Most states have shield laws which protect journalists who want to keep their sources, notes, or recordings confidential -- but those laws don't help when the feds come knocking. A proposed bill currently before Congress would also protect reporters from federal requests to hand over their sources. This could even help people who gather and publish community news.

Shield laws protect the right of news reporters to refuse to testify about their information and/or sources of information obtained during the news gathering and dissemination process. Currently 48 states (as well as many cities) have shield laws on the books, whether by statute or case law. But the terms of these laws, and who they protect, varies widely. And generally, existing shield laws don't reflect the current landscape of technology, media and players involved in journalistic activities.

A coalition of more than 70 news organizations has been advocating for a federal shield law. Senate Bill S.987, the "Free Flow of Information Act of 2013," would protect not only people who work full-time as professional reporters for established print or broadcast news organizations, but also people who, say, operate independent or nonprofit community news websites. Or perhaps even citizen journalists or community organizers who post information they gather to personal blogs or social media that are available to the public.

Jeffrey Kosseff, an attorney representing the coalition, explained that this bill would apply only to cases that end up in federal court. It would not override state or local shield laws -- those would still apply to cases brought in state or local court. But even so, a federal shield law could still help people involved in gathering and disseminating community-level news and information, in cases where they previously had no protection at all.

It's important to note that the majority of subpoenas to journalists are issued by state and local courts, not federal courts, according to the Reporters Committee for Freedom of the Press. Also, some journalists who cover national security issues are skeptical of its likely practical efficacy. 

"There are civil cases where journalists get subpoenaed in federal court, even for state or local issues," said Kosseff. "Say, for instance, that you're covering a local employment discrimination lawsuit for an independent community site like Arlington Now, where I live. As a reporter, you may receive a subpoena asking to reveal sources for that coverage, even though you are not a party to the lawsuit. Employment law is a federal statue, so such cases would likely be brought in federal court. Or, if local journalists witness illegal drug dealing while reporting, they might be subpoenaed by federal prosecutors. If this federal shield law passes, it could apply to any case where the request for sources or information comes from federal prosecutors or agencies."

However, what's innovative about this bill -- and different from all existing shield laws -- is that it's especially broad in terms of the people and media covered. Kosseff explained that the bill is deliberately worded to be "future proofed," and thus avoid the effectively outdated nature of many existing state and local shield laws. This bill could serve as an example for the updating of other shield laws -- perhaps one of its most important potential effects. 

The proposed federal shield law would protect anyone engaged in the "gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing" of news or information "concerning local, national, or international events or other matters of public interest," and "with the primary intent to investigate events and procure material in order to disseminate [that information] to the public."

This goes far beyond most existing shield laws, which typically only cover employees or contractors for established print or broadcast news outlets.

As long as the terms for activities and intent are met, the federal bill specifies three broad categories of news gatherers and publishers that could be protected:

1. Employees, contractors, and volunteers working for news outlets -- whether for legacy media outlets or newer digital operations or projects, including independent and nonprofit community startups.
2. People with journalism experience or training, such as current or former professional reporters who are working on independent projects not affiliated with any news outlet. This could include work on books and documentaries as well as websites, newsletters, etc. This category also covers student journalists.
3. Judicial discretion. A federal judge can decide that, if it's in the interest of justice, someone who does not fall neatly into either of the first two categories -- but who is performing acts of journalism (whether or not they self-identify as a journalist) -- should be protected by the federal shield law. For instance, this could offer federal shield law protection to engaged community memebers who investigate local issues and publish the information on a public online discussion forum, or on a podcast, or via public postings to YouTube, Reddit, Twitter or Tumblr. (Facebook might not qualify, since it's mostly a members-only "walled garden.")

How to track this bill and get involved. So far S.987 has passed the Senate Judiciary Committee, and it's waiting to go to the full Senate for a vote. Meanwhile, the House version of this bill (H.1962 has not yet been marked up or had hearings scheduled.

People and organizations can support this bill by contacting their Senators and Representatives and urging them to bring it to the Senate floor, or move it further along within the House Judiciary Committee. (If your House representative sits on that committee, your request might be especially effective.)

Community and other news/info sites or projects that wish to get involved with the coalition of news and journalism organizations advocating for this bill (which includes the Society of Professional Journalists), should e-mail Jeffrey Kosseff.