[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]








       SHIELDING SOURCES: SAFEGUARDING THE PUBLIC'S RIGHT TO KNOW

=======================================================================

                             JOINT HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON HEALTHCARE,
                   BENEFITS, AND ADMINISTRATIVE RULES

                                AND THE

                            SUBCOMMITTEE ON
                       INTERGOVERNMENTAL AFFAIRS

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 24, 2018

                               __________

                           Serial No. 115-98

                               __________

Printed for the use of the Committee on Oversight and Government Reform





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              Committee on Oversight and Government Reform

                  Trey Gowdy, South Carolina, Chairman
John J. Duncan, Jr., Tennessee       Elijah E. Cummings, Maryland, 
Darrell E. Issa, California              Ranking Minority Member
Jim Jordan, Ohio                     Carolyn B. Maloney, New York
Mark Sanford, South Carolina         Eleanor Holmes Norton, District of 
Justin Amash, Michigan                   Columbia
Paul A. Gosar, Arizona               Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee          Stephen F. Lynch, Massachusetts
Virginia Foxx, North Carolina        Jim Cooper, Tennessee
Thomas Massie, Kentucky              Gerald E. Connolly, Virginia
Mark Meadows, North Carolina         Robin L. Kelly, Illinois
Ron DeSantis, Florida                Brenda L. Lawrence, Michigan
Dennis A. Ross, Florida              Bonnie Watson Coleman, New Jersey
Mark Walker, North Carolina          Raja Krishnamoorthi, Illinois
Rod Blum, Iowa                       Jamie Raskin, Maryland
Jody B. Hice, Georgia                Jimmy Gomez, Maryland
Steve Russell, Oklahoma              Peter Welch, Vermont
Glenn Grothman, Wisconsin            Matt Cartwright, Pennsylvania
Will Hurd, Texas                     Mark DeSaulnier, California
Gary J. Palmer, Alabama              Stacey E. Plaskett, Virgin Islands
James Comer, Kentucky                John P. Sarbanes, Maryland
Paul Mitchell, Michigan
Greg Gianforte, Montana
Michael Cloud, Texas

                     Sheria Clarke, Staff Director
                    William McKenna, General Counsel
      Sarah Vance, Healthcare, Benefits, and Administrative Rules 
                      Subcommittee Staff Director
                    Sharon Casey, Deputy Chief Clerk
                 David Rapallo, Minority Staff Director
     Subcommittee on Healthcare, Benefits, and Administrative Rules

                       Jim Jordan, Ohio, Chairman
Mark Walker, North Carolina, Vice    Raja Krishnamoorthi, Illinois, 
    Chair                                Ranking Minority Member
Darrell E. Issa, California          Jim Cooper, Tennessee
Mark Sanford, South Carolina         Eleanor Holmes Norton, District of 
Scott DesJarlais, Tennessee              Columbia
Mark Meadows, North Carolina         Robin L. Kelly, Illinois
Glenn Grothman, Wisconsin            Bonnie Watson Coleman, New Jersey
Paul Mitchell, Michigan              Stacey E. Plaskett, Virgin Islands
                                 ------                                

               Subcommittee on Intergovernmental Affairs

                     Gary Palmer, Alabama, Chairman
Glenn Grothman, Wisconsin, Vice      Jamie Raskin, Maryland, Ranking 
    Chair                                Minority Member
John J. Duncan, Jr., Tennessee       Mark DeSaulnier, California
Virginia Foxx, North Carolina        Matt Cartwright, Pennsylvania
Thomas Massie, Kentucky              Wm. Lacy Clay, Missouri
Mark Walker, North Carolina          Vacancy
Mark Sanford, South Carolina 
















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 24, 2018....................................     1

                               WITNESSES

Mr. Lee Levine, Senior Counsel, Ballad Spahr, LLP
    Oral Statement...............................................     7
    Written Statement............................................    10
Ms. Sharyl Attkisson, Investigative Correspondent, Full Measure
    Oral Statement...............................................    28
    Written Statement............................................    30
Mr. Rick Blum, Policy Director, Reporters' Committee for Freedom 
  of the Press
    Oral Statement...............................................    33
    Written Statement............................................    35

