California expands journalist shield law, requires third-party subpoena notification

In response to the recent controversy about The Associated Press phone records subpoena, California Gov. Jerry Brown signed a bill that would expand the existing shield law for the state's journalists.

Under the new law, which takes into effect Jan.1, officials are required to notify journalists at least five days before they subpoena third-party providers, such as telephone companies or cloud-based servers, for their records. The bill gives journalists the opportunity to challenge the subpoena in court or at least request the scope be narrowed.

“California journalists, and the public, should be extremely troubled by recent reports showing the federal government secretly collected the phone records of the Associated Press,” said state Sen. Ted Lieu, D-Torrance, in a previous statement about the bill. “It’s essential for a free citizenry to have a free, unhindered press.”

The existing shield law requires that a journalist being subpoenaed in a civil or criminal proceeding be given five days notice by the person requesting the information. The new law expands that requirement so that journalists will be notified, not only when they are subpoenaed for their notes or testimony, but when third-party providers are subpoenaed to hand over journalists' records.

The new law requires the party issuing the subpoena to include in the notice, at a minimum, an explanation of why the requested records will be of material assistance to the case. The notice must also include why other sources of the information were not sufficient.

In May, The Associated Press announced that the Justice Department collected records for 20 phone lines used by editors and reporters, most of whom were involved in a report about a CIA-thwarted terrorist plot in Yemen that contradicted previous statements by the Obama Administration denying such an attempt. Investigators did not notify the wire service about the subpoena and only notified the AP’s attorneys after the records were collected.

Days after the Association Press story broke, it also came to light that the Justice Department said that there was "probable cause" to consider Fox News reporter James Rosen a “co-conspirator” with State Department employee Stephen Kim, who is accused of leaking secrets to Rosen. That designation allowed the department to be free from the limits on search warrants to the news media found in the Privacy Protection Act, and allowed them to search his Gmail account.

Attorney General Eric Holder issued a report to President Obama this summer regarding Justice Department guidelines that strengthened protections for journalists and calls for more direct oversight by the Attorney General himself when investigations of leakers involve journalists’ constitutionally protected work materials.

Jim Ewert, general counsel of the California Newspaper Publishers Association, explained that the language in the bill closely mirrors the guidelines recently adopted by the Justice Department, saying that they wanted to make it as consistent as they could.

Related Reporters Committee resources:

· California – Privilege Compendium

· Amending the Department of Justice subpoena guidelines