Anyone regularly engaged in "journalism," which would seem to include some bloggers, wouldn't generally be forced to divulge confidential sources in federal cases under a bill approved Thursday by a U.S. Senate committee.
By a 15-2 vote, the U.S. Senate Judiciary Committee backed an amended version of the so-called Free Flow of Information Act. Sens. Sam Brownback (R-Kansas) and Jon Kyl (R-Ariz.) cast the "no" votes.
Some form of "reporter's privilege," either through laws or court decisions, already exists in 49 states and the District of Columbia. This bill would extend that protection to federal cases, shielding anyone engaged in the practice of "journalism"--with a number of exceptions, naturally--from being forced to give up confidential information or provide testimony.
The term "journalism" clearly would sweep up at least some bloggers because the bill defines it thusly: "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."
That broad definition still gives some politicians heartburn. At Thursday's meeting, three members of the Senate committee--Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.) and John Cornyn (R-Texas)--said they worried about giving protection to bloggers who aren't generally expected to adhere to the same code of conduct and ethics as professional journalists, according to a Senate aide familiar with the debate. But they didn't propose any different language at the time, opting instead to work with the bill's primary sponsors to craft tweaks before the bill hits the Senate floor.
Although it's unclear how the final language will shake out, it could end up resembling the approach taken by a House of Representatives panel when it backed a similar bill in August. That bill's authors said they planned to add a condition restricting the reporter's privilege only to those who derive "financial gain or livelihood" from the practice of journalism. (Granted, it's relatively easy and inexpensive to slap advertisements on blogs and qualify for the privilege, so some politicians weren't impressed by that amendment.)
Enactment of either bill into law is hardly assured. Lingering opposition from the Bush administration means a new round of conflict likely looms if the measure advances to the Senate floor. The Justice Department has argued that the language is far too broad and could endanger national security and criminal investigations. A Thursday Washington Post op-ed by U.S. attorney Patrick Fitzgerald claims the bill would unwittingly protect Iraqi spies posing as journalists and child pornographers who swapped information via the Internet. (Fitzgerald did, however, seem to indicate that some "newspapers and bloggers" would deserve the safeguards.)
One amendment to the Senate bill approved Thursday would exclude known terrorists or agents of foreign powers from the category of journalist in an attempt to address the DOJ's concerns. But beyond that, there weren't any attempts to narrow the scope of who would be protected.
And, of course, neither bill is without a lengthy list of exceptions to the privileges, which many major news organizations have deemed an appropriate balance. The Senate version would permit forced disclosure of information in cases where there's reason to believe a crime has occurred; where the information sought is "essential" to the investigation, defense or prosecution; or where unauthorized revelations of information have caused--or will cause--"significant and articulable harm to the national security." If the information is necessary in cases involving kidnapping, death, "substantial bodily harm" or terrorism against the United States, among other things, it would also be fair game.