Brad A. Greenberg on the Free Flow of Information Act of 2013

Brad A. Greenberg is Intellectual Property Fellow at Columbia Law School’s Kernochan Center for Law, Media and the Arts. He writes primarily about laws that encourage, restrict, or regulate speech and technological development, with an emphasis on legal questions raised by new technologies; it at times draws on his previous career as a newspaper reporter. Recent publications include “Copyright Trolls and Presumptively Fair Uses,” 85 U. Colo. L. Rev. 53 (2014); “The Federal Media Shield Folly,” 91 Wash. U. L. Rev. 437 (2013); and “More Than Just a Formality: Instant Authorship and Copyright’s Opt-Out Future in the Digital Age,” 59 UCLA L. Rev. 1028 (2012). He offers the following thoughts on recent developments in media shield policy: 

At the New York Times’ Sources + Secrets conference Friday, one panel took up a perennially popular piece of legislation among news organizations and industry groups: a so-called media shield law.

Numerous media shield bills have been proposed in the 42 years since the Supreme Court ruled that the Constitution does not protect reporters from being compelled to testify; all proposals have failed. But the Free Flow of Information Act of 2013 appears different. The bill has bipartisan support, the endorsement of President Obama, and has already moved out of Senate committee. It has also been overwhelmingly supported by major news organizations and industry groups – reflected again at Sources + Secrets.

But there are at least three substantial challenges to the bill’s efficacy. The first, a broad national security exemption, has received the most attention; it also might be an unavoidable feature of any politically palatable media shield. The second is that the bill normalizes the process of subpoenaing reporter records and, worse, displaces accountability from within the Executive across the Judiciary, Congress, and a Fourth Estate that has enthusiastically endorsed judicial review of subpoenas. This cost, identified by Dave Pozen, suggests that reporters might be better off with no shield at all. The third challenge is the massive loophole the bill leaves for acquiring reporter records via third-party service providers.

I discuss each in a new essay for the Washington University Law Review. Here, I’d like to emphasize the bill’s provision for records from third-party service providers, which has received the least attention. Even without taking a side in the broader debate over the third-party doctrine, this is the most easily resolvable flaw in the Free Flow of Information Act.

The relevant part of the bill appears in Section 6. It states that a government investigator must notify a news organization if it plans to subpoena records from a third party, such as a telephone service provider. However, notice may be delayed forty-five days if a judge “determines by clear and convincing evidence that such notice would pose a clear and substantial threat to the integrity of a criminal investigation…” A second forty-five-day delay may be afforded if the judge again finds a clear and substantial threat to an investigation. The key question, then, is when would notice pose such a threat? The bill partially answers the question in Section 6(c)(3):

For purposes of this subsection, a substantial threat to the integrity of a criminal investigation exists when the judge of the United States involved finds, by clear and convincing evidence, that the target of the investigation may learn of the investigation and destroy evidence if notice is provided.
Bill supporters – i.e., most mainstream news organizations and industry groups – have been sanguine about this provision. Basically, if the Free Flow of Information Act became law, acquiring records from a third party would require at least more than is necessary now. That’s something.

To be sure, it is something. But it isn’t much.

The bill already proffers that media organizations and reporters are different and should be treated differently than individuals generally under the third-party doctrine. Notice and opportunity to challenge would instead be the norm. But at the same time, the shield law would build in a backdoor that would take any teeth out of the unique protection for media. Substantial threat is met if the subject of the investigation (presumably, the source the reporter is trying to protect) “may learn of the investigation and destroy evidence.” It’s not clear how likely discovery needs to be; the bill just says “may.” But even if the bill required probability, it would seem clear and convincing evidence of such a likelihood could be presumed – and without an adversarial party to rebut that presumption.

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