Media Shield, A Weapon against Business

By May 5, 2008Media Relations

Sen. Arlen Specter (R-PA) argues for passage of a federal media shield law in today’s Washington Post, challenging a recent column by Attorney General Michael Mukasey, who contends a shield law would place reporters above the law. Last week, Politico carried a thorough update on the pending legislation in the Senate, S. 2035. The White House is resisting the legislation, arguing that it may protect bogus journalists and Internet provocateurs who disseminate national security and intelligence secrets.

Yet in Senator Specter’s column, the op-ed by Mukasey, and Politico’s story, no mention is made of business’ troubles with the legislation. The issues being examined all deal with national security and classified intelligence.

Business observers are seriously concerned that the media shield will free from accountability disgruntled employees, unethical attorneys, criminals and others who will be able to steal or otherwise illicitly acquire important, confidential data, release it to a “journalist” — whatever the definition — and do great damage without any public interest being served (beyond satisfying idle curiousity).

Consider this post-media-shield scenario: A popular blogger with mainstream media experience has declared a campaign against Company X for what he views as its record of pillaging the environment. Developing an obsession, the blogger decides to burglarize the CFO’s home when the family is away for the weekend, breaking into the personal safe and stealing the CFO’s laptop. What a wealth of intriguing, damaging information: Employee records, including Social Security numbers, trade secrets, competitive information and financial numbers, even computer passwords.

To punish the company, the blogger posts all this data on his website, causing terrible financial damage not just to the company but to scores of employees. All in the public’s interest, supposedly.

Queried by law-enforcement authorities and then a judge hearing the company’s lawsuit (years later) against the blogger, the blogger says, “Sorry. This information was given to me by a source to whom I promised confidentiality. I cannot in good faith release the identity. To do so would undermine the First Amendment and chill the media’s robust information-gathering that is critical to an informed public and America’s democratic freedoms.”

The blogger escapes responsibility. Editorialists and the Electronic Frontier Foundation cheer his brave commitment to the Constitution. Russian-made knock-offs, developed with the revealed trade secrets, flood the market. Company X files bankruptcy in the face of numerous class-action lawsuits prompted by the release of information.

Too theoretical? A former reporter turned blogger would never commit a crime? Well, consider other possibilities. An anti-business activist steals the information and just gives it to the reporter after eliciting the promise of confidentiality. Or a reporter, sensing a scoop, buys the information from a site on the Internet.

Well, unfortunately, that IS price we have to pay for freedom, you respond. Corporations need to factor the risks of freedom into their costs of doing business.

Reverse the scenario then: A pro-business blogger steals confidential files from a large environmental organization, revealing enough information about its activities to justify a civil RICO suit by some of its targets. Up on the web it goes. “Who are your sources?” “According to the federal media shield, I don’t have to identify them.”

A shield cannot assess a reporter/blogger/citizen journalist’s motivation, the circumstance of the revealed information, or the public interest that’s being served. For that you need a judge, one who is able to apply a balancing test. As the former New York Times’ columnist Anthony Lewis wrote, “Congress should pass legislation that makes clear the public interest in journalists’ confidentiality but leaves it to judges to weight that against other social necessities…a statute will have to leave the balancing of interests to be done by judges, case by case.”

We don’t suggest that the Senate is being cavalier about these business-related issues, but it is troubling to see the entire public debate about the legislation focus on the national security and intelligence issues, without addressing the significant threats a media shield could pose to business and the economy.

Balancing and business…two priorities that the media and the Senate should give much more thought to when debating the media shield law.

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