Tuesday, October 18, 2005

The Reporter's Shield Law

The Free Flow of Information Act of 2005 has received some criticism recently.

In response to Judith Miller's imprisonment, the FFIA attempts to set limits on when the Federal government can compel journalists to reveal their sources.

The tricky part is determining just who a "journalist" is.

Excluding bloggers from the bill seems silly during this transformative stage in media. In five years, blogs could be a main source of news for many Americans, or they could die out in favor of some other cultural fixation (just as blogs replaced personal homepages, and personal homepages replaced family newsletters, and family newsletters replaced talking to people you care about). Since we don't know how blogs will affect the media, we might want to wait and see before contributing to legislative bloat.

But if anything, I think the bill is too permissive. The bill covers anyone who disseminates information by any electronic means, and who publishes a periodical in print or electronic form. To me, it seems like that would include bloggers, despite Lugar's suggestion to the contrary.

If bloggers are covered, that's when things get really scary.

...[T]he Internet and participatory media have turned everyone into the media. The Fourth Estate used to be pretty well-defined--the guys who owned the broadcast licenses and the big pressses were the "media", period. But now, the definition isn't so clear...
-CIO Insight

So under this bill, if bloggers are covered, anyone can receive protection against revealing sources if they just publish the information on their blog. Since anyone can have a blog, all information becomes protected, even information that shouldn't be.

Which brings us back to the principal case:
Libby was not promoting the "free flow of information" or blowing the whistle on government corruption or evil in high places. Libby was defending the White House against a political attack... it is very hard to see how it would have been the sort of communication that is so important to democratic government that either participant should be excused from testifying before a grand jury about it.

So what information should be protected? How about protecting any 1) widely disseminated information that was 2) necessarily secured through an explicit promise of confidentiality, so long as 3) the information was reasonably believed to be accurate by the source, and 4) that concealing the identity of the source does not impede an investigation into matters more serious than those revealed by the source?

Basically, if you get valuable info, it's only protected if you share it. You have to try to get it without promising confidentiality first. The source can't just be lying. And the source's concealment can't conceal crimes that are more serious than the matters revealed (so a murderer won't be concealed for identifying a jaywalker, someone possibly guilty of treason won't be concealed after revealing fodder for a political attack).