DOJ definition on Press Shield bill: "regular" bloggers = Press

I'll have more to say on this issue in future postings, especially about Judith Miller and how she was perceived by many of the people I knew and spoke to regularly in the Times' Washington bureau, as well as the professional media groups clumsy efforts in previous Congresses, whose lopsided hearings I often attended.
For today, though, I simply wanted to bring to your attention a nugget I noticed at the end of this important article, which has important ramifications for "regular" bloggers.
____________________________
http://www.nytimes.com/2007/09/26/washington/26shield.html?ref=washington

New York Times
September 26, 2007
Senate Panel to Consider Shield Bill for Reporters
By Adam Liptak

A bill that for the first time would give journalists limited protection from efforts to force them to reveal their sources in the federal courts will be taken up by the Senate Judiciary Committee on Thursday, and its sponsors said its prospects are good.
“It’s balanced, particularly when it comes to national security,” said Senator Charles E. Schumer, Democrat of New York, who is sponsoring the bill with Senator Arlen Specter, Republican of Pennsylvania. As a consequence, Mr. Schumer said, “this bill can pass.”

The bill is a compromise, with exceptions to the protection in cases of possible terror attacks or harm to national security. It gives reporters less protection than a bill approved by the House Judiciary Committee in August and an earlier measure sponsored by Senators Richard G. Lugar, Republican of Indiana, and Christopher J. Dodd, Democrat of Connecticut, which will also be addressed Thursday.
The new bill, like the earlier measures, has the support of scores of news organizations, including The New York Times. But some supporters are holding their noses.
“I’m not crazy about it,” said Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press. “There is no question that this is a huge compromise. But I’m also a realist.”
A Justice Department spokesman, Brian Roehrkasse, said the department had not yet taken a formal position on the new Senate bill. But he provided a series of letters setting out the department’s objections to the House bill that suggested the department would oppose the new measure as well.
In opposing the House bill, the department argued that new protections for journalists were unnecessary and could interfere with terrorism investigations and other cases.
According to the department, it has issued only 19 subpoenas to reporters seeking confidential source information since 1991, and only four since 2001. (The department excluded subpoenas issued by special prosecutors, saying it does not maintain those records.)
The protections proposed by the new legislation are weaker than those in almost all of the 49 states that shield journalists from state actions through statutes and judicial decisions. They are also weaker than the protections in the Justice Department’s own guidelines for issuing subpoenas to journalists.
For instance, the new bill applies only to information from confidential sources. Subpoenas seeking reporters’ notes and drafts, audio or video outtakes or testimony confirming published information are all allowed unless the information sought was obtained in exchange for a promise of confidentiality.
That means most federal subpoenas, which are largely for nonconfidential information, would not be affected.
The bill also provides no protection for information needed to prevent a death, kidnapping or substantial bodily harm, or for journalists who are the only available eyewitnesses to crimes and other unlawful conduct.
And it would allow subpoenas where a court finds that the information sought would help prevent a specific case of terrorism or “significant harm to national security that would outweigh the public interest in news-gathering and maintaining a free flow of information to the public.”
In other situations, the bill would require prosecutors, criminal defense lawyers and civil litigants to show that they had exhausted alternative ways to obtain the requested information, that the information sought was essential to the case and that the public interest in disclosure outweighed that in the maintaining the free flow of information.
That formula resembles the balancing called for by many state laws, though some states provide absolute protection where confidential sources are involved. But the formula also adds the element of balancing the public interest for and against disclosure, a standard proposed in a concurring opinion in the appeals court decision that sent Judith Miller, then a reporter for The New York Times, to jail for 85 days in 2005.
The bill addressed the vexing question of defining who is a journalist in the Internet era by combining a functional definition that would apply to anyone who collects and disseminates information of public interest, including bloggers, with the requirement that the activity be conducted on a regular basis.