 
       SHIELDING SOURCES: SAFEGUARDING THE PUBLIC'S RIGHT TO KNOW

                              ----------                              


                         Tuesday, July 24, 2018

                  House of Representatives,
         Subcommittee on Health Care, Benefits and 
 Administrative Rules, joint with the Subcommittee 
                      on Intergovernmental Affairs,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 2:45 p.m., in 
Room 2154, Rayburn House Office Building, Hon. Jim Jordan 
[chairman of the subcommittee] presiding.
    Present: Representatives Jordan, Palmer, Walker, Grothman, 
Meadows, Krishnamoorthi, Raskin, DeSaulnier, and Norton.
    Mr. Jordan. The subcommittees will come to order. We 
welcome our guests today, we will introduce you here in a few 
minutes. You know how this works. You typically got to listen 
to politicians talk first. It is crazy the way we do things 
here.
    But we'll have some opening statements from the chairman of 
the respective subcommittees and the ranking members and we 
will get right to your testimony. We'll swear you in and then 
of course get to the questions on this important important 
subject matter that's been in the news of late.
    And this is an ongoing series of hearing we're doing on 
First Amendment liberties and protecting those first 
amendments, whether on college campuses, whether it's from the 
pulpit in some of our churches or whether it's now today about 
the freedom of the press. So again, we thank you for being here 
and we'll start with our opening statements
    When the--Jefferson once said when the people fear the 
government there is tyranny, when governments fear the people 
there is liberty. And I would like to kind of offer that as a 
context for evaluating this issue today as we move through it, 
this important hearing.
    Critical freedom of the press is pursuit of truth without 
government entanglements or intimidation, yet we have seen 
previous administrations wiretapping journalist phones and 
issuing subpoenas for the identity of their sources. For this 
reason we signed on to, my good friend professor Raskin's Free 
Flow of Information Act which limits the government in 
compelling a journalist to reveal his or her sources.
    Professor Raskin and I may not agree often, but we are both 
committed to reaffirming our First Amendment freedoms, 
especially the guarantee, government cannot intimidate or 
sensor the town crier, be it the chief contributor to The New 
York Times or a freelancer in the Fourth District of Ohio. But 
it should come as no surprise that advocate for government 
having the least consequential impact on American's lives, 
especially at the Federal level where politicized prosecutors 
are unaccountable to the electorate.
    The creation of the Federal shield law like H.R. 4382, is 
the reassurance for journalists and Americans alike that their 
government cannot stifle the flow of information. This 
legislation acts as a powerful antidote to government 
encroachment for placing a more stringent check on their 
investigative powers.
    And those that improperly release classified information 
that jeopardizes national security and public safety should of 
course be prosecuted, but we cannot look the other way while 
our government intimidates journalists and tries to get their 
confidential sources. We need to keep the focus on that issue.
    Yesterday committee staff were briefed by the Justice 
Department related to their internal policies for obtaining 
information from reporters, this was in response to a briefing 
request from Chairman Gowdy and fellow cosponsor of the Free 
Flow of Information Act, Congressman Meadows.
    I, along with members of the committee, on both sides of 
the aisle, aim to continue our Justice Department to live up to 
the ideals set forth in the First Amendment. And I want to 
thank Professor Raskin again for his leadership on such an 
important legislative effort. And I'm glad to be working 
together in a bipartisan manner on this piece of legislation.
    I will just further add, you think about what we witnessed 
in the last few years where you had the agency with the power 
and influence that it has over American's lives, the Internal 
Revenue Service systemically and for a sustained period of time 
target people for their political beliefs. And then you see 
what's taken place recently, what we've recently learned, at 
the Department of Justice and the FBI relative to the previous 
campaign and what was taken to the FISA court. This is serious.
    And then when you add to it what we saw just a couple 
months ago with the reporter from The New York Times who had 
everything grabbed by the government. This is a serious issue, 
that's why we have the discussion in the hearing today and it's 
why we have our witnesses and that's why I am pleased to be 
working with my colleagues in a bipartisan fashion. And with 
that I would yield to the gentleman from Maryland for his 
comments.
    Mr. Raskin. Mr. Chairman, thank you very much for your 
leadership on this crucial legislation and for calling this 
hearing today.
    My dad wrote shortly before his death in 2017 these words, 
democracy in its operating principle the rule of law require a 
ground to stand on and that ground is the truth. The Founders 
of American democracy were obsessed with giving the American 
people the means to acquire the truth. Madison said the people 
who need to be their own governors must arm themselves with the 
power that knowledge brings.
    Jefferson identified the central role of the press in 
preserving democracy. He said, the only security of all is in a 
free press so the First Amendment established a preferred place 
