California expands journalist shield law, requires third-party subpoena notification

By Latara Appleby
Special to the Las Vegas Tribune

In response to the recent controversy about The Associated Press phone
records subpoena, California Gov. Jerry Brown signed a bill that would
expand the existing shield law for the state’s journalists.
Under the new law, which takes into effect Jan.1, officials are
required to notify journalists at least five days before they subpoena
third-party providers, such as telephone companies or cloud-based
servers, for their records. The bill gives journalists the opportunity
to challenge the subpoena in court or at least request the scope be
narrowed.
“California journalists, and the public, should be extremely troubled
by recent reports showing the federal government secretly collected
the phone records of The Associated Press,” said state Sen. Ted Lieu,
D-Torrance, in a previous statement about the bill. “It’s essential
for a free citizenry to have a free, unhindered press.”
The existing shield law requires that a journalist being subpoenaed in
a civil or criminal proceeding be given five days notice by the person
requesting the information. The new law expands that requirement so
that journalists will be notified, not only when they are subpoenaed
for their notes or testimony, but when third-party providers are
subpoenaed to hand over journalists’ records.
The new law requires the party issuing the subpoena to include in the
notice, at a minimum, an explanation of why the requested records will
be of material assistance to the case. The notice must also include
why other sources of the information were not sufficient.
In May, The Associated Press announced that the Justice Department
collected records for 20 phone lines used by editors and reporters,
most of whom were involved in a report about a CIA-thwarted terrorist
plot in Yemen that contradicted previous statements by the Obama
Administration denying such an attempt. Investigators did not notify
the wire service about the subpoena and only notified the AP’s
attorneys after the records were collected.
Days after the Association Press story broke, it also came to light
that the Justice Department said that there was “probable cause” to
consider Fox News reporter James Rosen a “co-conspirator” with State
Department employee Stephen Kim, who is accused of leaking secrets to
Rosen. That designation allowed the department to be free from the
limits on search warrants to the news media found in the Privacy
Protection Act, and allowed them to search his Gmail account.
Attorney General Eric Holder issued a report to President Obama this
summer regarding Justice Department guidelines that strengthened
protections for journalists and calls for more direct oversight by the
Attorney General himself when investigations of leakers involve
journalists’ constitutionally protected work materials.
Jim Ewert, general counsel of the California Newspaper Publishers
Association, explained that the language in the bill closely mirrors
the guidelines recently adopted by the Justice Department, saying that
they wanted to make it as consistent as they could.