Recent news that the U.S. Justice Department obtained telephone records for two months covering more than 100 journalists working for the Associated Press has prompted lawmakers to propose new statutes meant to strengthen protections against the kinds of requests that our Jeff Kosseff described as “undermin[ing]” the “entire Fourth Estate.”
First, in both the House and Senate, the Free Flow of Information Act, which would create a federal journalists’ privilege, is again being considered in the wake of the AP controversy. In the House, Representatives Conyers and Poe introduced on Thursday, May 16, a version of the Free Flow of Information Act that is similar to the version of the Act that passed the House in both 2007 and 2009. In the Senate, Senators Chuck Schumer (D-NY) and Lindsey Graham (R-SC) have urged their colleagues to support the version of the Free Flow of Information Act that they introduced on Friday, May 17. The Senate version of the Act is identical to the version of the legislation that was voted out of the Senate Judiciary Committee on a bipartisan 15-4 vote in 2009. Most states – 49 out of 50, plus the District of Columbia – have either reporters’ shield laws or common-law protection for journalists that require court approval before state officials can obtain journalists’ confidential source material and records. But those laws do not apply to process issued by federal court because there is no federal shield law. Some federal courts recognize a qualified privilege against disclosure for journalists, but in the absence of a shield law, protection is uneven and uncertain. The New York Times reported that the Obama administration had urged Sen. Schumer to revive the bill in the wake of criticism over the AP scandal.
Second, a bipartisan group of House members introduced the Telephone Records Protection Act, H.R. 2014, which would mandate that federal agencies must receive a court order before obtaining phone records from any telephone subscriber. Under current law, a court order is necessary for a wiretap but “basic subscriber information” — including call records — can be obtained by federal prosecutors without court involvement. Members who introduced the bill include Justin Amash (R-MI), Zoe Lofgren (D-CA), Mick Mulvaney (R-SC), and Jared Polis (D-CO). According to Rep. Polis’s website, the bill “would require the government to state ‘specific and articulable facts’ that prove to a court that the information sought is ‘relevant and material to an ongoing criminal investigation.’”