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Editorial: Justice Department's actions show need for media shield law

The screen on the phone console at the

The screen on the phone console at the reception desk at The Associated Press Washington bureau. (May 13, 2013) Credit: AP

The Obama administration has been extraordinarily busy proving how badly the nation needs a media shield law to protect the public's right to know what its government is up to.

The latest disappointing revelation of its aggressive threat to news gathering involved the Justice Department's 2009 pursuit of a search warrant to secretly root around in the personal email of Fox News chief Washington correspondent James Rosen. In a shocking affidavit revealed by The Washington Post last week, prosecutors investigating a leak of classified information at the time described the reporter as a "co-conspirator" after he reported that intelligence officials warned President Barack Obama about North Korea's plan to conduct another nuclear test.

Although Rosen was never charged, characterizing a reporter doing his job as a co-conspirator came dangerously close to criminalizing the constitutionally protected freedom to report the news.

The disclosure followed hard on the heels of the government's sweeping and secret seizure of Associated Press phone records that had ignited criticism and already resurrected interest in a national media shield law. Congress should pass one.

Rules requiring a judge's permission before snooping on the media should be put into law. The administration insists that's already its policy, but that's hard to believe these days. Enshrining that due process in law would help to ensure a proper balance between the public's interest in justice and national security, and its need to be informed about some things officials would prefer to keep quiet.

It's impossible to judge whether the proposed shield law would have changed the actions of prosecutors who subpoenaed records from 20 phones used by AP reporters and editors -- too little is known about that leak investigation. But the clamor the seizure ignited did prompt a call from the White House to Sen. Charles Schumer (D-N.Y.) suggesting the time might be right to reintroduce his shield bill. Obama made a personal pitch on Thursday for Congress to pass the bill his administration and the news industry negotiated in 2009. At that time, it stalled due to a furor over WikiLeaks' dissemination of classified documents, and it never made it to the Senate floor for a vote.

The bill would ensure journalists can make a legal challenge to a government demand for information they obtained under a promise of confidentiality, including the identity of a source. It would also require government officials to notify a media company, in advance in most cases, before gaining access to its phone records. The idea is to give a targeted news organization the chance to contest the subpoena in court. Notice could be delayed for up to 90 days, for instance if advance notice would compromise an investigation.

The shield law wouldn't provide blanket protection. It wouldn't allow journalists to withhold information that could prevent terrorism or harm to national security, identify a terrorist or prevent death, kidnapping or bodily harm -- although judges should require some proof of those assertions. In our nation's best traditions of balancing competing rights, it would let a federal court weigh the concerns of government against the need for a free flow of information so critical for a healthy democracy.