WikiLeaks and Journalism: The Schumer-Graham “Compromise”

They are at it again, those eager policy makers keen to define what journalism actually is. To be a journalist, or not to be one, may well be the difference between punishment or protection under the latest discussions by members of the U.S. Senate. The Senate Judiciary Committee was busy last week coming to a few conclusions on the subject. Some of these remain troubling.

There was a certain urgency in the air after it was revealed that the Justice Department had secretly subpoenaed some two months’ worth of telephone records spanning 21 phone lines involving editors and reporters of The Associated Press. A search warrant was also secretly used to obtain emails of a Fox News journalist (The Times and Democrat, Sep 15).

Two pertinent issues are at stake here. One is what a journalist, and requisite journalism, actually is. Such definitions have proven problematic, traditionally defined in such a way that excludes publishers such as WikiLeaks. That, law makers seem to claim, would be one immunity too far. Once the definition of journalist is satisfied, the argument then centres on how far the immunity extends to protect a journalist from disclosing sources.

The Schumer-Graham media shield bill states that those covered would be persons with the “primary intent to investigate events and procure material in order to disseminate to the public news or information.”

The Free Flow of Information Act 2013, as the new shield bill has formally been called, would provide shield protection for journalists from having to reveal sources against a subpoena. It is a resurrection, in part, of the Free Flow of Information bill of 2009, an instrument that found itself stranded in Congressional waters soon after WikiLeaks unleashed Cablegate.

Any definition suggests exclusions. Furthermore, the glaring feature of the latest debate in the Senate Judiciary Committee is the assumption that Congress should even define what journalism is. So, while we have Senator Charles Schumer’s diligent efforts to increase the scope of the definition to include bloggers (how revolutionary), thorny issues remain.

For Schumer, “You have to do two things. You first have to realise that the world has changed, and not everything occurs in print from people who work seven days a week in journalism.” Not that he is about to throw the baby out with its accompanying conservative bathwater. “But on the other hand, you can’t just say anybody who writes one single thing gets the same kind of protection.”

California Senator Diane Feinstein, never a friend of the journalistic creed, preferred to define “real reporters” as those earning a salary, independent contractors or “agent of an entity that disseminates news or information”. In hearings, Feinstein is on record as suggesting that a 17-year-old high school dropout with a blog could hardly qualify for protection. Senator Dick Durbin (D-Ill.) has also been of a similar view, while Senator Jeff Sessions (R-AL) entertained the absurd in his claim that journalists revealing classified information could not be covered.

Whether information is privileged also depends on the medium disclosing the information, namely, that it be a “newspaper, nonfiction book, wire service, news agency, news website, mobile application or other news or information service (whether distributed digitally or otherwise); news program, magazine or other periodical, whether in print, electronic or other format; or through television or radio broadcast; or motion picture for public showing.” Again, the tendrils of conservatism are such that a publishing agency like WikiLeaks might fall outside its ambit, unless it is classed as a “news website”.

The compromise between the Durbin-Feinstein grouping and Schumer, passed on Thursday by 13-5 in the Senate Judiciary Committee, seems like unnecessary babble in the context of restriction. An individual who has had an employer relationship for one of the past 20 years or three continuous months in the five years would be protected (Huffington Post, Sep 12). As the editorial of The Times and Democrat claims, “It would apply to student journalists or someone with a considerable amount of freelance work in the last five years.”

Judicial discretion is, however, granted in cases where an individual might not, on face value, fall within that protection.

As with anything that stems from state representatives, national security exceptions apply. Confidential information in a journalist’s possession that might cause “significant and articulable harm to national security” would still have to surrender such material. Given how incalculably vague national security interests are, let alone “articulable”, we are still in that old muddle of whether a true flow of information will be possible. It all falls to the reasonableness of judicial opinion and the sanity of the state, both questionable propositions.

What now happens to the bill as it veers to the Senate for full consideration remains an open question. While there can be little doubt that aspects of government will be opened by the measure – the need for court approval to seek journalists’ records being the main feature there – the compromise remains weak for focusing on the status of the journalist rather than the actions of journalism. Congress is incapable of letting that one go. Besides, the Senators will continue to be concerned by that organisation that continues to send tremors through the national security establishment.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne and ran with Julian Assange for the WikiLeaks Party in Victoria.

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