Virtually all states provide protections, either by statute or by judicial decision, so that journalists are not routinely forced to reveal the identity of confidential sources. In federal courts, however, there is no uniform set of standards to govern when information about confidential sources can be sought from reporters. Broadcast journalists' ability to bring important matters to the American public has been put in jeopardy as numerous reporters have been questioned about their confidential sources or had their records subpoenaed in cases before federal courts. Sweeping subpoenas of phone records and emails of news organizations further highlight the importance of enacting legislation that would set clear standards for protecting confidential sources, including whistleblowers and others with important information.
In 2013, it was discovered that the Department of Justice had subpoenaed a broad range of phone records from the Associated Press, as well as the substance of correspondence involving Fox News reporter James Rosen. In response, NAB and other major media organizations expressed displeasure with how the incident was handled and called for a strong federal reporter shield. Shortly thereafter, the Free Flow of Information Act was introduced in the House and Senate to ensure the ability of journalists to protect confidential sources, also known as the reporter's shield. A large coalition of more than 70 companies and trade associations supported these bills. As a result of those efforts, the Senate bill was reported favorably to the full Senate in September 2013 by the Judiciary Committee. In subsequent years, similar legislation cleared the full House of Representatives by huge bipartisan margins or voice vote.
Federal legislation to protect journalists, and companies that employ journalists, from being forced to reveal the identities of confidential sources except in defined circumstances such as threats to national security, is still widely supported by broadcast, electronic and print media. Compelling the disclosure of confidential sources has a chilling effect on the flow of information to the public, and discourages "whistleblowers" from coming forward with evidence of waste, fraud and abuse in government and the private sector.
The bottom line:
Congress should support efforts to ensure that protections for journalists' sources at the federal level reflect the protections already granted in nearly every state across the country. Reps. Jamie Raskin (MD-8), Ted Lieu (CA-33), and John Yarmuth (KY-3) recently introduced the Protect Reporters from Exploitative State Spying Act (PRESS Act) [H.R. 4330], and Sen. Ron Wyden recently introduced the Protect Reporters from Excessive State Suppression Act (PRESS Act) [S.2457], both of which would maintain the free flow of information to the public by establishing appropriate limits on the federally compelled disclosure of information obtained as part of engaging in journalism, and for other purposes. Legislation such as the PRESS Act protects the confidential relationship between reporters and their sources, promotes reporting important information to the public and accounts for legitimate government interests in law enforcement and security.