The Obama administration has bad instincts on press freedom and the public's right to know. But at least they backpedal well when taken to task by the public.
Attorney General Eric Holder Jr. proposed to President Barack Obama significant new restrictions on the Justice Department's seizure of journalists' phone records and emails in investigations of government leaks.
Holder's proposed policy changes are good; even better is the effort by Sens. Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C., to codify Holder's suggestions in law as part of their Free Flow of Information Act of 2013.
The policy changes were needed because of the administration's overly aggressive use of secret court orders to sweep up reporters' contacts with sources that the government suspects of leaking government secrets.
The Obama administration had even abandoned a long-standing policy of notifying a media outlet when the Justice Department was targeting its communications.
Revelations that the FBI had secretly seized phone records and emails from reporters at the Associated Press and Fox News ignited a backlash from journalists, Congress and the public, prompting Obama to ask Holder for a policy review.
Holder's policy revision would require prosecutors to give news organizations prior notice -- with rare exceptions -- before going after records of communications between reporters and sources. And the Justice Department could not use search warrants to seize a reporter's records unless the reporter is the target of a non-news gathering investigation.
That latter change is to rectify the intrusion upon the journalistic rights of Fox News reporter James Rosen, who in 2009 reported information that had come from inside North Korea's government. In trying to build a case against a former State Department employee who was suspected of leaking classified information, the FBI obtained a search warrant to seize Rosen's communications by claiming Rosen could be guilty of violating the Espionage Act by receiving the leaked information.
Such Justice Department actions have had a chilling effect on news sources, harming the public's right to know what its government is up to.
The proposed legislation is important because Holder's proposals are merely transitory executive-branch policies that could change on a whim. The Free Flow of Information Act is the latest attempt at a national shield law for journalists, giving news gatherers the legal protection they enjoy in California and most other states, but not yet from the federal government.
The senators' bill would give no absolute privilege to journalists, but would ensure that the government must argue before a court its need for the information. It also spells out where a journalist would have no privilege against disclosure; e.g., when the information would prevent or mitigate an act of terrorism or harm to national security, or prevent death, kidnap or bodily harm.
Congress should pass this national shield law for journalists in this term.