Congress Moves To Protect Journalists From Secret Subpoenas – Media, Telecoms, IT, Entertainment

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Congress wants to protect journalists from secret subpoenas

July 13, 2021

Ballard Spahr LLP

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Following revelations of secret subpoenas from the Trump administration over phone and email recordings of journalists, Congress tabled a bill to restrict the government’s powers to investigate the news media.

The PRESS Act– which stands for “Protect Reporters from Exploitative State Spying” in the House version – was introduced in both Houses of Congress and would prevent all federal agencies from forcing the disclosure of confidential sources and materials from journalists obtained during the news gathering . The bills contain narrow exemptions for terrorism investigations or where necessary to prevent impending violence, grievous bodily harm or death.

The bill would also protect journalists’ service providers such as email, telephone and cloud computing companies unless a court determines, on the basis of overwhelming evidence, “that there is a reasonable threat of imminent violence “. The bill also requires that the government provide the journalist with notification and an opportunity to be heard – unless it can provide clear and convincing evidence that “a notification would clearly and materially jeopardize the integrity of a criminal investigation or imminent danger of death or serious harm ”before forcing the testimony or document. Finally, the bill provides that any forced disclosure should be tightly tailored to avoid the production of unrelated facts.

The PRESS Act would not apply to civil defamation claims or prevent the government from investigating any journalist or organization that: is suspected of committing a crime; a witness to a crime unrelated to journalism; suspected of being an agent of a foreign power; or linked to a terrorist organization.

Congress passed the PRESS bill the same week as. in front testimony by Ballard Spahr’s attorney, Lynn Oberlander, prior to the House Justice Committee hearing. Ms. Oberlander, along with other experts, testified about the need for improved legal protection for journalists following the Trump administration’s subpoenas against telephone and computer companies in an investigation into the identity of government whistleblowers.

Previous efforts to get a federal “protection law” for journalists were unsuccessful in 2007 and 2017, despite the House of Representatives passing a bill in 2007. This bill was sponsored by then Republican Congressman Mike Pence. The bipartisan recognition of the problem at the recent House hearing could signal better chances of success with the PRESS bill.

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