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Congress turns a spotlight on access, privilege issues

From the Spring 2005 issue of The News Media & The Law, page 34. The Reporters Committee for Freedom of…

From the Spring 2005 issue of The News Media & The Law, page 34.

The Reporters Committee for Freedom of the Press each spring catalogs many of the federal bills that could affect First Amendment and freedom of information rights. In the 109th Congress, major changes are proposed to improve the Freedom of Information Act and enact a federal shield law. Legislation is proposed to address restrictions on campaign speech enacted in 2002. Perennial moves to curb indecent speech on the airwaves are back &#151 this time with record fines proposed.

Reporters privilege

Although 31 states and the District of Columbia have enacted “shield laws” protecting journalists from attempts by government and civil litigants to reveal confidential sources or provide other information or testimony in courts, there is currently no federal shield law.

The “Free Flow of Information Act,” introduced by Sen. Richard Lugar (R-Ind.) and Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.), would provide an absolute protection against compelled disclosure of a confidential source. The bill would provide a qualified privilege from disclosure of other information from a journalist that could only be overcome by a showing of “clear and convincing evidence” that the information is not reasonably available from another source, is essential to a criminal case where there are reasonable grounds to believe that a crime has occurred, and is essential in a civil case to “a dispositive issue of substantial importance.”

The protections of the bill also would extend to information held by third parties, such as telephone and Internet service providers, that is held pursuant to a business transaction between the third party and a journalist. Both bills enjoy bi-partisan support. The Senate bill has four cosponsors; the House bill has 23. (S.340)(H.R.581)

Sen. Christopher Dodd (D-Conn.), a cosponsor of S.340, reintroduced the “Free Speech Protection Act,” which he had introduced in November in the 108th Congress. It would provide absolute protection from the disclosure of journalists’ sources, whether confidential or not, and a qualified privilege from disclosure of other unpublished information. The qualified privilege could be overcome only by a showing of “clear and convincing evidence” that the information is “critical and necessary to the resolution of a significant legal issue,” that the information is not available by any alternative means, and that there is an “overriding public interest in the disclosure.” The bill is co-sponsored by Sen. Russ Feingold (D-Wis.).(S.369)

An important difference between the two approaches is in who could claim the protections of the shield law. The “Free Flow of Information Act” would cover journalists who are employees or otherwise contracted by the media, including newspapers, books, magazines, other periodicals, broadcast stations, cable systems, satellite carriers, news agencies and wire services. The “Free Speech Protection Act” would apply more broadly to someone who gathers information for a newspaper, magazine, journal or other periodical, radio, television, press association, news agency, wire service, or “any printed, photographic, mechanical, or electronic means of disseminating news or information to the public.”

Freedom of Information Act

Freedom of Information Act requests would be better processed if the “OPEN Government Act” introduced by Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.) and Rep. Lamar Smith (R-Texas) is enacted.(S.394, and H.R. 867) The trio also introduced the “Faster FOIA Act” (S.589, H.R. 1620) to create a 16-member commission to study ways to better respond to FOI requests. Leahy reintroduced the “Restore FOIA Act” to reign in the secrecy provisions of the Homeland Security Act that protect “critical infrastructure information” &#151 records that private entities share with the Department of Homeland Security. (S.622) (See story, page 7)

A 10th exemption would be added to the FOI Act to protect from disclosure autopsy and other photographs of dead people, under a bill introduced by lone sponsor Rep. Rodney Frelinghuysen (R-N.J.) No new exemptions have been added to the FOI Act since 1974, but the Act’s Exemption 3 is sometimes called the “catch-all” exemption since it protects confidentiality required by other laws. Congress has not been shy about creating new Exemption 3 laws. The bill was introduced concurrent with court-ordered disclosure of U.S. military detainee-abuse records to the American Civil Liberties Union. (H.R. 1513)

Information about livestock disease, asbestos and tobacco submitted to government agencies and marked confidential by submitters would be secret under several bills that would change the way the FOI Act’s Exemption 4 &#151 which protects proprietary information &#151 works. Agencies currently determine whether information is proprietary on a case-by-case basis following well-established guidelines set out by judges. The bills would leave the decision to invoke Exemption 4 to the regulated businesses.

