Our View: Helping watchdogs watch for abuses

When Congress returns from vacation in September, after the major-party conventions, the Senate would do well to take up what sponsors call the Free Flow of Information Act, which most people term a federal shield law for journalists.

As the government has grown and become more secretive in the wake of the 9/11 terrorist attacks, it has become ever more important that journalists not be impeded in trying to uncover information of interest to citizens that government has no business keeping secret from the people it is pledged to serve.

A shield law simply provides that a reporter or other journalist who has promised confidentiality to a source cannot be required by a grand jury or a court to reveal sources, notebooks and other information. Some 31 states have shield laws, including California, but there is no shield law at the federal level. This is a significant deterrent to aggressive investigative reporting. Over the past four years more than 40 reporters have been threatened with contempt charges or jail time to protect their confidential sources, and a few have had to pay fines or serve time in jail, according to the American Society of Newspaper Editors.

Earlier this month, the FBI admitted that it had collected phone records of four reporters working in Indonesia for U.S. newspapers in ways that violated Justice Department policies. A shield law would be a deterrent to such investigative overreach.

To be sure, readers are best served when journalists use identified sources whenever possible, and the use of unidentified sources, especially in Washington, can be overdone. But confidential sources or whistle-blowers can be essential to uncovering scandals and abuse of power. Recent stories about conditions at Walter Reed Medical Center and financial shenanigans at Enron, for example, would probably never have been written without confidential sources.

When a journalist promises to protect the confidentiality of a source, it's important to be able to keep that promise. A journalist who "burns" a source, even if forced to do so by a court, is unlikely to get whistle-blowers to reveal information in the future. That would mean that many abuses of power would never be reported.

The House passed a limited federal shield law last fall by an overwhelming 398-21 vote. However, President Bush, citing national security concerns, has said he would veto such a bill, and the Senate has been reluctant to consider it unless it has a veto-proof majority. We urge Sen. Dianne Feinstein, who has expressed some concerns about a shield law in the context of the struggle against terrorism, to inform Majority Leader Harry Reid that she will be part of such a majority.

The bill the Senate would consider has been modified to address all the legitimate concerns about a shield law being misused. The shield would not apply if the information a journalist has could prevent an act of terrorism or other significant harm to national security, if a court acquiring that information could prevent death or bodily harm, or if a journalist is eyewitness to a crime. People on a terrorist watch list or who have cooperated with terrorist or criminal acts would not be eligible to use the shield.

Some have argued that shield laws create a special privilege for journalist that is not available to ordinary citizens, and this is a valid concern. However, a free press is vital to a functioning free society. The shield law does not confine the privilege to "official" journalists but applies to anyone who regularly gathers information with the intent of disseminating it to the public. So bloggers, pamphleteers and even ordinary citizens doing investigative work to uncover abuse or push reforms would appear to be protected.

A new administration will be in power come January. A shield law would help ensure that it receives proper scrutiny.