for freedom of the press since it established a preferred place 
for freedom of speech and freedom of religion.
    The Supreme Court has held that government can reasonably 
accommodate religious free exercise and worship, which is why 
Federal law can exempt Native American Indians using peyote for 
sacramental purposes when it bans it generally. It is why 
public schools can create exemptions for students and employees 
who observe religious holidays on official school days while 
not releasing other students and employees.
    These laws are not constitutionally necessary, but the 
courts have found them to be constitutionally permissible as a 
reasonable accommodation of religious liberty which occupies a 
high place in our pantheon of constitutional values.
    While the right of free press occupies a similarly exalted 
perch in our constitutional hierarchy. In theory, the specific 
command in the First Amendment that Congress will make no law 
of bridging the freedom of press was unnecessary, because press 
freedom already covered under freedom of speech. But the 
Framers insisted upon protecting the distinctive and 
indispensable role that the press plays as a free institution 
in our Democratic society.
    Not everyone can go to congressional hearings, not everyone 
can go to State and legislative sessions where city or county 
council meetings go late into the night, not everyone can 
travel into war zones in Iraq, or Afghanistan, or Vietnam to 
determine the realty and the meaning of our foreign policies.
    Not everyone can personally uncover torture at Abu Ghraib, 
or Guantanamo Bay, or obtain the Pentagon papers, or break the 
Watergate scandal, or determine how much oil leaked from the BP 
oil spill in the Gulf of Mexico. Or figure out what the 
President and President Putin talked about in their secret 
meeting in Helsinki. But as citizens we are all equally 
implicated by these events and we are all equally invested in 
ascertaining the truth of what is happening in our name as 
citizens. This is why we need professional journalists and 
newspapers to get the information for us.
    The First Amendment protects the free press, but that 
abstract guarantee means nothing if reporters cannot protect 
confidential sources and whistleblowers or if they have to live 
in fear of criminal prosecution and jail time. When reporters 
cannot do their jobs our ability to function as a reflective 
democracy suffers, the free press is not the enemy of the 
people, it is the people's best friend. And it is the enemy of 
tyrants everywhere.
    Jefferson said were it left to me to decide whether we 
should have a government without newspapers or newspapers 
without a government, he said I would not hesitate a moment to 
choose the latter.
    As in other times of sharp political division, like the 
period of the Alien and Sedition Acts of 1798 the press in 
America is under ferocious attack today. Reporters are berated 
and castigated daily. Journalists have been arrested, punched, 
attacked and even murdered, including in my home State of 
Maryland simply for doing their jobs.
    We cannot afford as a society that reporters attacked or 
intimidated or fearful. We cannot have them afraid that they 
will be thrown into jail just for doing their jobs. Congress 
must defend actively the free press and the American public's 
right to know what exactly the government is doing you in our 
name. It is time to pass a Federal shield law to protect the 
press whose work is essential to democracy.
    America favors shield laws to protect the media watchdogs. 
Only 49 States and the District of Columbia have passed shield 
laws or adopted some sort of reporter's privilege. What more 
evidence do we need that the American people want to see a free 
and aggressive press to expose corruption and safeguard the 
workings of democracy.
    Mr. Chairman you and I introduced the Free Flow of 
Information Act of 2017 last November after Attorney General 
Sessions, in testimony before the House Judiciary Committee, 
refused to commit not to jail journalists for doing their jobs. 
I approached you on the spot and asked you whether you would 
introduce this measure with me, and I will never forget your 
immediate and enthusiastic response. It has given me hope that 
we can indeed come together as citizens, and lovers of the 
Constitution across party lines to defend the basic 
institutions of our democracy.
    Throughout our history dozens of journalists have served or 
have been threatened with jail time for protecting their 
sources, one of these journalists I know quite well, Brian 
Karem who is one of my constituents and the current Montgomery 
County Sentinel executive editor. In 1990, and 1991, Brian went 
to jail four different times to protect confidential sources 
while working as a TV reporter. The last time he went to jail 
for nearly 2 weeks while the Supreme Court considered his case 
and was only spared a long sentence when his confidential 
source, once she had moved from Texas to California and no 
longer feared for her life, came forward and revealed her own 
identity.
    Confidential sources like this are essential not only in 
investigative journalism, whether these sources shed light on 
government abuse and corruption, as was the case with 
Watergate, the Pentagon Papers or the abuse of detainees at Abu 
Ghraib in Iraq, but also in routine news gathered and the daily 
reporting of local news stories that immediately and directly 
influenced the lives of our people.
    The Free Flow of Information Act is long overdue, but there 
could be no better time to pass it than now, a time of peril to 
the republic, a time of corruption when foreign governments our 
trying to subvert our elections and when the basic values of 