Two bills to protect farmers whose cattle may be studied for livestock disease, such as mad cow disease, have been introduced. The bills seek to protect as “commercial” federal identification of livestock while the Department of Agriculture reviews response to the disease, and identifies areas for improvement. (H.R. 1254) (H.R. 1256)

Records submitted to the Department of Labor for asbestos injury claims would be confidential “commercial” information, under a bill that would give the administrator and chairman of the Asbestos Insurers Commission power to designate the records as confidential. (H.R. 1360)

Information collected from tobacco manufacturers under a bill intended to curb tobacco use could not be disclosed and would be exempt as “commercial,” according to another bill. (S. 666)

Sen. Christopher Dodd (D-Conn.) proposes a public registry of clinical drug-safety trials, created and maintained by the Public Health Service. (S. 470) Bills creating a medical innovation prize (H.R. 417) and a board to set nurse staffing standards for patient safety (H.R. 1222) subject the offices they create to the requirements of the FOI Act.

Other secrecy legislation

Reports on cargo thefts would be exempt from the FOI Act, under one bill. (H.R. 785) Another measure calls for a government catalog of foreign food providers but would make that list secret. (S. 729)

The Chemical Facility Security Act under consideration by the House Committee on Homeland Security would exempt from the FOI Act vulnerability assessments and site security plans for facilities that use dangerous chemicals. The bill would prohibit release of the information under state and local law, in discovery or as evidence in court proceedings. Penalties for unauthorized disclosure include imprisonment up to a year and, for federal employees, firing. (H.R. 1562)

A bill giving the Public Health Service new responsibilities for improving patient safety would authorize it to collect information from health care providers while making patient-safety data privileged and confidential &#151 apparently even when individual patients or individual health care providers cannot be identified. (S.544)

Another measure would protect locations of fossils from mandatory disclosure under the FOI Act (S.263).

Companion Senate and House bills would establish a committee to protect Long Island Sound and prohibit committee members from disclosing any information that is otherwise not available to the public. (S. 158) (H.R. 307)

Broadcast

The “Broadcast Decency Enforcement Act,” reintroduced by Rep. Fred Upton (R-Mich.) and proposing to raise to $500,000 the maximum fine for broadcasting indecency on the public airwaves, won easy House passage on a 389-38 vote in February. A similar Senate bill, introduced by Sen. Sam Brownback (R-Kan.), would raise maximum penalties to $325,000. The House bill also calls for license revocation of stations who violate the law multiple times, an annual report by the Federal Communications Commission of indecency complaints and a yearly Government Accountability Office study. Reps. Bernie Sanders (I-Vt.) and Henry Waxman (D-Calif.) spoke and voted against the bill. (H.R. 310)( S. 193)

Sanders, in response to the legislation, introduced the “Stamp Out Censorship Act,” which would prohibit the FCC from penalizing indecent broadcasts by video or cable television systems, satellite carriers, the Internet or non-broadcast providers. (H.R. 1440)

Rep. Jim Moran (D-Va..) introduced the “Families for ED Advertising Decency Act,” which would prohibit broadcast advertising for erectile dysfunction medication. (H.R. 1420)

Sen. John Rockefeller (D-W.Va.) introduced the “Indecent and Gratuitous and Excessively Violent Programming Control Act,” which would raise maximum indecency fines to $500,000 and mandate FCC reassessment of current warnings and parental guidelines for television viewing. The bill also calls for a minimum of six hours of daily programming “specifically designed to serve the educational and informational needs of children.”(S. 616)

Rep. Louise Slaughter (D-N.Y.) introduced the “Fairness and Accountability in Broadcasting Act” that would establish public interest standards for broadcasters in an effort to localize and balance newscasts. Failure to comply with public interest guidelines would result in an investigatory hearing by the FCC. (H.R. 501)

“The Localism in Broadcasting Reform Act,” introduced by Slaughter and Sen. John McCain (R-Ariz.), would shorten the terms of broadcasting licenses from eight to three years. The bill also would mandate that broadcast stations with Web pages provide access to their public interest issues, program lists and children’s programming reports. (H.R.1665) (S. 383)

Government PR

The “Sunshine in Journalism Act of 2005, “sponsored by Rep. Ric Keller (R-Fla.), would require journalists to disclose to the Department of Justice government payments received for promoting government policies. Failure to do so would result in a fine of as much as $5,000 and/or 30 days in jail. (H.R. 649)

The “Stop Government Propaganda Act,” sponsored by Sen. Frank Lautenberg (D-N.J.) would impose civil penalties on government officials who approve funds for publicity or propaganda within the United States. Penalties would be between $5,000 and $10,000, plus three times the amount of the funds appropriated. (S. 266)

Federal Advisory Committee Act

No bills have been introduced in the 109th Congress that would substantively change the Federal Advisory Committee Act of 1972. FACA’s openness requirements for meetings and records frequently reveal research and advice for government agencies that can influence federal policymaking.

