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From the Spring 2004 issue of The News Media & The Law, page 36.
The Reporters Committee each spring surveys legislation that could affect the First Amendment and Freedom of Information interests of the news media. The following bills are among those introduced in this 108th Congress that could inhibit, or in some cases enhance, journalists' abilities to gather and cover the news.
PATRIOT Act and FISA Legislation
Several bills designed to curb the powers granted under the USA PATRIOT Act and the Foreign Intelligence Surveillance Act were introduced. A bipartisan effort to protect civil liberties was forged on Oct. 2, 2003, when Sen. Larry Craig (R-Idaho) and others introduced the Safety and Freedom Ensured (SAFE) Act, to limit roving wiretaps under the PATRIOT Act, curtail delayed notification of searches, and increase privacy protection for library users and others. (S. 1709)
At the same time, Sen. Patrick Leahy (D-Vt.) introduced a bill to expand the PATRIOT Act's sunset provisions. The Patriot Oversight Restoration Act of 2003 would add more powers to cease at the end of a five-year period. "It will allow Congress to reexamine some of the important legal issues that abruptly confronted us in the weeks following September 11, and to reassess our efforts with the benefit of hindsight and the luxury of time," Leahy said.
Provisions proposed for sunset include Section 213, which authorizes so-called "sneak and peak" (delayed notification) search warrants; Sections 216 and 222, which significantly expand when, where and how law enforcement can obtain pen registers (tracking to whom outgoing telephone calls are made) and a trap and trace order (tracking the phone number of an incoming call); Section 219, which authorizes judges to sign search warrants for properties located outside their districts, Section 802, which defines "domestic terrorism" in a way that could be read to include political protesters engaged in civil disobedience; and Section 806, which uses the aforementioned definition of "domestic terrorism" to expand the government's civil forfeiture authority.
Meanwhile, the Bush administration has waged an aggressive campaign to preserve and promote the PATRIOT Act. On Jan. 29, Attorney General John Ashcroft sent a letter to members of the Senate urging them not to revoke law enforcement surveillance powers granted by the USA PATRIOT Act, specifically mentioning the "SAFE" Act. Last fall, Ashcroft toured dozens of U.S. cities to promote the PATRIOT Act. (S. 1695)
In his January 2004 State of the Union address, and again in an address to Homeland Security Department employees, President Bush called for Congress to renew major parts of the PATRIOT Act set to expire next year.
Last June, several House Democrats introduced the Surveillance Oversight and Disclosure Act to amend the Foreign Intelligence Surveillance Act (FISA). It would require the attorney general to issue an annual public report that included the number of people in the U.S. targeted for electronic surveillance, physical searches, pen registers and requests for access to records. (H.R. 2429)
In November 2001, President Bush signed a military order authorizing the establishment of military tribunals to try suspected terrorists. Although no tribunals have yet taken place, the Defense Department has issued eight Military Commission Instructions establishing the procedures for the tribunals, and has designated some suspects as candidates for trial.
The tribunal proceedings are required to be open to the news media under Military Commission Order No. 1, issued in March 2002. But proceedings may be closed by the presiding officer or the appointing authority if closure is necessary to prevent the release of classified information or to protect the physical safety of participants. The Pentagon has said that there will be space for 84 journalists to cover the proceedings.
Against this backdrop, Congress has largely deferred to the president. Only two bills regarding military tribunals have been introduced in the 108th Congress, and neither appears likely to pass.
The Military Tribunals Act, introduced by Rep. Adam Schiff (D-Calif.) in March 2003, authorizes the president to establish military tribunals for the trial of suspected terrorists who are not citizens or residents of the United States. Unlike the Bush administration's directives, the act establishes judicial review of tribunal decisions, expresses the sense of Congress that the president should seek input from U.S. allies, and requires the president to submit annual reports concerning tribunal activity.
