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Clearly defining the public good

Thursday, May 30, 2013 - Updated: 3:08 PM

The controversy over the unprecedented intrusion into the phone records of journalists at The Associated Press has sparked new interest in federal legislation that would protect journalists and their confidential sources.

Recognizing the public interest in the free flow of information, most states provide legal protections to reporters and sources. But the federal government has no such statutory protections and increasingly has violated its non-binding rules for self-restraint in the use of legal tools to compel disclosure.

The Department of Justice subpoenaed records from 20 telephone and cellular lines used by what AP says were more than 100 reporters and editors in Washington, New York and Hartford, Conn., during a two-month period. The subpoena was part of an investigation into who provided classified information for an article about a foiled al-Qaida plot.

The bill, which stalled in 2009, would protect journalists from being compelled to testify about their confidential sources unless all other avenues are exhausted and exposure is in the public interest.

As outlined by co-sponsor U.S. Sen. Charles Schumer, D-N.Y., the bill would:

* Protect journalists from having to reveal information, including source identity, that a reporter obtains under a promise of confidentiality while newsgathering.

* Establish a legal framework for determining when protected information can be subject to compelled disclosure in court.

* Require the government to argue to a court its need for the information at issue;

* Require, in most cases, a court to balance the public interest in disclosure against public interest in newsgathering before compelling disclosure.

The bill would also specify situations in which journalists would have no protection against disclosure, including preventing acts of terrorism or identifying those who have committed such acts or otherwise harmed national security, among other exceptions.

Whether this legislation would have protected journalists and sources in the current AP case is not clear, as Schumer concedes.

The Justice Department has said it interviewed more than 550 people and reviewed tens of thousands of documents before seeking the phone records, which presumably means the government could satisfy a requirement that it exhaust other investigatory remedies.

Still, the government should be required to prove to a judge that the potential public good pursued by a criminal investigation outweighs the potential public good that confidential sources bring to journalism.

-- The Kingston Daily Freeman


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