The Obama administration asked Sen. Chuck Schumer (D-N.Y.) Wednesday morning to reintroduce legislation that would help reporters protect the identity of their sources from federal officials, a White House official told The Huffington Post.There's a catch, however. That previous bill, called the Free Flow of Information Act and introduced by Schumer and Arlen Specter, was originally opposed by the Obama administration over "national security" concerns. A compromise was carved out that would allow current and future administrations to declare that a given leak was an issue of "national security"—and would require judges to accept a prosecutor's say-so that the information being investigated met the criteria for such an exemption. That was a broad enough loophole that it helped kill support for the entire bill. It's apparently that compromise bill that's going to be reintroduced:
Brian Fallon, a spokesman for Mr. Schumer, said the senator would reintroduce the compromise version of the media shield bill in the form that passed the Judiciary Committee.Given that the AP investigation has already been declared to fall into the realm of "national security" concerns, it seems uncertain just how much the bill would have affected the current case. The situation was considered, however:
In a statement, Mr. Schumer referred to the A.P. subpoena: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.”
The 2009 legislation would have created a presumption that when the government is seeking calling records from a telephone carrier, the news organization would be notified ahead of time, allowing it to fight the subpoena in court. But the bill also would have allowed the government to seek a 45-to-90-day delay in notification if a court determined that such notice would threaten the integrity of the investigation.Reintroducing the bill is a good first step. Tweaking it so as to not rely so heavily on prosecutor say-so as to whether any particular leak investigations is too important to follow the normal rules might be another; we've not had very good luck with administrations asking us to trust them on such matters.