SACRAMENTO (CBS / AP) — State agencies would be required to give journalists five days’ notice before they issue subpoenas to a third-party company for telephone records under legislation announced Thursday by a state senator.
Democratic state Sen. Ted Lieu, of Torrance, said he would seek the measure to give greater protection for newsgathering operations.
He acted after it was disclosed that the U.S. Department of Justice had retrieved the logs from 20 business and personal telephone lines of journalists employed by The Associated Press. Lieu and other critics said the threat of such surveillance impedes journalists’ ability to report the news, including their ability to gather information from government sources.
“It’s my belief that our constitutional democracy relies on freedom of the press,” Lieu said. “It’s the press that keeps government honest, and we chill freedom of the press at our peril.”
California has a strong shield law for journalists, which already requires that law enforcement agencies give five days’ notice to news organizations for subpoenas served on the newsgathering organization or the reporter. However, Lieu said the Justice Department probe shows that investigators can bypass the shield law by secretly subpoenaing third-parties — including Internet, telephone or communications companies — for journalists’ personal and work-related information.
“That exposes a glaring loophole in the shield law,” Lieu said.
His measure would be unlikely to stop federal agencies, which could still seek the records through federal courts. However, Lieu noted that there are two proposals in Congress to provide greater protections for journalists.
Adding the early warning requirement to California’s shield law would give journalists time to fight the subpoenas in court.
“It gives the newsgathering organization an opportunity to go before a neutral arbiter and have the law enforcement agency identify the compelling interest, and to ensure that the application for the subpoena is as narrow as possible,” said Jim Ewert, general counsel of the California Newspaper Publishers Association. “The advantage would be to prevent someone from circumventing the shield law in California in much the same way the Justice Department did with AP, by going to a third party.”
The association is sponsoring Lieu’s proposal.
Lieu plans to amend an existing unrelated bill, SB558, to include his proposed notice requirement. SB558 passed the Senate and is awaiting consideration in the Assembly.
U.S. Justice Department spokesman Dean Boyd said his agency would not comment on pending legislation.
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