More robust shield laws are required to protect watchdog reporting.

By Emily Garcia

In 2021, AG Merrick Garland announced that the Department of Justice will no longer seize journalists’ records — however, there is still a need to codify his promise into a law for succeeding administrations.

In previous administrations, press freedom advocates witnessed flippant degradations of the fourth estate’s independence. Under the Obama administration, the Justice Department seized all records for 20 Associated Press telephone lines and switchboards for two months in 2012. The Trump administration went on a subpoena spree, serving subpoenas to three major news organizations in summer of 2021.

Given the bipartisan nature of federal subpoenas on journalists, there is no reason to believe future administrations will behave any differently.

Since 2005, Congress has regularly introduced the Free Flow of Information Act, with no success. The law, commonly referred to as a “shield law,” would protect journalists from arbitrary compelled disclosures in federal investigations. In 2021, Senator Ron Wyden introduced the “Protect Reporters from Excessive State Suppression Act” or PRESS Act. The bill never even left committee.

Opponents of this legislation may argue that press freedom is less important than successful criminal investigations or preserving national security. However, subpoenas on journalists threaten their credibility with confidential sources and whistleblowers, both crucial to accountability reporting.

Congress must pass a law that will narrow the circumstances under which the U.S. Attorney General (AG) may authorize subpoenas on journalists.

The current guidelines for the AG’s authorization of subpoenas on journalists are not sufficiently narrow or burdensome on federal prosecutors to safeguard the press from arbitrary compelled disclosures.

If not for whistleblowers or confidential sources, many important stories would remain unknown to the public, including the Pentagon Papers and Watergate tapes. Under the guise of national security interests, prosecuting whistleblowers and subpoenaing journalists is an attempt to discourage citizens from speaking truth to power. If the subpoenaing of journalists were a rare practice, this dampening effect on the willingness of confidential sources to contact journalists with information may be an overblown concern; unfortunately, it is not.

The U.S. Press Freedom Tracker, an archive of press freedom violations, reported that since 2017, at least 124 journalists were subpoenaed for records related to their reporting, and it is only getting more frequent. The Reporters Committee for the Freedom of the Press noted that 2020 was the third consecutive year of increases in subpoenas on journalists.

Under the current regulations, federal prosecutors are not required to demonstrate to a court that the journalist possesses information relevant to a probable violation of law or that there is a compelling national interest in the disclosure of information that overrides press freedom interests. The code provides a set of principles that the AG should follow prior to the authorization of a subpoena, although these principles are not compulsory.

The principles state that subpoenas should only be used when the information sought is considered essential to a successful investigation, attempts have been made to obtain the information from alternative sources, negotiations with the journalist have been pursued, and appropriate notice has been provided.

49 states have some form of a shield law in place as protection for journalists who are subpoenaed. Subpoenas in state investigations are not uncommon. In January, a North Dakota judge signed off on a search warrant for a reporter’s phone records in a police investigation. Currently, reporters in North Dakota are not protected by a shield law.

Maryland’s shield law is generally touted as one of the best in the country, including protections for student journalists in addition to professional journalists. Maryland’s law employs a similar test as the Code of Federal Regulations, but burdens parties seeking information from journalists with providing clear and convincing evidence to a court. While these laws provide robust protection to journalists within the walls of the state courthouse, they do not protect against federal overreach.

Therefore, a federal law modeled after Maryland’s standards is necessary to sufficiently protect journalists from unwarranted subpoenas.

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