But, I have to say, I’m starting to feel really disappointed in the lack of outrage journalists are having to the Gizmodo raid. Maybe I’ve completely missed it, but we should be up in arms here!

And by “we,” I don’t just mean Webby nerds, tech geeks or digital dorks. By “we,” I mean journalists in every newsroom cross platform, across the country.

Where is the statement by the Society of Professional Journalists? The American Society of News Editors? The Online News Association, for heaven’s sake!?!?

If you missed it, Gizmodo posted a recap from their point of view, but here’s my understanding: (Note: You could easily do a search-and-replace here and change “lost” or “found” to “stolen” … or can you? Too soon to say.)

Act I: A new, prototype Apple iPhone was “lost” at a bar in the Bay Area. When this news first broke, many of us thought it was a crafty Apple P.R. stunt rather than a bonehead mistake. Turned out it was the latter and the bonehead employee was later named.

Act II: The “finder” of the phone allegedly attempted to contact Apple to make it aware of the misplaced device… but in the end, Gizmodo paid an estimated $5000 to get their hands on the “found” iPhone.

Act III: After Gizmodo posted a video and photos showcasing the “found” iPhone, it received a memo from Apple asking for their missing property back. The device was “bricked,” or remotely deactivated and made useless, presumably by Apple.

Act IV: Police raided the home of the blogger/reporter who posted the Gizmodo item. They actually knocked down his door while the blogger was not home and seized several pieces of equipment, which included laptops, iPad and more. The police have halted their investigation, once someone pointed about that the blogger is more than likely covered by the federal and state shield law.

Act V: ??? Who knows, but I can’t wait to find out.

Again, let’s get certain things out of the way here.

Yes, Gizmodo practiced checkbook journalism to purchase the iPhone. This is not a practice many of us do, condone or can even afford. But, sorry y’all, this type of journalism exists and is more common than we’d like to think. (One word: Paparazzi.)

Second, no matter the quality of it, Gizmodo is actively doing journalism. It’s not part of a legacy masthed, but one that was built by covering tech news — and it does so fairly well.

Third, you and I don’t know the details yet of how that phone was truly acquired. Hell, if Gizmodo was smart, they probably didn’t ask. But the device was acquired… someone leaked it… someone lost it… someone stole it… but the “it” was, and still is, big news. (Did you know Nokia has a missing device? I’m guessing not. Why? Because it ain’t an iPhone.)

Lastly, a journalist’s house was raided by authorities in connection to the device that he openly admitted and publicized he had. Don’t you think that was a little over the top?

So, I am asking myself, why aren’t we more pissed here? Where is our journalistic outrage? Where is the angry mob with pitchforks defending the first amendment right?

Would we be more outraged if instead of the phone it was some classified government document? Or if instead of a corporation like Apple contacting the authorities, it was the government?

Y’all, this is one of the biggest stories in modern journalism and we need to be on top of this… we need to get angry… we need to pick up our pitchforks pens and craft, at the very least, a statement that says this is not okay!

I love Apple too, but I love journalism more.

The media shield bill that frequently seems poised to whisk through Congress, but has incurred several discomfiting delays, is a bad idea unless it gets one big change.

And isn’t it odd that the shield bill is revving up with its sprint-to-the-finish momentum, and the mainstream media would be gaining a significant new power, just when …

Just when these same media are declining precipitously in readership and finances, are at an all-time low in public believability as measured by the recent Pew research report, and have relatively few reporters left investigative or otherwise who would avail themselves of such a law.

Let’s call it for what it is, a power grab. As many states already have their own shield law, this is an attempt to cram one down the throats of those who have declined to grant the media such a privilege, or have done so in tepid fashion. If it passes as is, the press would have virtually unlimited power in reporting.

Back in the ’80s, I would have been a kneejerk and enthusiastic supporter of this bill. I was fortunate to be the leader of an investigative team at the Detroit News when it was a big, robust paper … the nation’s ninth largest daily, and the seventh largest Sunday edition. I oversaw half a dozen reporters and could tap more if needed. So from the stories we did, I think I’m well enough aware of the need for confidential sources and to protect them. Often, there’s no other way to expose wrongdoing.