The act also requires proceedings to be accessible to the public unless closure is demonstrably necessary to secure the physical safety of participants. Evidence may be kept secret under the act only if its release would cause "identifiable harm" to American military objectives or intelligence sources and methods, or if there is a "substantial risk" that it could be used to plan future terrorist attacks. The bill was referred to the Judiciary and Armed Services Committees, where no substantive action ha s been taken. (H.R. 1290)
The Military Tribunal Regulations Review Act, proposed by Rep. Joseph Hoeffel (D-Pa.), was reintroduced after failing to be enacted in the 107th Congress. Once again it appears to have little chance of passing, as no action other than committee referral has taken place. It would require the president to submit copies of military tribunal rules to Congress, which could disapprove them by joint resolution. It also directs the president to submit periodic reports to Congress on the activities of every military tribunal. The reports are to be submitted in unclassified form, though they may include a classified annex. (H.R. 2428)
Rep. Rush Holt (D-N.J.) introduced a resolution of inquiry that, if passed, would require the president to turn over to Congress within 14 days documents in his possession relating to the disclosure of the identity of Valerie Plame as a CIA operative. The resolution concerns the ongoing investigation into the source of a leak that resulted in the publication of Plame's identity by columnist Robert Novak, raising questions about confidential sources and reporter's privilege. Although co-sponsored by 74 other members, Holt's resolution was reported adversely by all four committees to which it was referred: Intelligence, International Relations, Judiciary and Armed Services. On Feb. 27, it was placed on the House calendar. (H.R. 499)
The Health Care Practitioner Protection Act, introduced by Rep. Berry (D-Ark.) in May 2003, would require a finding of criminal intent for criminal penalties to be levied against someone under the Social Security Act for disclosing individually identifiable health information. (H.R. 2003)
In an effort to provide individuals with greater control over the collection and use of their personal information, Rep. Rodney Frelinghuysen (R-N.J.) introduced the Online Privacy Protection Act in January 2003. The act would require regulations by the Federal Trade Commission to penalize the release of individuals' personal information collected on the Internet. On the same day, he introduced the Social Security Online Privacy Protection Act, to similarly penalize the release of Social Security account numbers and other personally identifiable information. (H.R. 69, H.R. 70)
In another measure concerning individual privacy, Sen. Diane Feinstein (D-Calif.) introduced the Privacy Act of 2003 early last year. It would require individual consent prior to the sale and marketing of personally identifiable information. (S. 745)
Freedom of Information
Critical Infrastructure Information
Sen. Patrick Leahy's (D-Vt.) bill last year to change the critical infrastructure information sections of the Homeland Security Act is probably the most significant bill affecting Freedom of Information in this Congress, but it has gone nowhere. It would limit the protections of critical infrastructure information shared with government by companies that identify their vulnerabilities in an effort to protect weaknesses from exploitation by terrorists. (S. 609)
Sen. Jon Corzine (D-N.J.) early last year introduced the Chemical Security Act, a carry-over from the 107th Congress. It would require federal, state and local authorities to identify "chemical sources and substances of concern" that could pose a threat if released into the environment, and create "prevention, preparedness and response" plans for such a release. A provision of the bill exempts these threat assessments from the Freedom of Information Act, but provides for a public certification that they have been done. There has been no action on the bill. (S. 157)
Sunshine in Iraq
Rep. Ron Wyden (D-Ore.) introduced a measure last year to open up information about the noncompetitive bidding for contract work in Iraq. Similar measures have since been introduced by Rep. Carolyn Maloney (D- N.Y.). (S. 876) (H.R. 2767, H.R. 3275)
Gun Seller Information
Two appropriations measures in this Congress eliminate funds for response to FOI requests for gun data. Last year, Rep. George Nethercutt's (R-Wash.) amendment derailed an FOI Act case for the records before the U.S. Supreme Court. (Public L. No. 108-7) This year, a successful appropriations bill amendment by Rep. Todd Tiahrt (R-Kan.) carried an even stronger prohibition against disclosure. It also requires that background checks by gun sellers be purged within 24 hours. (Public L. No. 108-199) (See story on page 28)
In an attempt last May to restore the access denied under the 2003 resolution, Rep. Chris Van Hollen (D-Md.) introduced the People's Right to Know Act. But after it was referred to committee, there has been no further action. (H.R. 2275)
Exempt from the FOI Act
An exemption to the FOI Act provides that information made confidential by other statutes may be withheld from requesters. Among the pending bills that would require secrecy are those prohibiting disclosure of details of Native American cultural practices (H.R. 2419); livestock identities in a proposed national database to prevent livestock disease outbreaks (H.R. 3787, H.R. 4005); and reports on cargo thefts between federal and state law enforcement agencies. (H.R. 3563)
Two measures call for public access to the reports prepared for members of Congress by the Congressional Research Service. Sen. John McCain (R-Ariz.) would have CRS put the reports on the Internet. (S. 54) Rep. Christopher Shays (R-Conn.) introduced later legislation to accomplish the same thing. (H.R. 3630)
Federal Advisory Committee Act
The Homeland Security Act of 2002 called for new Department of Homeland Security advisory committees to be exempt from the openness requirements of the Federal Advisory Committee Act. At the start of the 108th Congress last year, Sen. Joseph Lieberman (D-Conn.) and Sen. Tom Daschle (D-S.D.) tried to amend the act by deleting the FACA exemption, but the measure went nowhere. (S. 41)
Sen. Robert Byrd (D-W.Va.) tried unsuccessfully to tackle the closed meetings problem through the Department of Homeland Security Appropriations Act of 2004. His amendment would have denied funding to any DHS advisory committees not subject to FACA. (H.R. 2555)
FACA requires open meetings and records, but Congress frequently tries to create advisory boards in legislation that removes them from those openness requirements.
