House Shields Reporters & Sources, but Business?

By October 17, 2007Media Relations

The House on Tuesday passed H.R. 2102, the Free Flow of Information Act, known in the vernacular as the media shield law. The vote was 398-21.

Most states have a form of reporter protection under the theory that a qualified privilege serves a free press and a free society; the perceived need for a federal statute rose among the media with the stories based on leaks and subsequent subpoenas of reporters on the Iraq war. The Bush Administration has threatened a veto based on national security concerns (Statement of Administration Policy).

This San Francisco Chronicle story is a good summary of the issue, with the baseball steroid angle thrown in.

Business worries that shield legislation will also protect people who steal things like trade secrets — potentially worth millions of dollars — and then provide them to the media. We can well imagine a disgruntled employee, no doubt sanctified as a “whistleblower,” stealing a recipe for anti-malarial drug, for example, and leaking it to an alternative newspaper to wreak revenge on the employer. Such plain and simple theft of property should not be made off-limits by merely giving the information to a protected class of journalist.

The House bill attempts to protect business with this language in Section 2, Compelled Disclosure:

“(a) Conditions for Compelled Disclosure- In any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person—“

…and then this paragraph:

C) disclosure of the identity of such a source is necessary to identify a person who has disclosed–
(i) a trade secret, actionable under section 1831 or 1832 of title 18, United States Code;
(ii) individually identifiable health information, as such term is defined in section 1171(6) of the Social Security Act (42 U.S.C. 1320d(6)), actionable under Federal law; or
(iii) nonpublic personal information, as such term is defined in section 509(4) of the Gramm-Leach-Biley Act (15 U.S.C. 6809(4)), of any consumer actionable under Federal law;….

The NAM has worked with the sponsors of both the House and Senate versions of the bills and believe good progress has been made in addressing business’ concerns. Still, you can anticipate litigation as some point if the bill is ever enacted. We picture some thief of a company’s intellectual property cloaking his crime with claims of “public interest” and journalistic rights. It will not be an edifying occasion for journalists, lawyers or business.

Leave a Reply