About a dozen bills would exempt several newly created advisory committees from FACA requirements, including committees that would study rehabilitation of the Louisiana coastal ecosystem (S. 721); research seriously threatened endangered species (H.R. 93); recommend maintenance and improvement grants to presidential birthplaces, homes, museums and burial sites (H.R. 927; S.431); study government compliance with mercury emission limitations (S. 730); develop and implement Great Lakes restoration plans (H.R. 792); and evaluate each branch of the armed services’ methods for awarding medals. (S. 11)

Also exempt from FACA’s openness requirements would be a National Commission on Quadrennial Homeland Security Reviews to report on U.S. homeland security threats, needs, and budgets to the Homeland Security Department secretary, the president and Congress. Rep. Harold Ford Jr. (D-Tenn.) introduced the “Homeland Security Strategy Act,” which is in the House Homeland Security Committee.(H.R. 1383)

Other FACA-exempt committees would be created to report on the performance of schools’ career and technical programs (S. 250); review and recommend changes in U.S. democracy promotion programs worldwide (H.R. 1133; S. 516); and approve a petitioning American Indian group as an Indian tribe. (H.R. 464)

Military Tribunals

Sen. Joseph Biden (D-Del.) proposed the only legislation affecting military tribunals &#151 halted since November when a federal district judge declared them unlawful. The “Targeting Terrorists More Effectively Act,” aimed at combating international terrorism, would require the secretary of defense to report to Congress the proposed schedule for military tribunals at Guantanamo Bay, as well as the number of detainees currently held there, the number who are unlikely to face a military commission in the next six months, and the reason for not bringing those detainees before a military tribunal. (S. 12)

USA PATRIOT Act

Much of the USA PATRIOT Act &#151 short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism &#151 is set to expire Dec. 31, and a number of bills have been introduced to limit the most controversial parts of the act as it is reauthorized. While most of its provisions concern civil liberties generally, a number of provisions, particularly concerning wiretaps and searches, could ensnare journalists covering terrorism issues.

Sen. Larry Craig (R-Idaho) and Rep. C.L. “Butch” Otter (R-Idaho) introduced similar versions of the “SAFE Act,” or “Security and Freedom Enhancement Act.” Both bills seek to limit USA PATRIOT Act expansions of the Foreign Intelligence Surveillance Act of 1978, including: roving wiretaps, delayed notice search warrants, and the controversial Section 215.

Section 215 authorizes warrants for records or other “tangible items” from any person or business, and gags the recipient of the warrant from disclosing its existence. It has been criticized as permitting secret searches of library records or even newsrooms, although the government claims it has never been used for such a purpose. Both bills have more than a dozen cosponsors. (S.737)(H.R. 1526)

The “Freedom to Read Protection Act” introduced by Rep. Bernie Sanders (I-Vt.) also addresses Section 215, but would prohibit court orders aimed solely at discovering personally identifiable information about patrons of libraries or booksellers. The bill has 117 co-sponsors. (H.R.1157)

Sen. Russ Feingold (D-Wis.), the only Senator to vote against passage of the PATRIOT Act in 2001, introduced three bills that would limit provisions of the act. The “Reasonable Notice and Search Act” seeks to limit delayed notice search warrants. (S.316) The “Library, Bookseller, and Personal Records Privacy Act” would require that court orders seeking bookseller or library records be supported by “specific and articulable facts” that the person identified in the records is an agent of a foreign power. (S.317) The “Computer Trespass Clarification Act” would limit warrantless surveillance in computer trespass cases to 96 hours. (S.318)

The “Electronic Communications Privacy Judicial Review and Improvement Act,” sponsored by Sen. John Cornyn (R-Texas), would permit wire and electronic service providers, such as telephone companies and Internet providers, to challenge National Security Letters from the FBI requesting subscriber information. It would also allow service providers to challenge the statutory requirement that recipients of a National Security Letter not disclose the fact of its receipt. (S.693)

