Bloggers Beware

Several drafts of the “Free Flow of Information Act” are currently being debated in Congress.

The most recent version of the bill in the House of Representatives was introduced by Representative Mike Pence [IN-6] on July 18, 2005, and can be found here. The House bill has been referred to the House Committee on the Judiciary, where it currently sits.

In the Senate, the bill has gone through several rewrites. The most recent version was introduced by Senator Richard Lugar [IN] on May 18, 2006. A draft of Senator Lugar’s bill can be found here. Senator Lugar’s floor statement introducing the bill can be found here.  The Senate bill is awaiting action in the Senate Committee on the Judiciary.

On July 20, 2005, the Senate Committee on the Judiciary held a hearing on “Reporters’ Shield Legislation: Issues and Implications.” Matthew Cooper, a reporter for Time magazine testified that “[w]ithout whistle-blowers who feel they can come forward to the reporters with a degree of confidence, we might never have known the extent of the Watergate scandal or Enron’s deceptions or events that needed to be exposed.” The Department of Justice opposed the bill, with Deputy Attorney General James Comey stating in written testimony that “[t]he bill is bad public policy primarily because it would bar the government from obtaining information about media sources — even in the most urgent of circumstances affecting the public’s health or safety or national security.”

Both bills offer a definition of who is covered by the protections. In each, the definition would exclude anyone who is not affiliated with an established news organization. The Congressional Research Service examined both bills, which it termed “identical,” and concluded:

The bill’s requirement as to what an entity must publish or operate to be a covered person would limit the bill’s coverage so that it apparently would not protect bloggers or others who post on the Internet, except those who write for Webzines (unless a blog were considered a magazine). It would apparently also not protect a freelance reporter who gathered information while having no contract with an entity to do so.

For example, the Senate Bill states that the “term `journalist’ means a person who, for financial gain or livelihood, is engaged in gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing news or information as a salaried employee of or independent contractor for a newspaper, news journal, news agency, book publisher, press association, wire service, radio or television station, network, magazine, Internet news service, or other professional medium or agency which has as one of its regular functions the processing and researching of news or information intended for dissemination to the public.”

The House version is similarly constraining. It offers its protection only to

(A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that–

(i) publishes a newspaper, book, magazine, or other periodical in print or electronic form;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity to the extent that such parent, subsidiary, or affiliate is engaged in news gathering or the dissemination of news and information; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.