Federal Shield law to be introduced Wednesday
The official name is the Free Flow of Information Act. It will be introduced at 1 p.m. EST Wednesday at a Captiol Press Conference. A press release applauding both Houses of Congress for their efforts are forthcoming. I look forward to the press release after it passes.
Here are some key changes to the bills from Laurie Babinski, SPJ's lawyer with the Baker and Hostleter firm in Washington D.C.:
· A change in the standard of evidence that the federal government must show before it is allowed to compel a covered person to provide testimony or produce documents. The previous standard had allowed the government to compel testimony or document production if a court determined by “clear and convincing evidence” that disclosure was necessary under the test set forth in the bill. The new standard has been reduced to a showing by a “preponderance of the evidence.”
· A change in the standard for how important the information sought must be to the successful completion of the matter in which either testimony or documents are sought. In a compromise with the Chamber of Commerce, the sponsors changed the standard that the information sought must be “critical” to the completion of the matter back to “essential” to fall in line with Department of Justice guidelines.
· Additional protection for trade secrets and personal medical or financial information. In another compromise with the Chamber, the new version of the bill dictates that a court must determine by a preponderance of the evidence that, in the case that the testimony or document sought could reveal the identity of a source, that the disclosure of the source’s identity is necessary to “prevent imminent and actual harm to national security,” where disclosure is necessary to “prevent imminent death or significant bodily harm,” or where the disclosure is necessary to identify a person who has disclosed a trade secret, health information, or nonpublic personal information of any consumer in violation of the law.
· A change in the definition of who is covered by the shield law. Earlier this year, we requested that the sponsors broaden the definition of who is covered under the shield law, and they did so by including the words “and information” at our suggestion. As it stands, a “covered person” is defined as a “person engaged in journalism.” Journalism is defined as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news and information for dissemination to the public.” This addition expanded coverage to several categories of people we were concerned had been left out, including book authors. While the bill does not explicitly afford protection to bloggers and other forms of new media – a compromise we made several years back – to the extent a court determines that they are engaged in “journalism,” we expect they will be shielded.
SPJ supports passage of the Shield law and raised $30,000 in Las Vegas toward the lobbying efforts.