{"id":24486,"date":"2022-12-19T11:42:22","date_gmt":"2022-12-19T19:42:22","guid":{"rendered":"https:\/\/occupysf.net\/?p=24486"},"modified":"2022-12-19T11:42:24","modified_gmt":"2022-12-19T19:42:24","slug":"journalism-source-protection-bill-gets-a-last-minute-senate-push","status":"publish","type":"post","link":"https:\/\/occupysf.net\/index.php\/2022\/12\/19\/journalism-source-protection-bill-gets-a-last-minute-senate-push\/","title":{"rendered":"JOURNALISM SOURCE PROTECTION BILL GETS A LAST-MINUTE SENATE PUSH"},"content":{"rendered":"\n\n\n

<\/a>BECOME A MEMBER<\/strong><\/a><\/p>\n\n\n\n

Reporters are reflected in the sunglasses of President Joe Biden as he speaks to the press at the White House in Washington, D.C., on Oct. 6, 2022.\u00a0Photo: Drew Angerer\/Getty Images<\/em><\/p>\n\n\n\n

A sweeping bill blocking prosecutors from targeting journalists for their sources or seizing their data already passed the House and is within striking distance in the Senate.<\/h2>\n\n\n\n\n\n

Ryan Grim<\/a><\/p>\n\n\n\n

December 15 2022, 6:32\u00a0p.m. (TheIntercept.com)<\/p>\n\n\n\n

IN SEPTEMBER, the House of Representatives quietly passed a piece of legislation unanimously that stands up for the right of a free press against intrusions by the federal government.<\/p>\n\n\n\n

That legislation, the Protect Reporters from Exploitative State Spying Act, or PRESS Act, stands a real chance of becoming law if the Senate takes it up before the expiration of the lame-duck session. The No. 2 Senate Democrat, Dick Durbin of Illinois, who chairs the Senate Judiciary Committee, has said he supports the bill, which gives it a boost in its quest for a floor vote.<\/p>\n\n\n\n

The PRESS Act is sponsored by Maryland Democratic Rep. Jamie Raskin, and it effectively blocks the federal government from using subpoenas, jail, or the threat of jail to force reporters to turn over sources, and it blocks tech companies from sharing sensitive information from journalists\u2019 devices with the federal government.<\/p>\n\n\n\n

This week, Durbin announced in the Chicago Sun-Times that he would be pushing for a vote by unanimous consent on the bill. \u201cAt a time when the former president is calling for journalists to be jailed and referring to the press as the \u2018enemy of the people,\u2019 it\u2019s critical that we protect this pillar of our democracy,\u201d he wrote<\/a>. \u201cThat\u2019s why I support the PRESS Act and have cleared it for fast-track consideration on the Senate \u2018hotline.\u2019\u201d<\/p>\n\n\n\n

On Wednesday, Sen. Ron Wyden, D-Ore., who co-sponsored the bill with Sen. Mike Lee, R-Utah, tried to move the bill through the Senate by unanimous consent, like had been done in the House, but it was blocked by Sen. Tom Cotton, R-Ark. \u201cThe press unfortunately has a long and sordid history of publishing sensitive information from inside the government that damages our national security,\u201d Cotton said on the Senate floor, going on to cite the Pentagon Papers, revealed by Daniel Ellsberg, as an example of such a leak, which he claimed was published by the New York Times in order to turn the public against the war effort. He also criticized reporting on the wars in Afghanistan and Iraq, which he claimed similarly undermined those war efforts. \u201cYet the PRESS Act would immunize journalists and leakers alike from scrutiny and consequences for their actions.\u201d<\/p>\n\n\n\n

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The act would not, in fact, immunize leakers. The government would still be able to hunt and prosecute them as they do now; they just wouldn\u2019t be able to threaten to jail journalists to pressure them to turn in their sources, as they did to The Intercept\u2019s James Risen<\/a>. And the laws that criminalize whistleblowing, including the Espionage Act, are themselves constitutionally suspect at best.<\/p>\n\n\n\n

