House panel approves legal shield for bloggers

Over objections from the Bush administration, a divided House committee approves bill allowing people doing journalism for "financial gain" to keep sources confidential.
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WASHINGTON--A congressional panel on Wednesday voted, against the Bush administration's wishes, to shield journalists including advertising-supported bloggers from having to reveal their confidential sources in many situations.

By a voice vote only after politicians spent nearly two hours airing various misgivings, the U.S. House of Representatives Judiciary Committee approved an amended version of the Free Flow of Information Act. Chiefly sponsored by Reps. Rick Boucher (D-Va.) and Mike Pence (R-Ind.), it proposes protection for a wider set of people than previous years' versions.

"Today, we are reclaiming one of the most fundamental principles enshrined by the founding fathers in the First Amendment of the Constitution," Committee Chairman John Conyers (D-Mich.) said before the vote.

In response to concerns raised by the Bush administration and other politicians, the revised bill attempts to exclude the "casual blogger" from reaping those benefits by stipulating the protections apply only to those who derive "financial gain or livelihood" from the journalistic activity, Boucher said Wednesday. That broad rule could, however, include part-time writers who receive even a trickle of revenue from Google Ads or Blogads.com.

The bill defines the practice of journalism as "gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public."

"To extend the shield beyond (those who gain financial benefit) would create an avenue for virtually anyone to avoid compelled testimony by simply creating a blog that contains the information in question," which is not the bill's intent, Boucher said.

But in an age in which it's relatively easy and inexpensive to slap advertisements on blogs and meet the "financial gain" standard, several politicians questioned on Wednesday whether that language will make much of a difference. Anyone "could start a blog and request advertising on that blog, and whether they get it or not, would be considered a journalist under this bill," Rep. Adam Schiff (D-Calif.) said.

Such a definition "would potentially encompass millions of people who blog or change the manner in which they blog (to gain the privilege)," said Rep. Bob Goodlatte (R-Va.), adding that the shield is "far too broad and far too easily gained for me to support that language."

Both Boucher and Pence said they sympathized with those complaints and planned to work on changing the definition further before the bill goes to a vote in the full House. Conyers proposed assembling a "working group" to work out the differences. The bill's supporters had previously resolved to leave it up to the courts to refine the journalist definition as necessary, rather than running the risk of excluding certain people by narrowing the scope beforehand.

Some form of "reporter's privilege," either through laws or court decisions, already exists in 49 states and the District of Columbia, and major news organizations support the federal bill. But the Bush administration has continually opposed passage of such a measure, arguing the most recent House effort's approach is so sweeping that it could imperil national security and federal criminal investigations. Currently there is no federal shield law.

To be sure, immunity under the federal bill would not be absolute, and the Boucher amendment adopted Wednesday added additional exceptions.

In the approved version, people eligible for the privilege could be forced to reveal their sources when it's necessary to prevent an "act of terrorism" against the United States or its allies, when it's clear that crimes have been committed, when "significant specified harm" to national security could occur, or when trade secrets, nonpublic personal information or health records are compromised in violation of existing laws. The person seeking to compel the journalist to turn over the information would also have to exhaust "all reasonable alternative sources." Some politicians said even more exceptions are needed.

Boucher's amendment also specified that "foreign powers or agents of foreign powers"--including a government-controlled newspaper--and any "foreign terrorist organization" designated by the Secretary of State cannot receive the protections.

Rep. Lamar Smith (R-Texas), the committee's ranking member, said he intended to oppose the bill on Wednesday because he said he believed the amended bill will still cause the Justice Department to "be constrained as it goes about the business of conducting investigations and prosecuting criminals."

Smith nevertheless scolded what he perceived as the Justice Department's lack of cooperation with the committee on the bill. The agency "should do more than just complain, it should negotiate in good faith and provide the committee with language that addresses its concerns," he said.

With Congress scheduled to depart for its summer recess at week's end and lingering disagreements over the bill's approach, it's unclear whether the bill will move ahead anytime soon. The House bill's Senate counterpart has not yet gotten any attention this year.

CNET News.com's Declan McCullagh contributed to this report.


Correction: This story inaccurately described how Reps. Adam Schiff and Lamar Smith voted. While both voiced opposition to the bill, no vote was recorded.

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