of other news organizations presenting their information to the government before going to press, and often delaying publication. A shield law would help smooth the process of dealing with these issues.
The proposed bills specifically cover materials held by communications service providers, and the heightened standard required before compelling disclosure — that the information is "essential" to the prosecution’s case — would certainly have limited the scope of the AP search warrant and subpoena. It would be almost impossible to argue that all of a journalist’s email or phone records are essential to any case. The shield law would also require that all other reasonable sources of the information have been exhausted before going after the reporter’s information. The thought that the AP subpoena was issued as a "last resort" was undercut the week after the AP disclosure made the news, when the much earlier search warrant application for the phone records of an unidentified reporter — identified later as Fox News correspondent James Rosen — came to light. As the affidavit makes clear, there followed a search for even more records, specifically the email account of the reporter. This came out of the office of the same prosecutor who sought the AP records. It is impossible to believe that reporters’ records are being sought as a "last resort" when the Rosen affidavit admits to an open-ended search for more information and sources.
The notice requirement for third-party records in the shield law, which can be overcome only by "clear and convincing evidence" that it would pose a substantial threat to the integrity of an investigation, would also help assure that prosecutors would have to take greater care in their requests, since media attorneys would be able to appear before the judge, rather than prosecutors deciding these matters ex parte.
The bill would give a news organization the opportunity to rebut the argument that "disclosure of the protected information would be contrary to the public interest," because the court would have to weigh the competing interests. In addition, all subpoenas to the media would have to be "narrowly tailored in purpose, subject matter, and period of time covered."
And the Senate version of the law would exempt subpoenas in leak investigations if the information sought would "materially assist the Federal Government in preventing or mitigating (i) an act of terrorism; or (ii) other acts that are reasonably likely to cause significant and articulable harm to national security." This standard should not affect an after-the-fact investigation when there is no ongoing threat to the national security, or at the very least would affect the balancing of interests in determining whether a subpoena for newsgathering materials should be upheld.
Eliason does suggest some common ground with the news media when he says, "Perhaps the debate we should be having is about reforming the laws that govern how and when information may be classified." But until then, a strong federal shield law is needed to protect reporters who are "aiding and abetting" the disclosure of important information about the government, in the name of holding the government accountable to the people.
Gregg P. Leslie is the legal defense director of The Reporters Committee for Freedom of the Press. The organization has been involved in the efforts to enact a reporter’s shield law, and led a coalition of news organizations in objecting to the attorney general about the AP subpoena.