Campaign Finance Reform

Both the House and Senate are considering campaign-finance reform bills to address issues linked to the 2002 Bipartisan Campaign Reform Act sponsored by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) and prohibiting national political parties and federal candidates from accepting unlimited “soft money” donations. The McCain-Feingold measure limiting expenditures in favor of candidates was challenged in court for its anticipated effects on political speech. The U.S. Supreme Court upheld the constitutionality of the act in McConnell v. FEC but a dissent written by Justice Clarence Thomas predicted that the law would erode free speech and called it “an assault on the free exchange of ideas” that could lead to a “chilling endpoint . . . outright regulation of the press.”

Several bills target “527s,” the tax-exempt groups &#151 named for a section of IRS code &#151 that currently do not have to register with the Federal Election Commission. Sen. McCain’s “527 Reform Act” would require 527s that support federal candidates to register with the commission (and, as a result, follow campaign-finance laws). The bill &#151 whose House counterpart was introduced by Reps. Martin Meehan (D-Mass.) and Christopher Shays (R-Conn.) &#151 would set spending and donation limits on most 527 groups that take in more $25,000 a year; ban unions and corporations from contributing to the 527s; and curtail 527 contributions from individual donors, according to Common Cause. (S. 271, H.R. 513)

The “527 Fairness Act,” introduced Rep. Mike Pence (R-Ind.) would lift many of the donation and spending limits that the 2002 Bipartisan Campaign Reform Act imposed on political parties and campaign committees. (H.R. 1316)

Blogger political speech

Both the House and Senate are considering measures that would block the Federal Election Commission from regulating political Web sites. The commission’s proposed rules and regulations “could squash not only free speech and political activism, but could well impede innovation and technology &#151 unless Congress acts now,” wrote Rep. Jeb Hensarling (R-Texas), who introduced the “Online Freedom of Speech Act.” The bill would exclude Internet communications from the definition of “public communication” in the Federal Election Campaign Act of 1971. (H.R.1605, 1606) Sen. Harry Reid (D-Nev.) introduced an identical bill. (S. 678)

Privacy

“The Privacy Act of 2005,” introduced by Sen. Dianne Feinstein (D-Calif.), would prohibit sale and disclosure of “personally identifiable information” &#151 name, address, e-mail, telephone number, photograph, date of birth, birth certificate number or birthplace &#151 for “marketing purposes.” “Marketing” is defined as “a communication about a product or service a purpose of which is to encourage recipients of the communication to purchase or use the product or service.” The bill applies to any “commercial entity . . . offering products or services involving commerce.” (S.116)

Whistleblowers

Rep. Henry Waxman (D-Calif.) introduced the “Restore Scientific Integrity to Federal Research and Policymaking Act” that would, among other things, extend whistleblower protections to employees who report the falsification or censorship of federally funded scientific analysis. (H.R. 839)

In April, the Senate Homeland Security and Governmental Affairs Committee unanimously approved the “Federal Employee Protection of Disclosures Act ” by Sen. Daniel Akaka (D-Hawaii). It would extend whistleblower protection to national security whistleblowers who face loss of their security clearances as a result of disclosing wrongdoing. The bill would also close loopholes that have reduced the effectiveness of the Whistleblower Protection Act in the years since its original passage in 1989. A 1999 federal appellate court ruling, for instance, said that the law protects only whistleblowers who have irrefutable proof of government wrongdoing. Akaka’s bill would restore coverage for whistleblowers who reasonably believe that government violations, abuse, mismanagement or waste, have occurred. (S. 494)

A measure proposed by Rep. Lloyd Doggett (D-Texas) would amend the Internal Revenue Code to thwart smuggling of contraband tobacco products into the U.S. To that end, the bill would protect employees who blow the whistle on conduct believed to violate federal tobacco smuggling law, so long as they reveal their information to a federal agency, Congress, or a supervisor. (H.R. 1377)

Joanne Royce, an attorney with the Government Accountability Project, cautioned that when a law specifically states that whistleblowers are protected only when they speak to listed parties, it may not be construed to protect media sources. “You can’t count on it,” she said. Whether a whistleblower would be protected for talking to the media in such an instance “depends what forum you’re in, who the judges are, and what the case law is.”

