Saturday, October 13, 2007

House bill HR2102, an open attack on bloggers, reaches the House floor next week

H.R. 2102, the Free Flow of Information Act, a bill that I've written about before (here, here, and here) hits the House floor next week, after a brief stop in the Rules Committee.

As I wrote in late August, as submitted the bill would craft a fairly general federal journalist's shield law; as amended in the Judiciary Committee, it would restrict that shield to "professional" journalists only.

From Section 4 of H.R. 2102 as introduced -

(2) COVERED PERSON- The term `covered person' means a person engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

From Section 4 of H.R. 2102 as amended (emphasis mine) -

(2) COVERED PERSON- The term 'covered person' means a person who, for financial gain or livelihood, is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

The 'financial gain or livelihood' language clearly targets non-commercial journalists such as bloggers.

During the Judiciary Committee's deliberations on the amendment, the desire to craft a shield that couldn't be used by terrorists was cited as the justification for the restriction.

However, a couple of clauses in the amended version of the bill give lie to that rationalization, and point toward another motivation - protecting corporate media organizations from burgeoning competition from amateurs on the internet.

First, paragraph 2 of the amended definition of “covered persons” already specifically provides exceptions to the shield for foreign powers, agents of foreign powers, and designated terrorist organizations. As such, the financial gain language is unnecessary.

Second, clause C of paragraph 3 in section 2 of the amended bill overtly places the interests of commercial entities on par with the interests of public safety and national security.

Even in its current form, however, the bill is only a tepid, ineffectual one. A couple of propsed amendments submitted to the Rules Committee seek to turn the current weak bill into an abomination.

From the amendment proposed by Rep. Rick Boucher of Virginia -

Covered Person – The term "covered person" means a person who regularly gathers, prepares...for a substantial portion of the person's livelihood or for substantial financial gain...

It was thought by many, including some members of the Judiciary Committee, that the original amendment would still cover many bloggers because many (though not me!) derive a small income from advertisements on their websites. Adding "substantial" to the financial gain language is an open attempt to close that avenue to protection.

Additionally, the amendment submitted by Rep. Lamar Smith of Texas would lower the threshold of significance that the government would have to meet to compel disclosure of a source. It would lower the threshold so much that disclosure of the source would no longer have to be "critical" or "necessary" to the government's case, just "helpful" or "important."

In short, these amendments would render meaningless the shield crafted by the underlying bill.

Earlier this evening, I wrote a letter to Congressman Harry Mitchell expressing my concerns with the amended bill and the proposed further amendments. In addition, I urged him to try to restore the 'covered persons' definition to its broader original language and to fight the further amendments submitted by Boucher and Smith.

I now urge every blogger and everyone who cherishes true freedom of the press to contact their own Congressional representative, and to do so as soon as possible. The bill is before the Rules Committee on Monday at 5:00 p.m. EDT, and can reache the House floor shortly after that, possibly as soon as Tuesday.

A few other notes on the issue -

...When I called the Judiciary Committee staff in August asking for the specific language in the amendment, they repeatedly put me off, saying that it would be posted in THOMAS within a week or two.

The hearing was on the first of August; the amendment was posted in THOMAS on the 10th of October.

They also later told me that the bill was *not* amended in committee, that an amendment was only discussed and not approved. I thought then that the statement was a lie.

I now *know* it was a lie.

...There is a related bill in the Senate, S. 2035. It contains the original, broader, definition of "covered persons" that doesn't have the financial gain language.

However, in perhaps the least surprising move of the year, Arizona's anti-open government activist Senator Kyl is fighting it tooth-and-nail; don't hold your breath on that bill ever passing the Senate in anything resembling an effective form.

In summary, HR2102 is a weak bill that certain Republicans (what? You though Boucher and Smith were Democrats?!? LOL) are trying to water-down even more. Get the word out to other bloggers and interested folks -

Contact your Congresscritters!! Let them know that you think this bill is already too weak!

Thanks for reading this long post all the way through!



Josh said...

Hi, great post; I too have been following the shield law very closely, and was drawing similar conclusions about the bill as I read your commentary.

You probably know of my story a little bit, I'm the journalist and videoblogger who spent 7 months in a federal prison this past year because we don't have a federal shield law.

If the worst version of the proposed bills becomes law, I believe I would've have actually been in a worse legal situation than I already was.

I'm currently working on my own blog entry on CNET blog network. I'm glad to see you were finally able to get a copy of the revisions; I had searched for them all over the place back in August...

Is this still scheduled to be voted on Tomorrow (10/16)?


cpmaz said...

Note: I tried to reply to your comment on your blog, but there was some kind of problem with the anti-spam question - it asked for a "yes" or "no" and didn't recognize "yes".

The comment I would have left -

I write the blog where you just left a comment on the post I wrote about HR2102 (

According to "The Daily Leader" from Steny Hoyer's office, HR2102 *is* coming up for a vote Tuesday.

While it is probably too late for any changes to strengthen the bill, I did contact the office of my Congressman to ask that he fight the attempts to weaken an already weak bill by amendment.

I should have noted that the amendment already approved in committee doesn't just attack bloggers, it goes after student journalists, most of whom are years away from receiving financial gain for their efforts.

Anyway, I'm going to watch the debate on CSPAN with great interest.

Even though this shield law would be a weak one, if it actually covered all journalists, it would be a good start.

Good luck in your run for mayor; it's an uphill battle, but compared to what you've already dealt with, it may not be that tough a nut to crack for you.