Free Flow of Information Act of 2007 - Motion to Proceed
Floor Speech
FREE FLOW OF INFORMATION ACT OF 2007--MOTION TO PROCEED -- (Senate - July 30, 2008)
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Mr. DURBIN. Mr. President, the Free Flow of Information Act is a bipartisan bill that goes a long way towards protecting the freedom of the press and the public's right to information without compromising national security or the work of law enforcement. It strikes the right balance between these competing priorities, and it deserves this body's support. I want to commend Senator Specter and Senator Schumer, the authors of this legislation, which I am proud to cosponsor.
During the last 30 years, many of our most important news stories were revealed to us by reporters who obtained their information from confidential sources. Often, these stories exposed government and corporate waste, fraud and abuse. Let me give you a few examples of what these confidential sources enabled journalists to report to the public: the President's warrantless surveillance program; the unsafe and deteriorating conditions at Walter Reed Army Medical Center; the treatment of Iraqi prisoners at Abu Ghraib; the Enron accounting fraud scandal; the rampant abuse of steroids in major league baseball; and the government's misleading statements to the American people about the Vietnam war, as documented in the Pentagon Papers.
These and other major stories led to important reforms in the government and in industry. If confidential sources had not trusted reporters and come forward with this information, these stories would not have come to light when they did. We are a better and stronger country because of these stories.
Unfortunately, the relationship of trust between reporters and confidential sources has come under attack since September 11.
Increasingly, Federal prosecutors, special prosecutors and civil litigants are issuing subpoenas to reporters for their confidential sources.
In the last 4 years alone, journalists have received at least 35 Federal subpoenas for confidential information. During this period, Federal courts have held 13 journalists in contempt for refusing to disclose their confidential sources.
Since 2000, four journalists--Judith Miller, Jim Taricani, Josh Wolf and Vanessa Leggett--have been imprisoned for 19 months in total for refusing to disclose their confidential sources.
Earlier this year, a Federal judge ordered a reporter to disclose a confidential source and threatened her with fines of $5,000 per day if she did not.
This has created a chilling effect on the flow of information between confidential sources and reporters.
The media shield bill would address this problem by creating a Federal qualified privilege for communications between confidential sources and reporters.
It allows the government and private litigants to compel the disclosure of confidential information only if they persuade a Federal judge that: they have exhausted the alternative sources of that information; the information is essential to their case; and nondisclosure would on balance be contrary to the public interest.
The bill makes it easier for the government to overcome the privilege in criminal cases.
It also creates sensible exceptions that ensure that this qualified privilege does not compromise national security or the work of law enforcement agencies. In particular, the privilege does not apply to: confidential information that relates to criminal conduct by a journalist; confidential information that is necessary to stop or prevent an act of terrorism, death or substantial bodily harm, a kidnapping, or an act that involves child pornography or the sexual exploitation of a child; or confidential information that would harm national security.
The qualified privilege and the exceptions for national security and law enforcement concerns reflect the serious and careful effort by Senators Specter and Schumer to take into account the perspectives of journalists on the one hand and law enforcement on the other. The product is a bill that strikes the right balance.
I am pleased that the managers' amendment includes language that I authored on who should be protected by the privilege. In the fast-changing media world, the notion of who qualifies as a journalist is evolving quickly. Journalists are no longer just the reporters who work for newspapers, magazines or television or radio stations. It is increasingly common for Internet bloggers and citizen-journalists to report breaking news stories that shape our Nation's most important debates. However, not everyone with a laptop and an internet connection should be protected by the important privilege created by this bill.
The privilege will now apply to reporters who are regularly engaged in investigative journalism. It will protect reporters who are in a position to develop and rely on confidential sources for their stories, whether they report in the television, radio, print or online world.
Specifically, it will cover journalists who regularly: report on local, national or international events of public importance; do the things that constitute good investigative journalism, meaning conducting interviews, collecting information and making observations on the scene of an event, or collecting original documents and statements; and collect this information for the purpose of bringing it to the public's attention.
This definition, like the rest of the bill, protects the relationship between reporters and confidential sources, but ensures that Federal agencies are able to get the information they need to prevent harm to national security and advance urgent law enforcement investigations. In short, it strikes the right balance between journalistic integrity and the public's right to seek justice.
Forty-nine States and the District of Columbia give journalists at least a partial shield against compulsory disclosures. This bill fills the gap at the federal level and gives investigative journalists a qualified shield in federal court. I am proud to be a cosponsor of this legislation and urge my colleagues to support it.
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