That was then, now is now. Now I’ve been out of the journalism biz for eight years and have a hopefully broader view.

The big change I’d like to see is this: if the story goes to trial, the judge should have the discretion to disallow the confidentiality protection of the sources if the reporter has made any significant errors or if the sources’ information is wrong or unfair.

If the reporter has screwed up or been dishonest or been suckered, why should he/she be protected?

Without this change, the law is a bad idea for the public because the rights of the subjects of the stories and possibly others affected are totally ignored. And it might be a bad idea for the press itself because one can easily foresee it backfiring during a libel trial that centers on wrong and harmful information.

Imagine the press attorney smirkingly telling the jury that ha-ha, no we’re not going to tell you where this bad information came from because we don’t have to, and no you can’t hear from these sources themselves to make sure the reporters didn’t goof in claiming what was confided to them. Juries don’t like parties in a case with their noses in the air, or sensing that the deck has been stacked, and the reporter defendants might get an unpleasant surprise when they hear the verdict.

The glitches in the shield law’s consideration in recent years have centered on national security provisions and whether bloggers et al would be included for eligibility in this shielding. The various sides all had worthy considerations, and these aspects have been amply debated.

What’s being rushed through with no attention is the underlying basis of the bill … that reporters are perfect little angels who would never ever abuse the use of confidential sources, and that these sources are always totally honest and aboveboard with no hidden agenda.

Anyone who wishes to openly make that argument, be my guest.

The efficacy of the bill depends upon the public trusting reporters, yet the public doesn’t trust reporters.

More sophisticatedly, the argument is made that only the most experienced, the most talented, the most determined and the most ethical reporters would be doing the investigative stories that would be protected, and therefore the law is needed to safeguard these paragons.

So how do you explain what happened at the Los Angeles Times?

In 2008, the Times was forced to retract a story, and reporter Chuck Philips publicly apologized, after the investigative website Smoking Gun exposed the fact that a jailbird confidential source he had relied on had given him forged documents in the case of an attack on rap star Tupac Shakur in which music executive Sean “Diddy” Combs was implicated.

The story was flat-out wrong and big star Philips … why, he had won a Pulitzer Prize … had been duped like the rawest rookie.

Yet if Smoking Gun hadn’t been around to help, and if the federal shield bill had been in effect, even someone as powerful as Combs would have been helpless to win redress and clear his name, since he undoubtedly would have been classified as a public figure. He and any other innocent person in a similar situation would have virtually no recourse as the victim of a false, harmful story based on false, harmful information from a shielded confidential source.

In two editorials since then that … surprise, surprise … soundly endorsed the shield bill, the Times somehow “forgot” to mention this embarrassing but relevant incident. If the paper cannot be trusted in its explications concerning the bill, how can it be trusted in its operations with unnamed sources that same bill would protect?

Here are three other real-life media situations that if you extrapolate from them, show why the shield law as presently constituted isn’t good.

MICHIGAN FOOTBALL. Last fall, the Detroit Free Press ran a sports expose in which six unidentified current and former University of Michigan football players said they were forced to practice far more than NCAA rules allow.

Anonymous sources should be used only as a last resort … only when there is a significant story being told and there’s no other way to get the information.

To me, in this case it was justified. If the players had gone on the record, they would have been ostracized by their teammates, given verbal abuse by rabid fans for “hurting the team,” and had their lives made a living hell by the vengeful coaches. As a U of M grad, I thought it was an excellent story showing how a once high-class football program is being dragged down into the dirt by a new low-class coaching regime.

So that part’s OK. But suppose … not just in this story, but say a similar story at any paper … that the coach could come up with practice time logs showing he had done nothing wrong, or that the players had some sort of ulterior motive for complaining that wasn’t reported, or the reporter had misunderstood something … the shield law would unfairly protect the slacker reporter and punish the innocent coach.

