Congressional Bill Aims To Protect Journalists From Government Surveillance

Senator Ron Wyden (D-Ore.) speaks during a Senate Finance Committee hearing in the Dirksen Senate Office Building on Capitol Hill, on Oct. 19, 2021. Mandel Ngan/Pool via Reuters

American journalists may soon have protection from Congress against attempts by the federal government to seize their private data.

A bipartisan coalition in the House and Senate reintroduced the PRESS Act (Protect Reporters from Exploitive State Spying) on June 21 to limit the government’s ability to compel reporters to disclose data that might reveal the identities or endanger their sources.

The Senate bill, which is backed by Senators Ron Wyden (D-Ore.), Mike Lee (R-Utah), and Richard Durbin (D-Ill.), will extend disclosure exemptions and standards to protect emails, phone records, and other info from third parties.

The proposed legislation will shield “journalists against unnecessary government surveillance that makes it harder to hold the government accountable and harms reporters’ First Amendment rights,” said a press statement from Wyden’s office.

Reps. Kevin Kiley (R-Calif.) and Jamie Raskin (D-Md.) will introduce equivalent legislation in the House.

The previous attempt to pass the bill succeeded unanimously in the House during the last Congress.

Democrats and Republicans Call for Protection of Journalists’ Rights

The senators introduced the act after pointing to incidents where law enforcement agencies in both Democratic and Republican administrations had secretly subpoenaed emails and phone records from reporters in order to determine their sources.

If passed, reporters will be protected from being compelled by the government to disclose their confidential sources or research files and to protect their data held by third parties like phone and internet companies from being secretly seized without the opportunity to challenge those demands in court.

The PRESS Act would require that federal authorities give reporters a chance to respond to data requests from law enforcement, but the courts will still have the right to demand disclosure if it is necessary to identify terrorists and prevent threats of imminent violence or harm.

Wyden said that the bill is vital to protecting First Amendment press freedoms and that anonymous sources help keep the government accountable.

“Spying on reporters to learn the identity of their sources is a finger in the eye of the First Amendment. Unnecessary surveillance of journalists makes it harder to bring waste, fraud and abuse to light by scaring off sources and reporters who are essential to a well-functioning democracy,” Wyden said.

“Our bipartisan legislation creates strong protections for reporters, with common sense exceptions for cases when the government truly needs information immediately.”

The congressman from Oregon added that harassment of the press by authorities could deter reporters and sources worried about retaliation.

“The First Amendment’s guarantee of a free press is fundamental to holding politicians and others in power accountable,” said Durbin.

“Journalists rely on sources to ensure that the public has the full story.  I’m joining my colleagues in reintroducing the PRESS Act to ensure that journalists have the necessary protections to speak with their sources and do their jobs effectively without undue government interference.”

Lee said that the Act would preserve the public’s “right to access information” so that a representative democracy can function.

“In a world where information is power, the role of reporters as truth-seekers and watchdogs cannot be understated. Recent events, however, have cast a chilling shadow over their pursuits. Law-enforcement agencies have resorted to clandestine tactics, subpoenaing emails and phone records in an effort to unmask confidential sources,” said Lee.

“Not only is this legislation imperative to shield journalists from unnecessary government surveillance, but it is also necessary to protect the public’s right to access information, hold their elected officials accountable, and actively participate in representative government. We must seize this opportunity and ensure that the Fourth Estate remains an indomitable force in its quest for truth.”

No Federal Protection Exists for Reporters’ Privileges

Although 48 states and the District of Columbia have some form of shield law to protect reporters’ privileges, there is no shield law on the federal level.

Protections vary significantly from state to state, and local laws do not apply to investigations by the Department of Justice and other government agencies, which can quietly grab data from telecoms and other data providers with no legal restrictions.

“Our Constitution provides that no law shall abridge the freedom of the press and inspires us to protect journalists against government overreach and abuse of the subpoena power,” said Raskin.

“Our bipartisan PRESS Act vindicates the promise of journalistic freedom. I’m grateful to Rep. Kiley and Sens. Wyden, Lee and Durbin for their partnership on this legislation and their recognition of press freedom as a fundamental democratic imperative.”

The PRESS Act was written to cover that hole and minimize the power of the federal government over the press.

The White House has yet to say whether President Joe Biden would sign it into law, but the bipartisan push in Congress is likely to help.