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House of Representatives approves shield law; RSF urges Senate to stand by more ambitious version despite threat of presidential veto

(RSF/IFEX) - Reporters Without Borders hails a House of Representatives vote on 16 October 2007 approving, by a very large majority, a proposed Free Flow of Information Act that would protect journalists from having to reveal their confidential sources to federal courts.

The press freedom organisation nonetheless hopes that a more ambitious version of the bill before the Senate is the one that is finally adopted. It is also concerned about the threat of a presidential veto that was brandished after the 16 October vote.

"The lower house vote is an important step towards ending the absurd status quo," Reporters Without Borders said. "It is impossible to continue justifying the fact that legislation in 32 states and the District of Columbia recognises that the press has at least a relative right to the protection of sources, while federal legislation does not.

"This untenable situation made it possible for journalists who refused to identify their sources or turn over their notes to be jailed by federal judges on the grounds that national security was in danger, even if their work had nothing to do with national security."

Reporters Without Borders added: "We nonetheless regret that the bill approved on 16 October made too many concessions to a federal government that has restricted civil liberties and is still threatening to veto it. We think the version that has been drafted in the Senate is more ambitious and we urge senators to stick to it."

The proposed law, known as a "shield law," was passed by the lower house by 398 votes to 21 on 16 October after being approved by the House judiciary committee on 1 August. A different version was adopted by the Senate judiciary committee on 4 October.

Both versions grant journalists "qualified privilege" - not an absolute one - as regards the protection of their sources. In other words, they would still have to identify their sources to federal courts in certain circumstances.

In the version approved by the House, the confidentiality of journalists' sources would be overridden in the following cases:
- in a criminal investigation, if there are grounds for thinking that "the testimony or document sought is critical to the investigation or prosecution or to the defence against the prosecution or to the successful completion of the matter;"
- "disclosure of the identity of (the) source is necessary to prevent an act of terrorism against the United States or its allies" or in case of "significant and articulate harm to the national security;"
- "to prevent imminent death or significant bodily harm;"
- "to identify a person who has disclosed a trade secret" or "individually identifiable health information;"
- in cases in which "the public interest in compelling disclosure of the information or the document involved outweighs the public interest in gathering or disseminating news or information" - the notion of "public interest" here clearly being a problem.

The House version would also restrict this qualified privilege to persons who earn a "substantial portion" of their livelihood from reporting or do it for "substantial financial gain." This would exclude amateur bloggers and journalism students. Protection of sources would not apply in federal courts to:
- any representative or agent of a foreign power
- any organisation designated as a foreign or local terrorist organisation.

The version approved by the Senate judiciary committee defines journalists in a less restrictive manner and would in principle apply to all those "engaged in journalism" without necessarily being paid for it. The exclusions regarding criminal activity would also apply to prevention of kidnapping as well as death and bodily harm. On the other hand, it does not impose any other restriction mentioned in the House version.

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