NYT GETS MCCAIN. In what can only be termed a disgrace and abuse of confidential sources, the New York Times in February 2008 came out with a widely heralded story hinting that the married Sen. John McCain embarked on a romantic affair back in 1999 with lobbyist Vicki Iseman, 31 years younger.

Iseman responded by filing a $27 million libel lawsuit. It was subsequently settled out of court, and the Times … not saying whether it had paid her anything … crowed that it had won a big victory for freedom of the press.

But if the case had been pursued … the paper did not flatly come out and say the two had an affair. There was no straight factual substantiation whatsoever. Indeed, the paper printed denials by both parties … and then rattled on as if the denials didn’t matter, using innuendoes from anonymous sources. It is telling that the Times, in its flimsy response to the suit, said it had been reporting on the “perception” of questionable activity by McCain … i.e., not on any activity itself but the “perception” of it.

Ms. Iseman claimed the story led to “a corresponding deterioration of her interior mental, emotional and physical health.” If she had doctor bills to prove it or any other specific evidence of damage, and the Times couldn’t or wouldn’t produce the sources to justify the story, her lawyers would have had a field day.
Since the Times’ own ombudsman, Clark Hoyt, seemed dismayed by the nonexistent reporting … noting in his column that “although it raised one of the most toxic subjects in politics — sex — it offered readers no proof that McCain and (the woman) had a romance” … Iseman’s lawyers would have enjoyed asking him on the stand to tell the jury why it was justified for the sources to be shielded, and see what he was forced to say.

IT WAS ONLY A MURDER. The Alton, Ill., Telegraph got into a hot spot in 2008 when it received a subpoena from a grand jury demanding to know the identities of five anonymous responders on its website concerning a murder investigation. The state’s attorney believed two of the bloggers could help solve the murder case because from their comments, they seemed to know something about who did it.

The Telegraph, without uttering even a shred of sympathy for the murder victim’s family, or at least any sympathy that was visible in a standard Google search, said the bloggers were “sources” akin to someone making a telephone tip in the old days, and that such sources were protected by the state’s shield law, so sorry, we won’t help you. The paper may have neglected to use the phrase “chilling effect” in its brief; maybe in Alton, they don’t know it’s virtually mandatory that “chilling effect” be posited by the press as a dire warning if anyone dares challenge it legally.

Since then, a judge ruled the paper had to identify the two relevant bloggers but not the other three.

If a family member or good friend of yours was murdered, and an anonymous source in the media knew who did it, how would you feel if the paper not only didn’t care but also refused to let law enforcement interview this source to bring justice?

That’s power of the press, all right, to possibly keep a murderer from being prosecuted. Too much power for my taste.

P.S. Please, please don’t bother bringing up the supposed plight of the Northwestern University journalism students as a justification for a shield law.

Let’s see now, these are the students who gave a guy money some of which he used to buy cocaine after he obligingly furnished them the murder confession they wanted to hear in their quest to free a convicted defendant of that crime so they could get good grades, only afterward the gentleman inconveniently recanted his confession and the district attorney’s office has started investigating the students’ investigation, which is wrong wrong wrong because while the students can investigate anybody they want, nobody can investigate them because they’re so goshdarn special and if anyone tries, it’s wrong wrong wrong because it will have a chilling effect on reporters throughout the universe.

This isn’t a reason to have a shield law. It’s a reason to fix the one that’s being blasted through with too little discussion, too little attention.

OJR spoke with Dalglish about the heightened concern she sees from both journalists and the public about the culture of secrecy that has pervaded many parts of our government, as well as the status of a proposed federal shield law for journalists and some bloggers and a bill that its advocates say would improve administration of freedom of information regulations.

The beginnings of RCFP’s “secrecy beat”

OJR: Even before attacks of September 11, the Bush administration displayed a rare penchant for secrecy.

