Perspective: So who should you call a journalist?
By Declan McCullagh
October 24, 2005, 4:00 AM PDT
A renewed effort in the U.S. Congress to create a federal shield law for
news organizations is raising a sticky question: Who is a journalist?
A generation ago, the answer usually was clear. Not anymore. Online
scribes and video publishers are experimenting with novel forms of
journalism, and even the most stodgy news organizations are embracing blogs.
That leaves politicians--hardly the most clued in about all things
tech--in something of a quandary. They're being lobbied by professional
news organizations and the American Bar Association to approve some kind
of journalist's shield law while being urged by prosecutors to leave out
The justification for a shield law is a perfectly reasonable one. After
a federal appeals court enforced grand jury subpoenas against The New
York Times and Time magazine, and the U.S. Supreme Court declined to
take the case, news organizations decided to fix the law.
The Justice Department took a swipe at the leading shield proposal
(H.R.3323/S.1419) during a Senate hearing last week, arguing that it
would let criminals pose as bloggers.
UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF TEXAS
UNITED STATES DEPARTMENT OF JUSTICE
Such an expansive definition of =93covered person=94 could unintentionally
offer a safe haven for criminals. As drafted, the definition invites
criminals to cloak their activities under the guise of a =93covered
person,=94 so as to avoid investigation by the Federal government. The
overbroad definition of a =93covered person=94 could be read to include any
person or corporate entity whose employees or corporate subsidiaries
publish a book, newspaper, or magazine; operate a radio or television
broadcast station; or operate a news or wire service. Additionally, the
definition arguably could include any person who sets up an Internet
=93blog=94 or any other activity to =93disseminate information by print,
broadcast, cable satellite[, etc.],=94 as set forth in the bill.
More generally, the Department does not believe that legislation is
necessary because there is no evidence that the subpoena power is being
abused by the Department in this context. The Department prides itself
on its record of objectivity in reviewing press subpoenas, and any
legislation that would impair the discretion of the Attorney General to
issue press subpoenas =96 or to exercise any other investigative options
in the exercise of the President=92s constitutional powers =96 is
unwarranted. For the last 33 years, the Department of Justice has
authorized subpoenas to the news media only in a small number of cases
involving serious allegations of criminal conduct. Since 1991, 3.7% of
the media subpoena requests processed by the Criminal Division for
Attorney General approval were for confidential source material.
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