The Free Flow of Information Act, is it Still Necessary?

By: Elizabeth Hempowicz

The summer has been rife with news stories concerning leaked government documents and semi-anonymous sources. However, this is not something that is unusual for news media. What is unusual is the revelation that the government subpoenaed journalists’ phone records and email correspondences in order to find intelligence about unauthorized information leaks.  In response to the backlash surrounding these revelations, the Department of Justice (“Department”) released a report last week with a revised set of guidelines on the rules governing subpoenas involving the records of journalists. However, in a troubling response, a CNN article reporting this release stated “The revised guidelines used by prosecutors nationwide will be implemented quickly. No congressional action is necessary.”

This is not a new issue for Congress. Congressional action could have prevented this proverbial thorn in the Obama Administration’s side, and in fact, such congressional action has been proposed. Twice, Senators Charles Schumer (D-NY) and Arlene Specter (R-PA) introduced a bipartisan bill titled The Free Flow of Information Act, once in 2007 and again in 2009 when the first bill failed to advance to the floor. The Act would have created a federal media shield law. In the wake of the AP and Fox subpoenas, two versions of the Free Flow of Information Act were again introduced in the House and Senate in May of this year, a move backed by the Obama White House. The newest versions of the Free Flow of Information Act would provide protection similar to the DOJ’s new guidelines, including an exception to the notice requirement for circumstances that would “pose a clear and substantial threat to the integrity of the investigation.”

The similarities between the proposed bills and the Department’s guidelines are to be applauded. For example law enforcement agents are no longer permitted to obtain search warrants aimed at gathering information collected by journalists unless the journalist is the subject of a criminal investigation unrelated to his or her duties as a journalist. A similar, if not harder to satisfy, stipulation was included in each of the versions of the Congressional bills. The 2013 Senate version required (1) an exhaustion of all other reasonable alternative sources, (2) that the information sought was “essential to the resolution of the matter,” and (3) that the applicant establish that “the interest in compelling disclosure clearly outweighs the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.” Additionally, the new guidelines seem to have incorporated a form of notice requirement put forth in lower bills: H.R. 2102, S. 448, and S. 987.  The previous presumption was that no notice was necessary unless the Attorney General determined it would not harm the investigation, but now the assumption is to give notice unless such notice would pose a clear threat to the investigation.

However the most notable and surprising modification in the new guidelines happens in a short section at the bottom of the fifth page. Under the header “Technical Revisions,” the report extends the protections under the guidelines to any communications or business records stored with third parties. To those unfamiliar with the third-party doctrine, a simple explanation is that you lose Fourth Amendment protection against search and seizure when you voluntarily share any information or documentation with a third-party, a point that has been a major contention for privacy advocates in the digital age. This is a big acknowledgement from the administration, especially in the wake of the National Security Agency’s use of the business records section of the Patriot Act and third-party doctrine to justify the collection of American’s metadata.

The new guidelines are a move in the right direction, especially with a sluggish Congress. However, are the guidelines too small of a step in the right direction? Journalists have applauded the long awaited reform but are still hopeful for a federal law to codify their protections. The White House called the new guidelines “an important step towards finding the balance between dealing with dangerous leaks of classified national security information and protecting the rights of journalists to freely gather and report the news,” leaving open the door for a narrative on journalists’ rights and protections and seemingly dispelling the notion that this is the last we have heard of this issue.

Even Attorney General Eric Holder, the man who signed the subpoena for the Fox reporter’s email communications, said in his statement following the release of the new guidelines: “While these reforms will make a meaningful difference, there are additional protections that only Congress can provide.  For that reason, we continue to support the passage of media shield legislation.” This type of law making is best served by Congress, but it remains to be seen if this latest round of revelations can be the impetus for the bipartisan cooperation necessary to pass this important piece of legislation or if it will work the other way, allowing Congress a buffer to drag their feet a little longer. Finally, following the most surprising inclusion in the new guidelines, it will be interesting to see how the government’s new stance on the third-party doctrine plays out in relation to other Fourth Amendment concerns and issues facing the American people today.

The full text of the report on the Department’s news media policies can be found here.

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