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

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

Mr. Chairman, I’d like to call up Amendment ALB 13767…

Let me explain why I think this amendment is needed. I’ve had longstanding concerns that the language in the bill as introduced would grant a special privilege to people who really aren’t reporters at all, who have no professional qualifications whatsoever.

The fundamental issue behind this amendment is should this privilege apply to anyone – to a 17-year-old who drops out of high school, buys a website for $5 and starts a blog? Or should it apply to journalists, to reporters who have bonafide credentials?

This bill is described as a reporter shield bill so I believe it should be applied to real reporters.

The attorney-client privilege applies to attorneys, not any non-legal advisors. The spousal privilege applies to spouses, not to boyfriends and girlfriends.

As I described the last time this committee passed this legislation, this could have been interpreted to cover hate websites like that of the neo-Nazi organization, the National Socialist Movement, or even Senate press secretaries. So I’m very grateful that the media coalition and Sen. [Chuck] Schumer (D-N.Y.) worked cooperatively with Sen. [Dick] Durbin (D-Ill.) and me to make sure that the bill doesn’t do that.

So this amendment effectively sets up a test for establishing bonafide credentials that make one a legitimate journalist.

The first part of our amendment – page 5 starting on line 15 – defines a covered journalist as someone who is an employee, agent, or independent contractor for a media entity. It’s important to note that as part of the compromise, we took out the word salaried before employee as this apparently caused some unnecessary worry to some people.

We included a very broad list of media entities the journalist can be affiliated with including newspapers, news websites, and “any other news service” distributed digitally among other things.

Then we have a functional test, which is essentially the same as what is in the bill now.

Recognizing the migration of reporters away from newspapers and magazines as those industries struggle, we also included on page 7 starting on line 17 a provision for a journalist to establish their journalistic bonafide even if they’re not currently affiliated with a media entity through look-back provisions.

As part of the compromise we lengthened how far back in time the journalist’s past experience could be. They would be included in the definition if they would have met the principle definition in clause one for any continuous one-year period in the past 20 years or any continuous three-month period in the past 5 years.

They would also qualify if they had “substantially contributed as an author, editor, photographer, or producer to a significant number of articles, stories, programs, or publications” by one of the described media entities within the past 5 years. Again, as part of the compromise, we lengthen this time from 2 to 5 years. The purpose of this is to cover a legitimate journalist, such as a Dan Rather, who leaves his media entity and takes to publishing freelance stories on the web.

Finally, we added a safety valve provision – the judicial discretion paragraph – paragraph B on page 10 line 24. That paragraph authorizes a federal judge to apply the privilege to a person who doesn’t fall within the parameters of one of the previous definitions if the judge determines, based on specific facts contained in the record, that doing so would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities under the specific circumstances of the case.

I believe the language – legitimate news-gathering activities – is the key and would exclude hate websites and other persons who are not actually engaged in the pursuit of journalism.

We also made various refinements to the language describing the relevant media entities, taking all suggestions made by the media coalition, including specifically adding mobile applications among other things.

This compromise amendment now is supported by a long list of 71 different media and public interest organizations, including the Online News Association, Newspaper Association of America, National Association of Broadcasters, Society of Professional Journalists – they had been a hold out over our previous version of this amendment – and the California Newspaper Publishers Association…

The intent of this amendment has been to come up with a definition of a covered person as a covered journalist engaged in news-gathering. If not for an entity – when we all know what the entities are – that has shown a substantial record for a period of time which is defined in doing this so that someone filled with hate or the occasional blogger doesn’t call him or herself a journalist.

I think journalism has a certain trade craft attached to it. And journalists – it’s a profession.

Now, I recognize that everybody could think they’re a journalist. I don’t think my press secretary should qualify for this because he’s not involved in news-gathering.

So I think we’ve reached as far as we can to get there, to get a compromise. And I think we’ve got it as close as we can get it.

I do believe we strengthened the national security portion of this in the amendment as well.

Mr. Chairman, I’m puzzled by this because Sen. Cornyn, Sen. Sessions, Sen. Grassley, Sen. Hatch, Sen. Coburn, and Sen. Kyl voted with us the last time this came up, and the problem was that members thought it was too tough. And so the purpose of the negotiation was to try to strike the balance and not have a situation where virtually anybody is entitled to this privilege.

And I feel very strongly that I can’t support a bill if just anybody who sits down and goes out on a blog is suddenly a journalist and has this special privilege. Not everybody is a spouse. Not everybody is a lawyer. So the privileges, it seems to me, have to be limited based on a certain history, a certain trade craft, and this is a privilege.

And I think giving the judge the opportunity in questionable cases to make the decision is something that has brought this together. That’s sort of the saving grace. Otherwise, it’s open sesame. Anybody can say anything with no background, with no integrity. If a [Edward] Snowden were to sit down and write this stuff, he’d have a privilege. And I’m not going to go there.

…In the world that I spend most of my time, there’s leak after leak after leak. And a leak of classified information maybe seem harmless to one person where it may unveil possibility of a source, the identification of a source or a method, and if it’s classified, it’s classified. And there’s a prison sentence of up to 10 years. The problem is it’s hard to investigate and convict this. So I don’t want to make that more difficult…

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