Trying to exclude WikiLeaks from shield law stinks

Wednesday, August 25, 2010

One of the odors emanating from Washington, D.C., these days is from journalists marking their territory.

Whatever awkwardness previously existed as journalists desiring a federal shield law wooed the legislators they’re supposed to be watching, it’s now worse. In recent weeks, the two groups have publicly joined forces to exclude WikiLeaks from possible protection under the bill. In doing so, journalists have managed both to look territorial and to endanger the independence they’re striving to create.

On Aug. 4, Sen. Charles Schumer, the New York Democrat and Senate sponsor of the Free Flow of Information Act, announced that he intended to include in the proposed law new language specifying that WikiLeaks and organizations like it would not be able to use the act to protect the identities of confidential sources.

WikiLeaks, as we all now know, is the organization that in July posted almost 77,000 classified Afghanistan war records on its website. Before posting the documents, WikiLeaks apparently provided some 92,000 records to The New York Times, London’s Guardian and Germany’s Der Spiegel. All of these news organizations published lengthy reports about the classified documents, but they refused to release information they thought unreasonably dangerous.

WikiLeaks, on the other hand, posted 77,000 records without redaction but, according to its website, withheld 15,000 “as part of a harm minimization process demanded by our source. After further review, these reports will be released, with occasional redactions, and eventually, in full, as the security situation in Afghanistan permits.”

Reacting to the public furor surrounding WikiLeaks’ behavior (including criticism from the Times), Schumer said he and Sen. Dianne Feinstein, D-Calif., “are working with representatives of the newspaper industry in crafting the new language that will explicitly exclude organizations like WikiLeaks — whose sole or primary purpose is to publish unauthorized disclosures of documents — from possible protection.”

It doesn’t seem all that long ago that representatives of the newspaper industry would have recoiled from working with Congress to deny legal protection to anyone who leaked confidential or classified documents. Today, however, they seem happy to be doing so.

For example, Kurt Wimmer, an attorney representing the Newspaper Association of America, told Yahoo’s “The Upshot” that his client supported adding language to keep organizations like WikiLeaks from being protected. “There’s a distinction (between) how WikiLeaks works and how news media organizations work,” he said, describing WikiLeaks as more of “a drop box for leaked documents.”

Similarly, Paul Boyle, senior vice president for public policy at the NAA, told the Reporters Committee for Freedom of the Press that “Senate sponsors want to shore this up by stating it is not their intention to cover WikiLeaks-type websites that simply publish raw data without editorial oversight.”

More generally, Lucy Dalglish, executive director of the Reporters Committee, criticized WikiLeaks as “not journalism.”

“It’s data dissemination, and that worries me,” she told Time magazine. “Journalists will go through a period of consultation before publishing sensitive material. WikiLeaks says it does the same thing. But traditional publishers can be held accountable. Aside from Julian Assange, no one knows who these people are.”

Little doubt exists that it’s been politically expedient for those seeking passage of the shield law to distance themselves from WikiLeaks and Assange, the site’s controversial founder. And that was before allegations of rape and molestation were made and then dropped against Assange in Sweden.

In response to Schumer’s announcement, for example, Kevin Smith, president of the Society of Professional Journalists, told “The Upshot” that he hadn’t seen Schumer’s proposed amendment but acknowledged he was concerned that WikiLeaks’ posting of the classified documents might derail the shield law.

“This is the closest we’ve come to getting something moved,” Smith said, “and it’s unfortunate that this WikiLeaks situation’s come up.”

It would be more unfortunate, however, if journalism organizations, in their zeal to see a federal shield law finally pass, encouraged Congress to restrict the act’s protection to those who practiced journalism only in a particular way.

Already, after all, these organizations have had to accept one necessary evil of a shield law — a definition of who is entitled to invoke it. Because many are uncomfortable with having the government define “journalist,” the proposed federal law defines those protected by the act not by who they are (or what they are called), but by what they do. As currently drafted, the Senate version of the act generally defines a “covered person” as someone who, “with the primary intent to investigate events and procure material in order to disseminate to the public news or information … regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters.”

Though the language of Schumer’s amendment is not yet known, it appears likely it will shift at least some of the act’s focus from what a person does to how he does it. Does the person, in Boyle’s words, “publish raw data without editorial oversight”? Or, using Dalglish’s standard, does the person “go through a period of consultation before publishing sensitive material”?

As comforting as it might be to “real” journalists to incorporate editorial oversight into a shield law and to use it to distinguish further between the “us” who are entitled to the law’s protections and the “them” who are not, at least two dangers exist in that approach.

First, does anyone — including the most mainstream of traditional journalists — really think it a good idea that Congress and judges define, analyze and evaluate what is appropriate “editorial oversight”? For decades, news organizations have struggled to resist those efforts in libel cases and, so far, those struggles have succeeded. If those same organizations now invite legislators and judges into their newsrooms to see how worthy their reporters are of protection under a shield law, they shouldn’t be surprised if the legislators and judges decide to stay.

Second, is the free flow of information really served if the act’s protections are denied to those who don’t have or practice editorial oversight? As Schumer acknowledged in his statement, the act already contains language that would limit or deny protection to those who provide or publish classified military secrets. Specifically exempting WikiLeaks and other organizations that might otherwise qualify for protection under the act in at least some cases seems designed not to enhance the free flow of information but to channel that information to mainstream sources.

Having worked so hard for so long to have a federal shield law finally in sight, it’s understandable that journalists are both sensitive and territorial about threats to its passage. However understandable that sensitivity and territoriality might be, however, journalists should be seeking to expand — not restrict — the act’s reach.