\u201cTo say, in other words, unequivocally, that it is a crime [to leak classified information] confronts very strong arguments by constitutional lawyers,\u201d Ellsberg said on the Deconstructed podcast<\/a> last year, noting that the Supreme Court has never weighed in on the Espionage Act. \u201cOne is that as an abridgment of free speech and against the First Amendment, that using the Espionage Act against any release of classified information amongst the criminalization of all sources, regardless of the intent, the motive, the impact \u2014 and thus, too much of an abridgment, it can\u2019t be allowed of the First Amendment. And I think that\u2019s very solid.\u201d He added that federal agencies under the First Amendment are free to enforce administrative penalties like termination or suspension of a security clearance, but not criminal penalties.<\/p>\n\n\n\n

As for consequences for journalists, the First Amendment already bars the government from restricting the publication of any material, including classified information. The government can criminalize leaking but not publishing. That 200-year-old First Amendment protection is currently under threat<\/a> by the prosecution<\/a> of WikiLeaks co-founder Julian Assange for publishing national security secrets, though the PRESS Act itself would not cover the case, because the government uncovered his source, Chelsea Manning, without relying on Assange.<\/p>\n\n\n\n

\u201cThis effectively would grant journalists special legal privileges to disclose sensitive information that no other citizen enjoys,\u201d Cotton falsely claimed. Indeed, all citizens have the right to publish classified information; the crime, again, is in the leaking of it.<\/p>\n\n\n\n

Cotton added that he had a particular grievance with the Fourth Estate itself. \u201cIf recent history has taught us anything, it\u2019s that too many journalists these days are little more than left-wing activists who are at best ambivalent about America and are cavalier about our security and about the truth,\u201d Cotton said, ironically attacking under the guise of patriotism those working under the First Amendment.<\/p>\n\n\n\n

\u201cThe PRESS Act does not say, \u2018Let\u2019s have a fast-track for the liberals,\u2019\u201d Wyden told The Intercept.<\/p>\n\n\n\n

The bill does not restrict protections to professional journalists but to any \u201cperson who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.\u201d<\/p>\n\n\n\n

Given Cotton\u2019s objection, the remaining viable path for the bill is to get included in the year-end omnibus spending legislation, according to congressional sources and those working on the outside to push the bill through. A floor vote, given the need to overcome a filibuster, would eat up too much of the little floor time left in the session. Durbin\u2019s support is crucial for such an inclusion, and the bill would also likely need the backing of Sen. Chuck Grassley, R-Iowa, who told The Intercept he was still reviewing requests for the omnibus. Wyden said that he didn\u2019t want to get into individual conversations with other senators but expressed optimism about the potential for the omnibus.<\/p>\n\n\n\n

\u201cAfter the PRESS Act passed the House with unanimous bipartisan support this fall, it came closer than ever to becoming law,\u201d said Raskin. \u201cA federal law to protect journalists in their work against the political whims of the day is a necessary step to defend press freedom. I am hopeful this measure can be included in a year-end omnibus package. It would be a great unifying statement.\u201d<\/p>\n\n\n\n

A spokesperson for Senate Majority Leader Chuck Schumer, D-N.Y., wasn\u2019t immediately able to comment on the status of the talks, and Senate Minority Leader Mitch McConnell, R-Ky., declined to do so. \u201cI don\u2019t have anything to say about it right now,\u201d McConnell said Thursday afternoon.<\/p>\n\n\n\n

A SECOND PROBLEM that has stalled previous press shield bills like this one is fearmongering about a terrorist with a ticking bomb somewhere, along with vague claims like Cotton\u2019s that reporting on Iraq and Afghanistan empowered terrorists. The ticking-bomb situation has likely never occurred in the real world, but Raskin\u2019s bill writes an exception directly into the law for that fantastical scenario.<\/p>\n\n\n\n

The bill makes an exception if \u201cdisclosure of the protected information is necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States; or disclosure of the protected information is necessary to prevent a threat of imminent violence, significant bodily harm, or death.\u201d<\/p>\n\n\n\n

