Washington (CNN) – In the wake of the controversial decision by the Justice Department to subpoena phone records from the Associated Press in a probe of national security leaks, a top Democratic senator said Wednesday he wants to put in place stricter standards for government seizure of media records.
Sen. Chuck Schumer of New York wants to switch those sensitive decisions from the attorney general, who is currently empowered to issue subpoenas to news organizations, to a federal judge who is independent of the executive branch.
"As we have seen with the recent subpoena of the AP records, there is a real need for some statutory guidelines about what kind of information the government can get from media," Schumer said. "Right now there (are) virtually no guidelines, there's no supervision."
The White House said earlier Wednesday it had asked Schumer to reintroduce reporter shield legislation. Schumer said he was already planning to do so before he got that call.
The bill "requires an independent evaluation of the balancing test because there are two needs in society," Schumer said. "There's the need for the free press and the ability of the free press to find sources, confidential sources that can tell the press that they might not want to say publicly. At the same time, there's a need to prevent leaks particularly of classified information."
The bill had bipartisan support when it was first introduced in 2009 but never got a vote on the floor. Schumer said the AP controversy could be the impetus to get it passed.
If the law were in place now, would it have changed the AP subpoena?
Schumer said he did not know but that "everyone would have felt a lot better" if the decision was made by a judge instead of a Justice Department official.
Asked why the president wants the bill revived now, White House Press Secretary Jay Carney simply said Obama "thinks it's an appropriate time to work with the Senate–in this case Sen. Schumer–to reintroduce this legislation."
"The president's support for this kind of media shield law is well-documented, it is longstanding," Carney said, without specifically linking the renewed support to the AP phone calls.
Press freedom experts argue it's unclear if Schumer's shield law would ultimately have any effect on the Justice Department's ability to collect phone records from journalistic organizations in national security situations.
In the broadest sense, many organizations still had questions about whether the latest drafts of the shield law included an appropriate definition of who qualified as a "journalist," or under what circumstances a source could be protected when the government believed national security was at stake.
"The shield bill definitely covered records held by communications service providers, and required notice to both the target and the service provider, but it had the same exception on the notice requirement that Justice relied on here," said Gregg Leslie of Reporters Committee for Freedom of the Press, in an email. "Notice can be suspended if they can show a substantial threat to the integrity of an investigation."
It's possible that under Schumer's legislation, when the Justice Department ultimately notified the AP that it had acquired the organization's phone records, the department would have also been required to provide substantial evidence as to why it felt prior notification would have compromised an ongoing investigation. According to letters exchanged between the AP and Deputy Attorney General James Cole on Tuesday, the Justice Department still has not provided that justification.
The shield legislation would also require that a federal judge be involved in issuing any subpoena for communications records. Currently, the justification required for collecting records is outlined by internal Justice Department regulations, but it is not written in law.
"What you have here is if you codify this and make it law, you lose some of the grey area," said Gene Policinski, executive director of the Freedom Forum's First Amendment Center. But Policinski added that there would likely still be some way for the government to get around the law in cases of extreme national security.
"There's the eternal question in the event of an imminent terrorist threat if would there be time to go through these procedures or is there a safety valve," Policinski said. "There would be a tilt toward the government in terms of national security at some point."
Schumer paired up with former Democratic Sen. Arlen Specter in 2009 to put forth a revised version of the bill, then known as the Free Flow of Information Act.
In October 2009, Obama came under fire for weakening an earlier shield law proposal by modifying a safeguard that would force prosecutors to exhaust all other options before making a reporter testify in court. Under the administration's version at the time, reporters would not be protected if executive branch believed the source's information caused "significant" harm to national security.
While the Senate Judiciary Committee passed the bill in a 14-5 vote, the legislation never got a floor vote. At the beginning of 2010, the whistle-blower website WikiLeaks began publishing U.S. diplomatic cables and other classified information, amplifying tension between government and media.
– CNN's Ashley Killough contributed to this report.
so after the obama adminstration tramples all over the worlds largest news organization, now they want to blame it on the laws that allowed them to do it??? this is really getting comical.
Well, this is an interesting outcome from this non-scandal. (A non-scandal because what the AG did was currently and totally LEGAL, based on current law as formulated by the Patriot Act.). Watch the Republicans here: if they go along with Obama and Schumer on reinstituting the reporter shield, I'll eat my hat. Of course, the shield will prevent Holder from doing this again, which is what the GOPhers SAY they want, but expect a "hey wait a minute" moment from them.