Transcript: Sen. Chuck Schumer’s remarks on the Free Flow of Information Act – Sept. 12, 2013

Partial transcript of remarks by Sen. Chuck Schumer (D-N.Y.) on the Free Flow of Information Act. The Senate Judiciary Committee hearing was held on Sept. 12, 2013:

…The bill provides a shield for reporters against unwarranted and unneeded intrusion. But it’s flexible to account for the legitimate needs of law enforcement, private litigants, and national security. It is Kevlar, not Kryptonite.

And here’s the bottom line: No matter who the Attorney General is, there’s always going to be a risk that without judicial oversight, mistakes are going to be made.

We’ve always had a balance in this Republic since the days of its founding between security and freedom.

And in this area, particularly as things evolve, we have not delineated that balance and it’s led to all sorts of blurred lines, misconceptions and problems.

We know that the pendulum’s going to swing. Prosecutors will lose sight of the need to preserve the free flow of information in their understandable zeal to prosecute leakers who want to harm our country in one way or another.

Our bill would preserve that ability but real protections and notice for journalists in all but the most extreme cases.

We’ve never seen starker examples of why we need this legislation than we have this year. You could ask AP or Mr. Rosen from Fox News or Mr. Risen from the New York Times.

And in cases that don’t involve leaks or implicate national security, our bill has a legitimate balancing test. We’ve always said – everyone of us, I think – that there ought to be a balance. Well, this enacts that balance into law. And it takes account of the different concerns that drive both the need for information and sometimes the need for non-disclosure.

So let me say a few words about the substitute amendment that we adopted when the committee began consideration in August because that made the bill different than the one that had been previously voted out of this committee.

Importantly, the substitute amendment makes the elements of the newly proposed Justice Department guidelines the law of the land so they can’t be undone.

In many ways, our bill is already tougher than the new guidelines but DOJ smartly proposed new ideas that would offer additional protections to journalists while carefully balancing that need against national security.

So first under our bill, DOJ can’t delay notifying a reporter or news agency when their records are being sought for more than 90 days. Lack of notice has been one of the key objections to how the Justice Department has conducted itself. The guidelines would make this the norm in records cases. Whether the next Attorney General or the next President could change their mind and our bill doesn’t let this happen.

Second, we’re going to make sure that the Department of Justice guidelines and our bill’s provisions regarding record requests cover situations when all types of records are sought. The original bill would only apply to cases where the government was seeking records from third-party communications – cell phone companies, email providers. But the new bill will apply if the government seeks other records as well and that was generally sought after.

And our bill provides language to harmonize its provisions with the Electronic Communications Privacy Act to provide the most protection possible to members of the Fourth Estate. This was a big priority of Chairman [Patrick] Leahy, and that we were happy to add that in.

Finally, Mr. Chairman, I want to say a few words about who the bill will cover. As you know in our original bill, we didn’t define the word journalist but used an intent test. In other words, someone could only receive shield protections if he or she gathered confidential source information with the intent to disseminate it to the public as news.

Senators [Dianne] Feinstein (D-Calif.) and [Dick] Durbin (D-Ill.) from the beginning even when the bill was first introduced have a different view about who ought to be covered under the bill. This difference in opinion dated back to 2009, and I’m grateful that my friends from California and Illinois were willing to sit down with me and representatives from the media, put our heads together to find some common ground, and I’m extremely proud that we were able to reach that common ground, which has been over 4 years in the making…

The final point that I want to make is this: I think this bill is a broad bipartisan consensus. We know – and it’s a consensus between the executive branch and the legislative branch, which always have conflicts here.

We know that there’s a need to do something. We know that there are times when national security is paramount. But we also know there are many instances where either national security is not even mentioned or national security is falsely used as an excuse. And our bill deals with all of those issues in a fair and balanced way.

If there were one word I’d use to describe the legislation, it is balanced and everyone can point to one little thing or another. But it is a lot better than the present situation where we’re sort of walking around blindfolded. It has the support of both law enforcement and media organizations, which is a pretty good accomplishment and I would urge its passage.

Mr. Chairman, I’ll be brief. I have to say really what Sen. [Mike] Lee said as well as what Sen. [Dianne] Feinstein and [Dick] Durbin said. And we’ve wrestled with this. Sen. [Amy] Klobuchar is right. We’ve been talking about this – this committee passed a very similar bill in 2009 bipartisan. So to say it’s been done in response to mistakes – we all admit the administration made mistakes – is wrong. But because they made mistakes, it highlighted the need for legislation. I think that is true. But I’m sure it wasn’t derived, put together because of those – because of what happened.

We struggled with what should be a journalist. Some people want the definition to be extremely broad; some to be extremely narrow. And it occurs at a time when journalism’s changing, as Sen. Durbin pointed out. And so we’ve wrestled with that.

The original Feinstein-Durbin amendment I did not support. Didn’t support it then, didn’t support it a month ago because I thought it didn’t adequately take into account people who were practicing journalism in a different way.

But the changes that were made – and I would just point out to Sen. Lee – particularly the escape valve provision, which Sen. Feinstein mentioned, which allows a judge to exercise discretion to extend protection to those who are not specifically covered by the proposal, I hope would allay some of the legitimate concerns that he brought up.

And I think it’s a fair and good compromise. I will say this, we’ve talked at length over the last few days to the major privacy groups and journalistic groups in terms of new journalism and many of them have signed off on it, many others said that they supported it, that they were favorably disposed towards it…No one was opposed.

So I think that the kinds of concerns that have been represented by Sen. Lee are at least in part, if not fully, met by the amendment. And I’m happy and proud to support the amendment.

…Our definition is as broad as any state’s of the 45.

…I appreciate and I think Sen. [Ted] Cruz’s remarks are fair, balanced, and seeking the same kind of goals that many of us – the sponsor of the bill are seeking, and we don’t want to just limit it in this new world to corporate interests.

So what do you do with the citizen blogger? That’s a very good question. Some are legitimate journalists as you say. Some are not, as Sen. [Dianne] Feinstein says.

And I know that the gentleman is a very fine lawyer, but even with his legal skills I would feel it would be hard pressed to write into law which citizen bloggers, for instance, should be included and which should not.

So what do we do? What we’ve always done in hundreds of years of Anglo-Saxon jurisprudence. We put out certain standards and the judge apply them to the specific situation in a balancing test.

And that’s we did here and that’s really the nut of the compromise. I would not have gone along with the original Durbin-Feinstein bill because I thought it was too restrictive on a citizen blogger – you know, the new media type side. There are certain people who are journalists who do it in a different way and new technology as Sen. Durbin and Feinstein have pointed out allow them to do it. But there are others who are not and shouldn’t be afforded the protection.

And I would say to my colleague, it’s hardly a perfect solution because there is no perfect solution. But the only and best solution in that case is to add the provision we did…It’s a difficult issue and there’s no good way to just have a set definition and make it work.

…He’s a good judge, good lawyer. We have privilege all the time as he well knows in our jurisprudence. We have spousal privileges. Should we say, “Oh that’s a violation of the First Amendment?” We have lawyer-client privileges. That’s a violation. We always have privileges.

And the second thing I’d say is this: The easy way out is to do nothing and leave it as a morass, leave national security hanging in the balance, leave protections – legitimate protections – when they don’t even involve national security hanging in the balance. That is the easy way out.

This is not – in a difficult area – a perfect bill. But I would say that whether your perspective is left, right, or center, whether you tend to side with the First Amendment or you tend to side with national security, to do nothing is far, far worse given where we’re at.


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