Rep. Stephen F. Lynch (D-Mass.) introduced the “Rail Transit Security and Safety Act,” which would require various investigative studies on rail safety to be submitted to Congress and would create whistleblower protection for railroad employees who give government investigators information about legal violations. The bill would allow the workers who are retaliated against to sue companies for back wages, reinstatement, and more. (H.R. 1109)

The “Targeting Terrorists More Effectively Act,” introduced by Sen. Joseph Biden (D-Del.), would protect railroad employees from retaliation for either refusing to participate in a violation of any rail security law or for telling an employer or the government about a perceived security threat. (S. 12)

Rep. Edward J. Markey (D-Mass.) introduced the “Extremely Hazardous Materials Transportation Security Act,” which could provide whistleblower protection to anyone involved with hazardous materials shipments who refuses to participate in a safety violation or who provides information about the violation to a federal agency or Congress. (H.R. 1414)

Rep. John Conyers Jr. (D-Mich.) introduced the “Patient and Physician Safety and Protection Act,” under which hospitals would be barred from retaliating against employees who report &#151 or contribute to investigations into &#151 violations of restrictions on hours worked by medical students in residency. (H.R. 1228)

A bill to curb government agencies from paying journalists to promote government programs offers whistleblower protection to employees who help in an investigation or lawsuit relating to the prohibition against government-funded propaganda (S. 266)

Food safety responsibilities of 12 different federal agencies would be consolidated under bills to create a Food Safety Administration. Whistleblowers would be protected when they divulge what they believe to be a threat to public health to a federal agency, Congress or supervisor. (S. 729) (H.R. 1507)

The “Registered Nurse Safe Staffing Act” would prohibit discrimination against hospital employees or patients who blow the whistle on alleged violations by Medicare providers of nurse-patient ratio. Employees who prevail in a whistleblower suit are entitled to reinstatement and back pay. Prevailing patients would be entitled to recover $5,000. (S. 71)

The “Clinical Laboratory Compliance Improvement Act” would protect clinical laboratory employees from retaliation when they report Medicare providers’ noncompliance with the conditions of the program. (H.R. 686)

Advertising Controls

A couple of bills would empower federal agencies to patrol advertisers more closely in the name of improving public health.

Sen. Edward M. Kennedy (D-Mass.) introduced the “Prevention of Childhood Obesity Act,” one provision of which would authorize the Federal Trade Commission to monitor and fine “advertisers or network and media groups” who fail to comply with guidelines on advertising and marketing to children. (S. 799)

“The Family Smoking Prevention and Tobacco Control Act,” by Sen. Mike DeWine (R-Ohio), gives the Food and Drug Administration more power to regulate tobacco products. One provision requires cigarette advertising to include a warning label, chosen from a list that includes such warnings as “Cigarettes are addictive” and “Smoking can kill you.” The bill also specifies the size and typeface of the label, depending on the ad. States and localities may also ban or restrict the time, place and manner &#151 but not the content &#151 of cigarette ads or promotions, under the bill. (S. 666) A related bill is sponsored by Rep. Tom Davis (R-Va.). (H.R. 1376)

Cameras in the courts

A bill that could allow better media coverage of federal court proceedings was introduced for the third time by Sen. Chuck Grassley (R-Iowa). The “Sunshine in the Courtroom Act” would give discretion to the most senior judge in any federal court including appellate courts and the U.S. Supreme Court. Sen. Charles Schumer (D-N.Y.) is cosponsoring the bill. He and Grassley introduced two previous versions of the bill. (S. 829)

First Amendment

Congress and the states would be given power to prohibit desecration of the U.S. flag and set criminal penalties for such an act under a bill introduced by Rep. Jo Ann Emerson (R-Mo.). A similar bill sponsored by Rep. Randy “Duke” Cunningham (R-Calif.) would give Congress the power to prevent desecration of the U.S. flag. (H.J. Res. 5, H.J. Res. 10)

“Those who want to express their anger against this country have options that don’t involve destroying the sacred symbol that belongs to all citizens,” Cunningham said on the House floor when he introduced the bill.

Rep. Roscoe Bartlett (R-Md.) introduced a bill which would prohibit condo, co-op and residential real estate management associations from adopting or enforcing policies that would restrict or prevent association members from displaying the U.S. flag. (H.R. 42)