Dalglish: Right. [Attorney General Alberto] Gonzales, when he was the White House Counsel, tried to gut the Presidential Records Act [PRA], to essentially make it meaningless. There was the [former Attorney General John] Ashcroft memorandum interpreting the Freedom of Information Act. They were working on that well before 9/11. There was the Cheney energy task force meetings that they tried to put off-limits. They were pre-disposed to secrecy even before 9/11.

[Note: In June, 2007, the House Committee on Government Oversight and Reform issued a report alleging that senior Administration officials might have violated the PRA by using e-mail addresses assigned by the Republican National Committee to conduct official government business.]

OJR: How did journalists react to that predisposition toward secrecy in the very beginning?

Dalglish: Indifferently.

OJR: Indifferently? They didn’t see it as a real problem?

Dalglish: No, they didn’t see it as a real problem. They were caught unawares and they always thought, “Oh, we’re the only ones who care about that. Journalists are the only ones who care about that, so why even bother to report it?”

OJR: After 9/11, at what point did journalists get concerned. Was it the passage of the PATRIOT ACT?

Dalglish: Well the PATRIOT ACT doesn’t have much to do with information policy. And quite honestly, from my perspective, many of the things in the PATRIOT ACT are absolutely fine and absolutely necessary.

There were a number of things that happened after 9/11 that did impact the right of the public to know what was going on, but it wasn’t necessarily the PATRIOT ACT. I can really only think of one major area of concern in the PATRIOT ACT, and that’s section 215, which said that you could try to get tangible business information from any entity, and then, the librarians and the bookstore owners went nuts.

And we found out from the Attorney General that they were convinced that despite the Privacy Protection Act of 1980 that said you could not execute a search warrant on a newsroom, that because 9/11 was so special that the PATRIOT ACT would allow those search warrants to be executed on newsrooms.

OJR: Has anybody tried to do that?

Dalglish: No, not that I’m aware of.

OJR: There was information that had previously been public that suddenly got taken off-line after 9/11.

Dalglish: Yes. And there were rules that were implemented, executive orders that were written, there was laws that Congress did pass. For example, the law that creates the Department of Homeland Security exempted DHS from portions of the Freedom of Information Act. [RCFP has a detailed chronology of US government secrecy measures between 9/11 and 2005.

OJR: What motivated the Reporter's Committee for Freedom of the Press to start covering these attempts at secrecy as a distinct beat, with reports such as Homefront Confidential and your blog, Behind the Homefront?

Dalglish: The absolute certainty that the public wasn't going to learn nearly as much information as they used to, and that this administration was intent on placing valuable information off-limits.

Growing public support for open government

OJR: Where are we now in the effort to balance the legitimate need for secrecy with the public's right to know?

Dalglish: I think we're starting to bounce back a little bit. I think Congress has finally woken up. I think the media have finally woken up. I think the public is kind of waking up. They're asking very serious questions. I think the [Congressional mid-term] election in November [2006] was partly due to all of this stuff. People are going, “Okay, we gave you enough rope, and you hung yourselves. So know we’re gonna go in another direction.”

And I think the [June, 2007] Washington Post stories about Vice-President Cheney explain the passion for secrecy better than just about anything I’ve seen.

OJR: When you cite the Washington Post stories as a sign that the news media has awakened, are you saying that they haven’t been aggressive enough on these issues in the past?

Dalglish: No, there’s no question the press has not been aggressive enough on these issues. Many reporters have made the mistake of concluding the public doesn’t care about this stuff, and that it was quote-unquote inside baseball. But the public does care about this stuff.

And we’re starting to find out that yes, there is a need to keep some things secret. But when you keep some things secret with impunity, abuses of power occur.

OJR: What evidence do you have that there is widespread concern about this among the public?

Dalglish: I get letters; I get e-mails. Mostly, it’s what doesn’t happen. It used to be when I would go on television or on radio and whine about this, people would call in and say I was an unpatriotic jerk. Now, when I go on these TV shows or on these radio talk shows, people call in saying, “Oh thank God there are people like you! Where have you been?” It’s more of an attitude adjustment, rather than any concrete information I’ve been getting.

