Reporters Committee warns of developing pressures affecting reporters’ abilities to keep newsgathering information confidential; sees even greater need for federal shield law

In preparation for Thursday’s House Judiciary Committee hearing on a proposed federal shield law, the Reporters Committee for Freedom of the Press today released a “White Paper” outlining the impact on the free flow of information to the public of several new realities facing journalists: advances in technology, changes in rules of discovery, and new judicial practices.

“For the last three years, the Reporters Committee has tirelessly advocated a federal shield law,” said Reporters Committee Executive Director Lucy A. Dalglish. “But it has become increasingly apparent to us over the past several months that the landscape navigated by reporters protecting their sources has changed. The situation has become increasingly more dire.”

Information that once existed only in a reporter’s notebook can now be accessed by companies that have obligations not only to their reporters, but to their shareholders, their other employees, and the public. Additionally, in the wake of an unprecedented settlement in the Wen Ho Lee Privacy Act case, parties will — and have already started to — target news media corporations not just for their access to a reporter’s information, but also for their deep pockets.

The potential for conflicts of interest is staggering, but the primary concerns of the Reporters Committee for Freedom of the Press are that:

• because of the 21st-century newsroom’s reliance on technology, corporations now have access to notes, correspondence and work-product information that before only existed in a reporter’s notebook;
• the new federal “e-discovery” court rules allow litigants to discover vastly more information than a printed page — or even a saved e-mail — would provide during litigation;
• while reporters generally only have responsibilities to themselves, their family, and their sources, a corporation often has responsibilities to shareholders and regulators that can force compromises in the protection of newsgathering materials;
• since so many reporters have said that they would willingly go to jail to protect their sources, some plaintiffs and prosecutors are now threatening to financially ruin the journalist, with the assumption that news media corporations will back their reporter and pay those hefty fines;
• the settlement in the Wen Ho Lee case has demonstrated to civil plaintiffs that a perhaps large check from news media organizations can be obtained in lieu of confidential information;
• the costs of litigation — both emotional and financial — are weighing heavily on journalists and news media corporations, which seriously threatens the free flow of information to the public.

The White Paper, titled “Confidentiality Complications: How new rules, technologies and corporate practices affect the reporter’s privilege and further demonstrate the need for a federal shield law,” is intended primarily to assist reporters who are covering the debate over reporters privilege statutes in both Congress and state legislatures. Thursday’s hearing starts at 10 a.m. in Room 2141, Rayburn Bldg. Speakers representing the media will include: New York Times columnist William Safire; WJAR television reporter James Taricani; and Washington, D.C., media attorney Lee Levine of Levine Sullivan Koch & Schulz, LLP.

The white paper can be found at: www.rcfp.org/news/documents/20070613-whitepaper.html