Bills propose reporter's shield for bloggers

An updated version of the Free Flow of Information Act (PDF), introduced earlier this week, gives a more expansive definition to the concept of a "covered person" under the law than any of Congress' previous attempts at so-called "reporter's shield" legislation.

"The intent is that bloggers who are regularly involved in newsgathering and reporting, within the scope of that definition, would be entitled to the privilege," Rep. Rick Boucher, one of the House bill's primary sponsors, said in a Friday telephone interview with CNET News.com.

While earlier versions based such eligibility on ties to specific media institutions--that is, entities that publish newspapers, books, magazines and periodicals "in print or electronic form," along with their broadcast and wire-service counterparts--the new bill offers protection to anyone engaged in journalism.

The bill defines journalism as "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."

The bill's authors are "not attempting to extend this privilege to everyone in our society," Boucher told CNET News.com. The bill's language, however, does not actually require that a covered person do journalism as an occupation or even on a regular basis. When asked how precise distinctions would be made, Boucher said it will ultimately be up to the courts to interpret and refine the bill's definition.

"I think what we have written in that definition is a good direction to the courts to make those kinds of practical determinations based on the facts in individual cases," the Virginia congressman said.

The proposal reflects an evolving legal debate over the parameters of the category of "journalist." Some courts have already ventured into that territory. A California appeals court ruled last May that an Apple enthusiast blogger accused of product leaks did not have to reveal his sources under a state shield law that covered those connected with newspapers, magazines and other more traditional media.

Most states have some form of reporter's shield law on their books, but there is still no equivalent federal law. Supporters say such laws are necessary to protect would-be whistle-blowers and others who wish to share secrets of vital importance to the general public.

Longtime advocates of a federal shield law for reporters have said one of the biggest challenges in drafting such legislation has been defining who would be covered. Society of Professional Journalists President Christine Tatum said her organization was comfortable with the approach taken by the bill because it focuses less on who is a journalist and more on whether a person was engaged in "an act of journalism."

But there's also a risk that the bill could unwittingly sanction irresponsible behaviors by people claiming to be journalists, whether bloggers or otherwise, she said.

"People should not misunderstand what this shield is about," Tatum said. "It would behoove a lot of people to understand some very basic things about accuracy and fairness in newsgathering."

Although her organization would like to see as many people "under the umbrella of journalism" as possible, she said, "if everybody's a journalist, nobody's a journalist."

Bob Cox, president of the Media Bloggers Association, said his group also supports the definition in the bill because it reflects a more sensible way of defining journalists: based on one's function, not one's ties to a particular media entity. But he also conceded that abuses could crop up.

"You could have somebody who's just trying to get off the hook for something, (and) says, 'I'm gathering news,'" he said in a telephone interview. "But that's why you have judges, and I think they could look at this and make a determination as to whether the person is performing these functions and has a serious intent in what they're doing."

Although the bill would generally require that federal authorities exhaust all "reasonable" alternative sources before compelling a journalist to provide information, the privilege is far from absolute. The bill lays out a number of situations in which people covered by the shield would be forced to give up their sources, including situations in which it's clear that crimes have been committed, national security is at stake, or trade secrets are compromised in violation of existing laws.

The trade secret exception could prove dangerous, particularly for bloggers without fat wallets to foot legal expenses, said Bruce Johnson, a partner with the law firm Davis Wright Tremaine.

"Virtually everything that is not known by the public yet could become a trade secret," said Johnson, who helped to draft a Washington state reporter's shield law last year. "It's simply handing a road map to the business or governmental entity that wants to keep something secret."