I’m not getting as many death threats, let me put it that way.

OJR: You were getting death threats before?

Dalglish: Oh, sure!

Current challenges facing journalists

OJR: How do you feel things stand legally in terms of civil liberties protections for reporters?

Dalglish: They’re chipping away in millions of tiny little ways. They’re trying to close down criminal prosecutions. They’re trying to keep us out of proceedings in Guantanamo. They’re trying to close down access to jurors. They’re trying to prevent us from finding out who it is we’ve kicked out of the country. The foreign nationals that we’ve deported because of some weird, wacky matrix system. They don’t want us to know anything about critical infrastructure, even to the point of ridiculous examples. They won’t even let you know — if somebody’s proposed to build a credit-card processing facility in Texas, and the local folks won’t even tell you what intersection it’s going on, because someone has told them that’s sensitive homeland security information. I mean there’s some really ridiculous things that are happening.

And, people are so worked up, and so frightened, that they’ve kind of let common sense fly out the window.

OJR: I recall that a few months after 9/11, I was teaching a computer-assisted reporting class, and we tried to get information on whether ground water had been contaminated around a particular plant. We couldn’t get the information, whereas it had been fairly easy to find that kind of thing out online before.

Dalglish: Yes, they took it down. They took a lot of that kind of information down, because, you know, a terrorist might use that to poison people! Well the same information a terrorist could use to do damage, citizens who live in that area might appreciate knowing so they can tell their children not to drink the ground water. It’s a total double-edged sword, and they’ve got to be so over-protective, that they’re not using common sense. How can you insist that the EPA clean up your ground water if you’re not allowed to know that it’s contaminated? It gets to be infuriating.

Legislative update

OJR: Reporter’s Committee for Freedom of the Press devotes a lot of its resources to keeping track of shield laws, sunshine laws and the like. How do we stand with regard to that?

Dalglish: The [proposed Federal] shield law might move in the House fairly quickly. We’re having problems with some members of Congress who are concerned that journalists are going to protect leaked national security information. So that’s kind of a sticking point.

The Open Government Act, sponsored by [Patrick] Leahy (D-VT) and [John] Cornyn (R-TX) in the Senate, and by [Henry] Waxman (D-CA) and some others in the House, should be a no-brainer, but [Jon] Kyl (R-AZ) has put a hold on that, and he’s single-handedly blocking it.

OJR: The “secrecy Senator.”

Dalglish: Yes, the secrecy Senator.

OJR: Can you talk just a bit about the Open Government Act, which is designed to strengthen the Freedom of Information Act?

Dalglish: It doesn’t do anything, as far I’m concerned, that’s all that controversial or remarkable. It put things back the way they used to be as far as shifting in reimbursing people who have to sue the government. It doesn’t create any new information that’s off-limits. It creates some new tracking procedures, and puts some teeth into the enforcement of the act, and hopefully will make it work better, make it more user-friendly.

I don’t think there’s anything in the world that should hold this thing up. But they are so pre-occupied by immigration right now, that I don’t think anybody’s in the mood to tangle with Kyl right now. [This interview was conducted on June 26, 2007; the controversial immigration reform bill was defeated on June 28.]

What journalists and the public should do to protect the public right to know

OJR: What should journalists be doing right now with regard to Freedom of Information issues?

Dalglish: I think what journalists should be doing, quite frankly, is reading our website every single day. They should be paying attention to the sunshine in government initiative. They should be paying attention to Open the Government.org. They should be paying attention to the Coalition of Journalists for Open Government. And they should be getting active in these FOI-related journalism groups.

Just stay informed, and I personally don’t think that it is a conflict for journalists to take a political position on something that has to do with the need for government to inform its citizens. Now, if you’re covering a committee in Congress that’s considering amendments to the Freedom of Information Act, should you be up there testifying in favor of the Act? No. But, what you should be doing is supporting the non-profit organizations that are trying to speak up on your behalf, to ensure your ability to do your job.

