Expanded surveillance protections for journalists proposed in Montana
The state already has a media shield law, but the new bill would close a major loophole which provides no protections for journalists who use the services of electronic communications providers. For example, while a court cannot make a reporter reveal his or her email correspondence with a source, it could request a journalist’s emails from a provider such as Google, Microsoft, or Yahoo.
— Kyle Schmauch (@KyleSchmauch) January 22, 2015
"Once it's on a Gmail server, it's not your information anymore," said state Rep. Daniel Zolnikov (R-Billings), the bill’s sponsor, to Courthouse News Service.
“Freedom of the press is one of the most crucial rights contained in the First Amendment. We’ve seen unprecedented attacks on the rights of the press in recent years at the federal level, but we can show our support for reporters at the state level.”
Montana’s shield law, known as the Media Confidentiality Act, says a news organization and its staff do not have to reveal the identity of the source of information obtained or prepared in the course of news gathering. “This is an absolute privilege, and the party seeking information may not overcome it under any circumstances,” the law reads.
Many states – like Florida, Illinois, and North Carolina – allow the party seeking information about sources to overcome the privilege by showing a pressing need for the information and its unavailability from other sources.
If Zolnikov’s bill is passed into law, Montana will become the first state in the nation to expressly prohibit the government from requesting privileged news information from third party communications providers.
— Mike Dennison (@mikedennison) January 23, 2015
The Montana Newspaper Association, which supported the original shield law, expressed support for Zolnikov’s bill.
“Montana has always been a leader in ensuring the rights of the people as served by reporters and the press,” said Jim Rickman, executive director of the MNA. “This bill preserves those rights and addresses an issue created by the increasing reliance on electronic communications.”
Recent court cases have brought to light the threats to journalists who protect their sources’ identities, as well as increasing intrusions of the government into reporters’ work. By way of Edward Snowden’s revelations about government surveillance, it was reported that the Justice Department obtained the phone records for 20 Associated Press reporters and editors for a two-month period over an investigation about a story on a foiled terrorist plot in Yemen.
James Risen, a journalist for The New York Times, also entered into a lengthy battle with the government when he declined to reveal the source who leaked information about a CIA plan to deliver faulty nuclear blueprints to Iran.
Constitutional rights under the Fourth Amendment protect journalists against unreasonable search and seizure, but there is no federal media shield law – despite recent efforts to introduce one. Currently, 49 states, plus Washington, DC, provide journalists with “reporter’s privilege” against revealing their sources. Wyoming is the only state that does not.