Bills in the 108th Congress would remove openness requirements from new committees to create a memorial for victims of terrorist attacks (H.R. 911); award grants for maintenance of presidential sites (S. 1748, H.R. 3903); facilitate a 2009 national observance of the anniversary of European explorers (S. 1311, H.R. 2528); assess the healthcare needs of the uninsured (S. 732, S. 1, H. 1); and assess management by the federal government of trusts held for Native Americans. (S. 1459, H.R. 2981, S. 175, S. 16)
Other advisory committee bills allowing closure concern plans for the Great Lakes (H.R. 2720); healthcare information technology (H.R. 663); humane care of marine mammals (H.R. 3316); health security standards (H.R. 1200); data collection for home health services (H.R. 26); peer review panels for water resources (H.R. 2557); healthcare needs of American Indians (H.R. 2440); and environmental concerns under the National Defense Authorization Act. (H.R. 1588)
Sen. Daniel Akaka (D-Hawaii) introduced the Federal Employee Protection of Disclosures Act last June, and hearings were held on the measure in November. (S. 1358) Rep. Todd Platts (R-Penn.) introduced the House version of the Akaka bill, the Whistleblower Protection Enhancement Act, in October.
The bills would expand the protections of the Whistleblower Protection Act for federal employees. Whistleblowers lost a lot of protection following the 1999 ruling in LaChance v. White, which required a whistleblower to have "irrefragable proof" (meaning proof impossible to refute) of a violation to receive protection, and the 1998 ruling in Willis v. Dept. of Agriculture, which said the act does not protect whistleblowers who make disclosures as part of their job duties. (H.R. 3281)
Rep. Christopher Shays (R-Conn.) introduced a measure to protect an employee's disclosure of violations of the law or gross mismanagement if the disclosure is not prohibited by law or required by Executive Order or House rules to be kept secret for national security reasons. (H.R. 3963)
Campaign Finance Reform
The Clean Money, Clean Elections Act, introduced by Rep. John Tierney (D-Mass.) in November, provides for qualifying candidates for the House of Representatives to be designated "Clean Money Candidates" eligible for free and reduced-price television and radio broadcast time. Broadcasters who fail to comply with the bill would have their licenses revoked. The bill was simultaneously referred to three committees. (H.R. 3641)
In an effort to "discourage alcohol use among underage students," Rep. Tom Osborne (R-Neb.), former University of Nebraska head football coach, introduced a bill in late March to require the National Collegiate Athletic Association to remove alcohol advertisements from its sports broadcasts. Osborne cited a 2003 survey by the Global Strategy Group, which found that 71 percent of adults polled supported a ban on all alcohol advertisements on televised college games. (H.R. 575)
Rep. Robert Andrews (D-N.J.) introduced an amendment to the Electronic Fund Transfer Act in February 2003, prohibiting any automated teller machine that displays paid advertising from imposing a user's fee on customers. The Access to Money (ATM) Act exempts direct advertising by the ATM's operator and public service announcements. (H.R. 774)
Access to Places
Rep. Charles Rangel (D-N.Y.) addressed "the cloak of secrecy that currently surrounds America's fallen heroes" and prevents the nation "from recognizing the sacrifices made in the war" in a resolution to prohibit all restrictions against the public and press' presence at the arrival of caskets. The measure addresses the Bush administration's reinstitution in November of a 1991 ban on photographing caskets at all U.S. military bases. The ban prohibits anyone, including the families of those killed, from being present when bodies of soldiers who died in combat are brought back to the United States. The Rangel resolution, introduced in March, calls for assurance that family requests for privacy will be respected. (H.R. 384)
