By Gary Walker
A national scandal involving the federal government that secretly sought to obtain the phone records of Associated Press reporters has sparked potential landmark legislation that passed the state Senate Sept. 5.
Senate Bill 558, authored by Sen. Ted Lieu (D-Marina del Rey), would mandate that news organizations and reporters be given five days’ advance notice for subpoenas served on them for their records that may be held by others.
Those records include phone calls or other newsgathering communications.
The senator introduce the legislation in the aftermath of a wiretapping scandal where federal prosecutors targeted reporters of the Associated Press by secretly  collecting records of phone calls of 20 reporters over a two-month period. Federal investigators claimed they were trying to track down a leak of top-secret information regarding a terrorist attack plot in Yemen.
“The government has shown on some occasions a disregard for freedom of the press,” Lieu said. “(This) bipartisan vote makes it clear: California will protect the First Amendment.”
The bill was sponsored by the California Newspaper Publishers Association.
Jim Ewert, counsel of the newspaper association, thinks Lieu’s bill can have far-reaching consequences for reporters and news organizations.
“If SB 558 is signed by the governor, it will prevent the circumvention of the existing protection that the federal government has been using to pierce journalists’ protections of confidential sources,” Ewert told The Argonaut.
Ewert says if the bill become law, the government would no longer be allowed to obtain, for example, information being stored outside the newsroom on a computer server without the news organization’s knowledge.
Lieu said his legislation would also strengthen the state’s shield law by closing an existing loophole, similar to what Ewert described, on accessing a reporter’s records through alternate means.
“Without this bill, government agencies can bypass the shield law by third parties,” the senator explained.
The California Shield Law provides legal protections to journalists seeking to maintain the confidentiality of an unnamed source or unpublished information obtained during newsgathering.
The shield law protects a “publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, or by a press association or wire service” and a “radio or television news reporter or other person connected with or employed by a radio or television station.”
The law only protects a journalist from being adjudged in contempt by a judicial, legislative or administrative body, or any other body having the power to issue subpoenas, for the failure to comply with a subpoena. The shield law does not protect the journalist from other legal sanctions. Thus it generally does not apply when the journalist or news organization is a party to a lawsuit and other sanctions are available.
Another case is when the information is sought by a criminal defendant or upon cross-examination by the prosecution if the journalist has testified for the defendant. In this circumstance, the defendant’s federal Sixth Amendment right to fair trial preempts the state constitutional shield law.
On Sept. 9, the United States Senate Judiciary Committee approved legislation for a national shield law for journalists. The committee sent the full U.S. Senate language that includes protection for journalists from being forced to testify about their work and their sources.
President Barack Obama has championed the passage of a media shield law since he was elected in 2008.
One of the sticking points for some committee members was how to define who is a journalist.
Sen. Dianne Feinstein (D- California) said she would prefer to have a national media shield law for “real reporters” and not, as she said, a 17-year-old with his own website.
“I can’t support it if everyone who has a blog has a special privilege … or if Edward Snowden were to sit down and write this stuff, he would have a privilege. I’m not going to go there,” Feinstein said.
Snowden is a former employee of the Central Intelligence Agency and National Security Agency who leaked classified information on the United States and Britain’s surveillance programs.
Feinstein added an amendment that defines a “covered journalist” as someone who reports news for “an entity or service that disseminates news and information.”
The definition includes freelancers, part-timers and student journalists, and it permits a judge to go further and extend the protections to any “legitimate news-gathering activities.”
Los Angeles Councilman Mike Bonin, a former news reporter, applauded Lieu for championing SB 558.
“The history of this country is based on having checks and balances on the government and freedom of the press,” the councilman said. “We’ve seen time and time again, whether it’s the Pentagon Papers or the Bell scandal how essential it is to have an active, vital and free press.”
Ewert thinks SB 558 as well as the press coverage on the Justice Department’s eavesdropping on reporters has caught the attention of lawmakers. “Not only has it required federal authorities to rethink (their actions), it has spurred them into action,” he said. “I have to believe that SB 558 played some part in their (the Senate committee’s) vote.”
Ewert said Lieu impressed him by coming to his organization to sponsor the bill. “He came to us and identified it as an issue that he wanted to address,” he said. “He should be given tremendous credit for that.”
Lieu said California has always been in the vanguard of creating important legislation.
“I’m very proud that California has been the leader on matters concerning freedom of the press,” he said. “The First Amendment is one of America’s most cherished rights.”
As The Argonaut went to press, SB 558 has been sent to Gov. Jerry Brown, who has until Oct. 13 to sign it, reject it or allow it to become law without his signature.