OJR: Are we doing an adequate job of making the public aware of these issues at this point?

Dalglish: We’re doing better. The American Society of Newspaper Editors has been working very hard the last two or three years on Sunshine Week. It started with newspapers, it spread to online and its spread to broadcasting. In March, right around James Madison’s birthday, we try to convey information to the public about why it’s important to support open government. Why it’s important on both the state and the federal level, and I think that’s been a remarkably successful project.

OJR: You’ve been in your job at RCFP for seven years now. In 2010, when July 4 approaches, what do you hope you will see?

Dalglish: I hope to see that the Freedom of Information Act has been amended; I hope to see that we have a reporters’ privilege – a shield law. And I hope to see that various news organizations and the non-profits are up there pro-actively seeking things from Congress rather than acting defensively.

The courts have not yet answered that question. And bloggers and other online journalists are unlikely to be covered by the language currently in most state shield laws, which protect journalists from having to reveal their confidential sources and their reporting notes.

But several groups are arguing that bloggers and other online news sites should be covered by shield laws. Annalee Newitz, a policy analyst at the Electronic Frontier Foundation, a group that often aids in the legal battle for online rights, argues that online journalists often use confidential sources in the process of gathering information. Newitz believes the ability to ensure confidentiality is necessary to maintain the integrity of the independent media. After all, it was bloggers who reported on Sen. Trent Lott’s birthday wishes to Strom Thurmond and the “60 Minutes Wednesday” “Memogate” controversy — among many other stories — before most of the mainstream media got there.

“We want to allow for the idea that there are different kinds of journalism,” said Newitz, who notes that EFF regularly hears from bloggers who are facing various court orders. “The courts are just beginning to look at this issue.”

In order to determine whether bloggers and other online journalists not connected to traditional media companies are covered by shield laws, the courts may need to decide whether someone is a “journalist.” So, while some in the blogging community do not care what they’re called — or they don’t want to be labeled at all — it may make a difference if bloggers want to claim reporters’ shield protection.

On the (state) books

State shield laws were initially written to cover newspapers, beginning with the first shield law in Maryland in 1896 that barred reporters from being subpoenaed to reveal their confidential sources. Several states adopted shield laws in the ensuing years, including ten states during the Nixon era, when the administration began subpoenaing reporters. Some of these laws have been updated to include radio and television journalists.

Thirty-one states and the District of Columbia have shield laws, with varying definitions of who is a journalist. Some states define a journalist based on employment with a recognized news organization. For example, Delaware’s shield law covers “any journalist, scholar or educator who works 20 hours a week for a mass media outlet.” It is unlikely that an independent online journalist would be covered under a law like Delaware’s. But in Nevada, the shield law covers “former reporters,” which could include former journalists who create their own news-based blog.

Other state shield laws focus on the media form in which the journalist’s work is published. For example, in some states, magazines and books are not granted privilege by state shield laws. This past summer, a federal appeals court ruled that Alabama’s shield law did not protect a Sports Illustrated reporter from having to identify a confidential source.

There are a few states with more open-ended laws that could potentially include online publications. In North Carolina the reporter can disseminate information “via any news medium.” And in Michigan the law covers anyone involved in gathering information for broadcast or publication.

In the courts

The federal constitutional basis for journalistic protection was addressed by the Supreme Court in its 1972 decision in Branzburg v. Hayes. The ruling denied journalists any privilege to refuse to testify about confidential sources in a grand jury context, but the court recognized that “news gathering is not without First Amendment protections.”

Branzburg was the last word from the Supreme Court on a First Amendment basis for the journalist’s privilege. But many lower court decisions have also addressed the issue — and there is a wide variety of opinions. Typically, there is a three-part test used by courts to determine when a journalist is required to disclose confidential or unpublished information. If the information sought is highly material and relevant to the case at hand, and a compelling need exists for the information, and the information cannot be obtained by other means — then the journalist must reveal his or her source.

