The grandiose title of the Senate bill passed last week would seem to belie its limited scope. While achieving a much-needed milestone in the bill, in that bloggers are now considered "covered persons," it seems to do little if anything to protect an essential part of a blogger’s wherewithal, namely, foreign press outlets like the BBC and others.
I don’t know whether Congress is really this naïve or just willfully ignorant to the fact that the American press is corporate-influenced and that those corporations desire to control the essential free flow of information in America. Whatever the case, and that judgment is excluded for purposes of this diary, I believe it’s safe to say that if this bill is signed into law - the majority of stories coming to us from abroad, essential to our understanding the myriad of Bush regime shenanigans - would simply go unreported, along with impartial analysis of how those misdeeds would affect American citizens in general.
The Free Flow of Information Act of 2007 is the title attached to the bill that passed the Senate Judiciary Committee last week with bipartisan support. It is better known as the reporter's shield law. While this particular legislation goes further than any previous attempt at enacting a reporter’s shield law ever has, it’s certainly not a done deal, drawing continued opposition in its current form from the Justice Department and the Office of National Intelligence (DNI) headed by Director Mike McConnell. The definition of a "covered person" in general is also a point of contention.
Monday’s Washington Post has the story:
One of the biggest issues is just who is a journalist, or in the phrase the bill uses, a "covered person." Once that definition is clarified -- and even Judiciary members say it's not settled -- a journalist would under most circumstances not have to disclose to federal authorities or in civil lawsuits the identity of sources that have been promised confidentiality. Also protected will be records, communications, documents or other information that this "covered person" receives from confidential sources, as well as notes the journalist makes of conversations with these sources.
The Senate committee bill employs a broad definition: A "covered person" is someone "engaged in journalism," which itself is defined as "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 would cover those working for major news organizations as well as individuals putting out their own blogs or newsletters.
What the Senate bill also includes, though, is a list of who is not a covered person. Here the committee tried to block anyone associated with terrorism from claiming to be a "covered person," having in mind criticism of the bill made in a Washington Post op-ed last week by U.S. Attorney Patrick J. Fitzgerald, special prosecutor in the Valerie Plame case. Fitzgerald suggested that "charity" groups that raise money for terrorists, Iraqi spies working under journalist cover, or criminal gangs running a radio station all could qualify.
Now, whether bloggers like us who are part of a blog like Dailykos are covered, is still not completely clear to me; as the bill refers to, "individuals putting out their own blogs or newsletters." I’m tentatively assuming that bloggers who are members of internet communities like Dailykos are covered as well, but, perhaps some of our crack legal-eagles here can clear up that aspect of the bill for all us laypersons out there. (or perhaps just me)
But, I digress.
The committee decided that the bill would not cover anyone who is "an agent of a foreign power" as newly defined in recent amendments to the Foreign Intelligence Surveillance Act. Committee staff members said this could include journalists working for the news network al-Jazeera, owned by the government of Qatar; publications run by Hezbollah, the Lebanese political party; and even the BBC or other news organizations owned by governments. The new FISA definitions also include as agents of a foreign power anyone who "is reasonably expected to possess, control, transmit or receive foreign intelligence information while such person is in the United States."
The bill also would not cover anyone who, because of past actions, is excluded from participating in federal grants, aid, or procurement or non-procurement activities.
The bill would not exempt from federal subpoena or civil court subpoena a "covered person" who personally witnessed an alleged crime, nor would it permit the holding back of physical evidence or film, tape or audio recordings of such an alleged criminal event.
There would be protection for a journalist if, as the approved bill reads, the "alleged criminal or tortuous conduct is the act of communicating the documents or information at issue" to the "covered person."
As we all remember, that was the substance of the Valerie Plame case wherein the very act of passing her identity as a covert CIA operative – which was indeed classified information at the time – to a journalist would have been a violation of the law.
As stated in the proposed bill, the government would need to prove, "by the preponderance of the evidence," that disclosure of classified information such as Ms. Plame’s name, "has caused significant and articulable harm to national security, and that "nondisclosure" of the source's identity "would be contrary to the public interest," balancing that against the "public interest in gathering news and maintaining the free flow of information."
Not unexpectedly, this is the provision that has drawn the most opposition from the Justice Department and DNI.
Ostensibly, this bill seems like a "good news, bad news" kind of legislation that offers concessions to all parties involved, but doesn’t go as far as most parties would like it to go.
I’m eager to hear some astute legal analysis from kossacks familiar with the subject.
Meanwhile,
Impede, impeach and imprison.
Peace