Once again, the House has introduced a bill to amend the U.S. Constitution to allow Congress to prohibit the desecration of the U.S. flag. The bill was introduced by Rep. Cliff Stearns (R-Fla.) on Feb. 13, 2003. It has been referred to the Subcommittee on the Constitution. (H.R. 51)
Rep. Fred Upton (R-Mich.) proposed the Broadcast Decency Enforcement Act in January to increase the maximum penalty for broadcast indecency from $27,500 to $500,000. It passed the House overwhelmingly in mid-March. The bill would have broadcasters with three or more violations called before the Federal Communications Commission for a hearing on possible license revocation. (H.R. 3717)
The Senate's version of the bill, introduced by Sen. Sam Brownback (R-Kan.), increases the maximum fine to $275,500 for the first violation, $375,000 for the second, and $500,000 for the third. (S. 2056)
The Senate measure could potentially include an amendment moving "violent" television programming to a late-night "safe harbor," a measure sponsored by Sen. Fritz Hollings (D-S.C.). A part of the Senate's consideration of that measure could depend on the results of an ongoing FCC study gauging the effectiveness of content-blocking technology such as V-chips. (S. 161) Rep. Joe Baca (R-Calif.) sponsored a similar House measure. (H.R. 3914) (See story on page 12)
The Clean Airwaves Act proposed by Rep. Doug Ose (R-Calif.) would unconditionally ban eight words and phrases from the airwaves. (H.R. 3687)
Rep. Phil Gingrey (R-Ga.) and Rep. Charles Pickering (R-Miss.) introduced resolutions to condemn the FCC Enforcement Division's decision in October not to fine U2 singer Bono for his utterance of the phrase "fucking brilliant" during the 2003 Golden Globes awards show, televised on CBS. (H.R. 482, H.R. 500)
Sen. Zell Miller (D-Ga.) proposed another measure to increase fines for broadcasters who violate the indecency rule. (S. 2147)
Rep. Maurice Hinchey (D-N.Y.) sponsored a measure to require the FCC to enforce a new "Fairness Doctrine," requiring broadcasters to meet their public interest obligations by covering "publicly important issues" with reasonable opportunity for the "discussion of conflicting views on issues of public importance." The bill specifically refers to the rules and policies of the FCC in effect on Jan. 1, 1987, before the commission abolished enforcement of the doctrine. (H.R. 4069)
Bills to allow camera coverage of federal courts were introduced last year by Sens. Charles Grassley (R-Iowa) and Charles Schumer (D-N.Y.) (S. 554), and by Rep. Steve Chabot (R-Ohio).
Access to Court Records
Sen. Herb Kohl (D-Wis.) introduced the Sunshine in Litigation Act of 2003, which would restrict the use of protective orders and sealed records in federal civil actions. Specifically, the measure bars a court from entering an order restricting the disclosure of information obtained through discovery, approving a settlement that restricts such disclosure, or restricting access to court records unless the court makes findings that the order (1) would not restrict the disclosure of information relevant to public healthy or safety, or (2) the public interest in disclosure is outweighed by a specific and substantial interest in maintaining confidentiality, and the order is no broader than necessary. In April 2003, the bill was referred to the Senate Judiciary Committee, which has not acted on it. (S. 817)
Congress is currently debating versions of a database protection bill. The Consumer Access Information Act, proposed by Rep. Cliff Stearns (R-Fla.), would prevent "piracy" of information in commercial databases used for sale by others. (H.R. 3872) Rep. Howard Coble (R-N.C.) has introduced a more punitive measure allowing for civil lawsuits and damages for commercial use of proprietary databases.