The most visible court case regarding bloggers and shield law came before the courts in spring 2005 in California. In this case, Apple Computer subpoenaed e-mail records from three sites that published confidential product information in an effort to find who leaked the information — presumably Apple employees. On behalf of the sites, EFF argued that the bloggers should be protected by First Amendment protections as well as California’s shield law.

In the decision, Santa Clara County Superior Court Judge James P. Kleinberg did not address the application of the state shield law to bloggers, ruling instead that neither a traditional journalist nor a blogger had the right to publish information that was essentially “stolen property.” The case is currently under appeal.

Many think the Apple case will force the question of whether bloggers are journalists under shield law. The test often used by the courts in determining shield coverage is whether there was an intent to disseminate information at the beginning of the newsgathering process. In other words, was the blogger acting as a journalist when she or he began collecting information?

“It’s a functional test: Is what you are doing journalism?” said Lauren Gelman, Associate Director of Stanford Law School’s Center for Internet and Society.

Federal statutory protection?

The inclusion of all journalists, regardless of the medium, under a federal shield law is encouraged by the Reporters Committee for the Freedom of the Press.

At a July Senate hearing, lawmakers asked media lawyers and journalists about a proposed federal shield law. Sen. John Cornyn, R-Texas, raised the specific issue of the medium used. Cornyn said he recognized that there is a changing definition of reporting and he asked, “Would you extend this privilege to a blogger?”

New York Times columnist William Safire testified in response, “I don’t think journalism should profess to be a profession. I think the lonely pamphleteer has the same rights as The New York Times.”

The hearing was part of a growing discussion over the creation of a federal shield law. The first proposed federal shield law was introduced in 1929 and several others have been proposed over the years. The two current versions of federal shield law were fueled in large part by the jailing of New York Times reporter Judith Miller when she refused to reveal her confidential source to federal prosecutor Pat Fitzgerald. Part of the discussion over the federal shield law is who should be covered by the legislation.

Both the Senate and the House are preparing to take up the similar bipartisan bills, which have been labeled the Free Flow of Information Act of 2005. This legislation would prevent government officials from forcing a reporter to reveal a source unless the source’s identity was “necessary to prevent imminent and actual harm to national security.” The language covers those who publish books, magazines, newspapers and periodicals in both “print or electronic form,” as well as their broadcast and wire-service formats.

According to Stanford’s Gelman, it might be the inclusion of the term “periodical” that could include a blog or other online publication. The popular definition of periodical is “happening or recurring at regular intervals.” So, if the blog is “published” on a regular basis, it could potentially be covered by the shield law.

Furthermore, a separate bill, sponsored by Sen. Chris Dodd, D-Conn., includes language that could potentially protect bloggers and other online independent journalists. According to the wording of the bill, a Web-only news site would be covered.

Specifically, the bill defines a journalist as a person who “engages in the gathering of news or information” and who also “has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.” News media is defined as “any printed, photographic, mechanical, or electronic means of disseminating news or information to the public.”

In the meantime

Washington attorney Laura Handman, who handles subpoena issues for journalists, says there is no reason bloggers should be denied the same rights as traditional journalists — if their intention is to operate as journalists. To meet that standard, Handman recommends that bloggers ask story subjects for comment, verify information, identify on-the-record sources and strive for objectivity. In other words, exercising some kind of editorial control can increase the chances of being considered a journalist under a shield law.

“We believe that shield laws should apply to anyone gathering information and reporting to the public regardless of the medium,” said EFF’s Newitz. “If you are gathering that information for your blog, you should qualify and you should be protected.”

Regardless of their reporting methods and editorial practices, bloggers need to know the status and language of current state and potential federal shield laws. That knowledge can mean the difference between maintaining confidentiality and being forced to testify or go to jail.

Learn more about your rights

Electronic Frontier Foundation
“Legal Guide for Bloggers”
www.eff.org

The Reporters Committee for Freedom of the Press
“The Reporter’s Privilege”
www.rcfp.org

The First Amendment Center
overview of shield laws
www.firstamendmentcenter.org