Spies, Whistleblowers, and the Federal Shield Law

Julian Assange: Tinker, Tailor, Newsman, Spy?

The John-le-Carré-esque saga of Edward Snowden's run from the United States Government has sparked an interesting conversation on how to distinguish whistle-blowing from espionage. The fact that Snowden has been charged under the Espionage Act of 1917 certainly ought to give us pause.  After all, this is a law that was originally passed during the First World War, one that was used, among other things, to silence pacifists and other opponents of American intervention as well as political dissidents in the ensuing Red Scare of the 1920s. No doubt, then, an argument can be made that just like one person's freedom fighter is another's terrorist, so too can a whistleblower be reclassified as a spy depending on which side of a political argument you happen to find yourself on.


Historians of science and STS scholars have thought a lot about the important work that all manner of classification can do. From Foucault's early archeology of the human sciences to Hacking's foray into historical ontology and Starr and Bowker's book Sorting Things Out, we know that how we taxonomize or carve up the world has far-reaching implications for our epistemic, moral, political and indeed personal engagement with it. So it should come as no surprise that I'm an advocate of taking a second look at how our government goes about classifying its citizens as well as foreign nationals for the purpose of fighting an ill-defined but global war on terror.

Rather than address the question of Snowden's disputed status as a whistle-blower head-on, though, I wanted to tack in a slightly different direction and ask how our government classifies journalists.

As I suspect many of you know, the Obama administration has been especially enthusiastic in its use of the Espionage Act to prosecute leakers and whistleblowers. Snowden and Pfc. Bradley Manning are only the most well-publicized cases, and there have been several others, including Thomas Drake, John Kiriakou, and Stephen Jin-Woo Kim.

Stephen Kim presents an especially interesting case.  A Senior National Security Analyst at Lawrence Livermore National Laboratory, Kim was charged with espionage for allegedly disclosing North Korea's plans to test a nuclear bomb to the Fox News reporter James Rosen. As a result of his reporting, the US Department of Justice began monitoring Rosen's activities. Eventually, the DOJ even named Rosen as Kim's "criminal co-conspirator" to gain access to his personal email and phone records.

Only a few days before we learned the Obama Administration was eavesdropping on Rosen, the Guardian reported that phone records of twenty AP reporters had been seized by the Justice Department during 2012.

In its zeal to plug leaks, then, the Obama administration is not content to go after the leakers themselves. We now know of at least two cases in which they have also gone after journalists with whom the leakers communicated. These actions pose a serious threat to the journalistic profession's ability to execute its traditional watchdog function, providing the oversight that is necessary for citizens to make informed choices in a democratic society. As I have argued elsewhere in this blog, the only workable solution to the secrecy paradox (we want our government to keep certain things secret, but we also recognize that voters cannot make informed decisions without knowing what the government is doing in their name) is to safeguard the potential for leaks.

Now, it goes without saying that the journalistic profession's traditional status as a "fourth estate" is widely recognized, even within the government's ranks. This is why the Obama administration's decision to go after journalists to whom information has been leaked is such an incendiary topic of discussion.

In an effort to protect journalists from government eavesdropping and allow them to maintain the anonymity of their sources, the Pennsylvania Senator Arlen Specter introduced the Free Flow of Information Act in February of 2009. As its official language explains, the purpose of this bill is to "maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media."

As is usually the case, the wording is somewhat counterintuitive here. How on earth does compelling the disclosure of information promote the free flow of information? The answer lies in the phrase "providing conditions." The idea is that by stipulating exactly under which circumstances journalists can be compelled to turn over information about their anonymous sources, the act protects them in all other circumstances. As always, then, the devil is in the details.

(There is an interesting parallel here to the Freedom of Information Act, which is really a secrecy act. See this post for more on that argument.)

I should note that the Free Flow of Information Act, which is often referred to as a Federal Shield Law, has not yet been signed into law. Still, it is worth a slightly closer look for what it tells us about what our public officials think it means to be a journalists.

The proposed Shield Law states that unless certain well-defined conditions are met, "a Federal entity may not compel a covered person to comply with a subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information." This is to say that except under certain specified and extraordinary circumstances, the government cannot force journalists to turn over information about anonymous sources.

However, there is a major sticking point in the proposed bill; indeed, it is one reason this bill has not yet been signed into law. This is the question of who qualifies as a "covered person," i.e., to whom this law will apply. To take an extreme case, imagine a genuine Russian spy (again of the John-le-Carré variety) who has managed to infiltrate the State Department or some other important government or military agency. Now imagine they obtain some piece of information that is vital to the United States' national security. How is the spy going to pass this information on to the Russians? What you do not want is for the law to create a situation in which some compatriot of the spy could simply create a public website onto which the spy could upload sensitive information for everyone (including the Russians) to see. You would not want to give the KGB the ability to claim that it has an "investigative reporting" arm which is a legitimate journalistic endeavor and therefore legally exempt from US Government oversight.

That's obviously a far-fetched idea, but the point remains: any Federal Shield Law will require a taxonomy to distinguish legitimate journalists ("covered persons") from illegitimate usurpers and impostors. How does the law do this?

Interestingly enough, much of the debate over this bill has centered on exactly this question: who is and who is not going to be a covered person? The original draft introduced by Sen. Specter defined "covered persons" as "a person who is engaged in journalism" where the latter just means "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."

That's obviously a very broad definition, one that would allow almost anyone to qualify as a journalist. It is thus no surprise that as the bill was debated, the definition of "covered person" became increasingly restrictive. For example, an early amendment to the bill re-defined a "covered person" as anyone whose "primary intent" is to gather and disseminate news and information of public intent and who "has such intent at the inception of the newsgathering process."

But as my English professors in college never tired of pointing out, it is a very hard job to peer into someone's mind and discern their "primary intent." Hence, the bill's language has continued to evolve. For example, once the Senate Bill made its way into the House of Representatives, the Committee on the Judiciary released a report that shows further restrictions had been placed on what it means to be a journalist. Now a covered person was anyone "who, for a substantial portion of the person’s livelihood, or for substantial financial gain, is regularly engaged in journalism." That is, if the House Judiciary Committee has its way, the proposed Federal Shield Law would only apply to professional journalists, thus excluding volunteers, many freelancers, and most bloggers.

So what does that make someone like Julian Assange? Is he a journalist or is he a spy? It is a strange but perhaps not altogether surprising irony that according to the 2009 House Judiciary Committee, the answer to that question would depend on how Assange pays his bills!