Even before the NSA revelations that consumed the summer of 2013, the Obama administration was under fire for tapping the phones of Associated Press journalists in an attempt to find their sources. In the aftermath, the White House suggested reintroducing a 2009 media shield bill proposed by Senator Charles Schumer (D-NY). Months later, The Huffington Post reports that Schumer's bill has passed the Senate Judiciary Committee, but Congress has had to deal with a difficult, politically charged question: who counts as a journalist worthy of protection?
The question is one of the things that derailed the bill on its first run though Congress. Schumer's bill would add a layer of protection between journalists and government court orders, requiring a judge to decide that an order was narrowly tailored and based on a need that couldn't be met any other way before approving it. When WikiLeaks and several newspapers began publishing news from diplomatic cables provided by Chelsea Manning, though, the tide turned against journalists and whistleblowers.
Schumer scrambled to add new language, attempting to "remove even a scintilla of doubt" that either WikiLeaks or Manning could be considered a journalist. Even so, the bill never passed committee. Now, the question isn't just whether an explicitly leak-based organization like WikiLeaks would qualify; it's whether unpaid bloggers or other non-traditional journalists will receive the same protections as newspaper and television reporters.
The 2010 diplomatic cable leaks derailed Schumer's original bill
Leading the push towards a more exclusive standard is Senator Dianne Feinstein (D-CA), also a prominent supporter of the FISA Amendments Act under which the NSA operates many of its surveillance programs. In early August, she expressed concern that Schumer's law needed to be limited to cover only "real journalists," worrying that "this would provide special privilege to those who are not reporters at all." Feinstein and Senator Dick Durbin (D-IL) — who has also questioned whether "someone who is tweeting" should get protection — proposed an amendment that would limit the bill to "employee, independent contractor, or agent" of an agency that investigated and disseminated news through a variety of methods, setting minimum periods these people would need to have worked: a continuous three-month period in the preceding five years or a continuous one-year period in the preceding ten.
While Schumer's bill included similar limits, its language was more general. Durbin and Feinstein's amendment, however, was ultimately adopted. Since a judge can also be called in to decide hard cases about who is a "real journalist," there's a chance that an expansive tack will be taken. Each new limit, however, could also give the Obama administration reason to argue against protections, something that seems increasingly likely in the current climate. For now, the debate over the scope of journalism will continue, and the bill has a ways to go: Schumer's version needs to pass the Senate floor, and a House version of the bill has yet to leave committee.