The final important question the bill addresses is what information is protected, and it arrives at an impressively sweeping definition. \u201cThe term \u2018protected information\u2019 means any information identifying a source who provided information as part of engaging in journalism, and any records, contents of a communication, documents, or information that a covered journalist obtained or created as part of engaging in journalism.\u201d<\/p>\n\n\n\n

Previous press shield laws have included huge gaping loopholes, written into the law at the behest of the national security establishment, which end up gutting the law. James Risen, back when he was at the New York Times, was in a long-running legal battle with the Bush administration and then the Obama administration in which they repeatedly threatened him with jail time for not revealing sources. He refused, and they eventually backed off, but if this bill were passed into law, prosecutors would not have been able to come after Risen. In Risen\u2019s case, there was no imminent threat claimed by the government, just vaguely worded assertions about national security that shouldn\u2019t be taken seriously coming from a government that lies regularly about such threats.<\/p>\n\n\n\n

None of this is new for Cotton. He rose to right-wing fame writing to the New York Times <\/a>from active duty in Iraq, calling for the jailing of Risen and two of his Times colleagues. \u201cI hope that my colleagues at the Department of Justice match the courage of my soldiers here and prosecute you and your newspaper to the fullest extent of the law. By the time we return home, maybe you will be in your rightful place: not at the Pulitzer announcements, but behind bars,\u201d Cotton wrote.<\/p>\n\n\n\n

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Wyden rejected Cotton\u2019s argument. \u201cYou can\u2019t get 435 members of Congress to vote for something if the intelligence community is saying it\u2019s going to tie their hands,\u201d Wyden said, pointing to the bill\u2019s exceptions, and noting that he may be the longest-serving member of the Senate Intelligence Committee in American history.<\/p>\n\n\n\n

https:\/\/o.prod.theintercept.com\/checkout\/template\/cacheableShow?aid=hsZyoAWmIE&templateId=OTEXERHVRCE9&templateVariantId=OTVEIU52VT7IF&offerId=fakeOfferId&experienceId=EX3LBE28N473&iframeId=offer_d95877cf7d9b23ea09ec-0&displayMode=inline&pianoIdUrl=https%3A%2F%2Fid.tinypass.com%2Fid%2F&widget=template&url=https%3A%2F%2Ftheintercept.com<\/p>\n\n\n\n

The bill would have also protected Risen from government prosecutors looking to go straight to tech companies for his data. Before a tech company could turn anything over under the new law, they\u2019d have to let the journalist know about the subpoena and give them a chance to respond in court, unless doing so would undermine an ongoing investigation, in which case the government can get a delay of no more than 90 days.<\/p>\n\n\n\n

The bill also narrows what can be requested by subpoena down to information needed to confirm that what was reported is true. In other words, if a journalist exposes a crime with his or her reporting, that\u2019s often not enough for a prosecutor to use against the perpetrator, because a news article is technically hearsay. This bill limits what can be obtained \u201cto the purpose of verifying published information,\u201d which would block fishing expeditions from prosecutors trying to find out the identity of every person a journalist spoke to over a specific period of time.<\/p>\n\n\n\n

A coalition of advocates of press freedom is urging the Senate<\/a> to move the bill before the term expires. Wyden said he plans to stay in Washington the next few days to work on the upcoming tax package and will be focused on the PRESS Act as well. \u201cWe\u2019re going to pull out all the stops to get this in,\u201d he said.<\/p>\n\n\n\n

Update: December 16, 2022
<\/strong>This article has been updated to include a quote by Daniel Ellsberg.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

BECOME A MEMBER Reporters are reflected in the sunglasses of President Joe Biden as he speaks to the press at the White House in Washington, D.C., on Oct. 6, 2022.\u00a0Photo: Drew Angerer\/Getty Images A sweeping bill blocking prosecutors from targeting journalists for their sources or seizing their data already passed… Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/24486"}],"collection":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/comments?post=24486"}],"version-history":[{"count":1,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/24486\/revisions"}],"predecessor-version":[{"id":24487,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/24486\/revisions\/24487"}],"wp:attachment":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/media?parent=24486"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/categories?post=24486"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/tags?post=24486"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}