Bill shielding BVD-clad bloggers passes House

HR 2102, a House bill that gives the "reporter's privilege" (the right to keep confidential sources secret) to many BVD-clad bloggers, passed the House by a lopsided 398-21 majority.

The bill, in the form engrossed as agreed to or passed by the House, defines a "covered person" as follows (Section 4 (2) of the bill):

(2) COVERED PERSON -- The term `covered person' means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person. (emphasis added)

So BVD-clad bloggers who post paid advertising on their blogs qualify under the "substantial financial gain" provision. And ScienceBlogs bloggers -- including Fatheaded Ed Brayton, Sleazy PZ Myers, and several other co-bloggers from the infamous Panda's Thumb blog -- also qualify because they receive regular payments from ScienceBlogs (though the payments reportedly are not large -- Larry Moran says, "It's enough to pay for a night at the movies every month" ). BVD-clad bloggers are neither required nor expected to adhere to a code of ethics. BVD-clad bloggers want and are getting privileges & benefits without responsibilities. Not only does this bill give them the "reporter's privilege," but BVD-clad bloggers are being authoritatively cited by court opinions, scholarly journals, the major news media, etc. without being required or expected to follow a code of ethics.

The bill has other flaws. For example, the exceptions to the reporter's privilege include the following provisions (from Section 2(a) of the bill):
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(a) Conditions for Compelled Disclosure- In any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person--

(1) that the party seeking to compel production of such testimony or document has exhausted all reasonable alternative sources (other than the covered person) of the testimony or document;

(2) that--

(A) in a criminal investigation or prosecution, based on information obtained from a person other than the covered person --

(i) there are reasonable grounds to believe that a crime has occurred; and

(ii) the testimony or document sought is critical to the investigation or prosecution or to the defense against the prosecution; or

(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than the covered person, the testimony or document sought is critical to the successful completion of the matter;(emphasis added)

If there is evidence that a crime was committed, why should it matter whether or not that evidence or part of that evidence was "obtained from a person other than the covered person"? What this means is that disclosure cannot be required if the covered person is the sole source of evidence of a crime but can be required if the covered person is not the sole source of evidence of a crime. That distinction is stupid.

As for the exception where "the testimony or document sought is critical to the successful completion of the matter," what does this mean? It can mean anything.

Also, the bill has the following other exceptions:

(3) in the case that the testimony or document sought could reveal the identity of a source of information or include any information that could reasonably be expected to lead to the discovery of the identity of such a source, that--

(A) disclosure of the identity of such a source is necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States or its allies or other significant and specified harm to national security with the objective to prevent such harm;

(B) disclosure of the identity of such a source is necessary to prevent imminent death or significant bodily harm with the objective to prevent such death or harm, respectively;

(C) disclosure of the identity of such a source is necessary to identify a person who has disclosed--

(i) a trade secret, actionable under section 1831 or 1832 of title 18, United States Code;

(ii) individually identifiable health information, as such term is defined in section 1171(6) of the Social Security Act (42 U.S.C. 1320d(6)), actionable under Federal law; or

(iii) nonpublic personal information, as such term is defined in section 509(4) of the Gramm-Leach-Biley Act (15 U.S.C. 6809(4)), of any consumer actionable under Federal law; or

(D)(i) disclosure of the identity of such a source is essential to identify in a criminal investigation or prosecution a person who without authorization disclosed properly classified information and who at the time of such disclosure had authorized access to such information; and

(ii) such unauthorized disclosure has caused or will cause significant and articulable harm to the national security; and

(4) that the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.

The statement "that the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information" is too vague. Also, there are potential conflicts between the above subsections (2), (3), and (4) of Section 2 -- for example, the criminal-evidence condition of subsection (2) above might be satisfied while subsection (3)'s condition, which concerns the protection of the identities of sources, is not satisfied. The bill does not say whether an exception to protection requires satisfaction of the conditions in all of the subsections of Section 2.

Section 3 of the bill says,

SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

(a) Conditions for Compelled Disclosure- With respect to testimony or any document consisting of any record, information, or other communication that relates to a business transaction between a communications service provider and a covered person, section 2 shall apply to such testimony or document if sought from the communications service provider in the same manner that such section applies to any testimony or document sought from a covered person.

The purpose of Section 3 above is not clear, as the business transactions between Internet users and their internet service providers and/or blog services are likely to concern only fee payments and the terms of service.

A USA Today news report that appeared shortly before the full House passed HR 2102 says that Pres. Bush is opposed to the bill. The report says,

The Justice Department argues that the news media have plenty of protection. Federal prosecutors subpoena reporters "very rarely," Carr said. He said the department has sought reporters' confidential sources 19 times since 1991.

That figure does not, however, include subpoenas from special prosecutors and attorneys for private clients. By Dalglish's count, at least 40 reporters have been subpoenaed to turn over confidential information in the past three years, and courts tend to rule against the journalists.

There are two similar bills in the Senate, S 1267 and S 2035. There has been no action on S 1267, which has 11 cosponsors (cosponsors are in addition to the sponsor). S 2035, which has only 4 co-sponsors, was approved by the Judiciary Committee by a vote of 15-2. S 1267, which is listed as the companion bill to HR 2102, is quite similar to HR 2102, whereas S 2035 is quite a bit different, so if the full Senate approves S 2035, there will be quite a few changes that the House-Senate conciliation committee will have to make to come up with a joint bill. Not that it matters, but neither S 1267 nor S 2035 has an income requirement for "journalists." I discussed S 2035 in a previous article.

This issue of the reporter's privilege involves difficult compromises and tradeoffs. For starters, I would grant the reporter's privilege only to professional journalists. In no case would there be any reporter's privilege for Brayton-type BVD-clad bloggers who refuse to follow a journalists' code of ethics. IMO the reporter's privilege should be upheld in the case of a crime that has already been committed but should be denied if necessary to try to prevent a future crime, particularly a future crime involving kidnapping or bodily harm. IMO the reporter's privilege should also be denied where the information might help exonerate a defendant in a criminal trial.
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