The notion that society benefits when journalists are able to promise confidentiality to news sources isn't a radical idea. The vast majority of states provide some protection for reporters from having to identify sources who request anonymity, and long-standing Justice Department regulations require government lawyers to try to obtain information from other sources before issuing subpoenas to journalists or seeking to acquire their telephone records.
Yet attempts to write such protections into federal law have repeatedly foundered, most recently because of a concern in
The bill's centerpiece is robust judicial review of attempts by the federal government to force journalists to disclose the identity of anonymous sources or documents they promised to keep confidential. A judge could approve a subpoena if the information being sought was essential to the resolution of a criminal or civil case and the government had exhausted other possible sources for the information. But in doing so, the judge would have to weigh the public interest in compelling disclosure against the public interest in "gathering and disseminating the information or news at issue and maintaining the free flow of information." That balancing act shouldn't be left to the prosecution.
Some critics claim that the Senate bill protects only the mainstream media. That's an exaggeration. The committee adopted an amendment by Sen.
Feinstein also persuaded the committee to make it clear that the bill's protections wouldn't extend to any "person or entity whose principal function … is to publish primary source documents that have been disclosed to such person or entity without authorization." This is directed at organizations such as WikiLeaks, which posted hundreds of thousands of documents purloined by Army Pfc.
Finally, some critics complain that the bill offers less protection to journalists when it comes to information the government claims is necessary to prevent or mitigate acts of terrorism or other actions that jeopardize national security. The term "national security" is notoriously elastic, but we're resigned to this provision because it was inevitable that Congress would insist on it. At least the decision on whether the national security exception was applicable would be made by a judge, not by the government on its own.