society are in danger.
    Mr. Chairman this exact same Federal shield legislation 
passed the House with overwhelming bipartisan support in 2007 
and the bill was championed by none other then Congressman, now 
Vice President Mike Pence. It provides covered reporters with 
the qualified privilege and contains exceptions for compelled 
disclosure resource. Whenever national security is threatened 
or when there is a threat of eminent bodily harm or death and 
in other discrete and limited situations. It would not cover 
reporters who are suspected of committing a crime themselves 
nor would it give reporters the right to interfere with law 
enforcement working to solve a crime.
    This is an area I think where we can all come together 
across party lines to defend the basic pillars of American 
democracy. I agree very strongly with Vice President Pence who 
said it's not a Democratic or Republican issue, it's an issue 
for all Americans. And I urge my colleagues to support it.
    Mr. Chairman, I yield back and I thank you again for your 
leadership.
    Mr. Jordan. You bet. It looks like we have got some 
students who are leaving. We want to thank you all for being 
here. Thank you so much.
    Mr. Raskin. It takes a professor to drive them out of the 
room.
    Mr. Jordan. It wasn't the professor, it was the nine pages 
in your speech. No, it was all good. It was all good
    The gentleman from Alabama, of the subcommittee chair is 
recognized.
    Mr. Palmer. Thank you, Mr. Chairman. An inform citizenry is 
the hallmark American representative democracy. And without the 
free flow of information, we fail to hold those in power 
accountable.
    At the core of American exceptionalism is the liberty 
granted to its people to scrutinize its own government as first 
witnessed by Thomas Paine in Common Sense. I want to thank 
Chairman Jordan for joining with the Intergovernmental Affairs 
subcommittee on holding this hearing today. Our subcommittees 
have held a series of First Amendment hearings examining how 
certain rights like the right to speak freely at college 
campuses must be protected and reaffirmed.
    The American press has the freedom report on matters of 
importance to the public without fear of recourse from the 
government. Yet over several administrations the Justice 
Department has wielded tactics like threatening subpoenas and 
even imprisonment in an attempt to compel journalists to reveal 
their confidential sources, while these tactics may be used in 
good faith, investigation of criminal matters, it does 
demonstrate why a Federal shield law is critical.
    The Supreme Court addressed the freedom of the press in a 
seminal 1970 case Branzburg v. Hayes, in this case the justice 
rights said Congress has freedom to determine whether a 
statutory newsman's privilege is necessary and desirable and 
the fashion standards and rules as narrow or broad as they 
deemed necessary.
    Meanwhile, in the absence of Federal shield law, States 
have rolled out their own. As chairman of the Intergovernmental 
Affairs subcommittee, I see the necessity of States detail laws 
and practices to fit the unique needs of their citizenry, but 
the emerging patchwork of State laws and Federal circuit Court 
have left journalists unsure of their protections from the 
Federal Government and sends a chilling effect throughout the 
press.
    A Federal shield law like H.R. 4382 will further empower 
journalists to pursue the truth and hold the government 
accountable. As Ranking Member Raskin pointed out, this is not 
the first time that a law like this has been introduced. It was 
introduced by then Representative Mike Pence, but also by Ted 
Poe, and now jointly by Chairman Jordan and Ranking Member 
Raskin.
    I want to thank my friend Chairman Jordan and my friend 
ranking member professor Raskin for their leadership in this 
effort. And I yield back.
    Mr. Jordan. I thank the gentleman. The gentleman from 
Illinois is recognized. I got to spend some time with you in 
Ohio over the 4th of July. Did a great job at the event with 
Doctors from an Indian American heritage.
    Mr. Krishnamoorthi is recognized.
    Mr. Krishnamoorthi. Thank you. Thank you, Mr. Chairman. 
Thank you, Chairman Palmer, thank you Ranking Member Raskin for 
your leadership on this issue and thank you to our witnesses 
for coming in today.
    A free and flourishing press is a cornerstone of our 
democracy. Our Founding Fathers understood the importance of an 
independent press and that's why they embedded this particular 
right within the First Amendment to the Constitution. A free 
press informs the public and holds leaders to account. I know 
because I get a lot of letters based on what was written in the 
newspaper about me and so I know firsthand that the free press 
holds us to account.
    In order for the press to truly be free however, reporters 
must be able to protect their sources, whether they are 
government whistleblowers or corporate insiders. This crucial 
ability to protect confidential sources has been eroding over 
the past several years. As our government has sought to crack 
down on leaks, more and more reporters have been pressured to 
reveal their sources. The current administration is no 
exception to that trend. In fact, last August Attorney General 
Sessions announced that the Department of Justice had tripled, 
had tripled the number of active leak investigations saying, 
and I quote, ``This culture of leaking must stop.'' There is no 
question that classified or other legally protected information 
must be properly handled. But our government should not 
prosecute the journalists who expose corporate and government 
wrongdoing with the information that whistleblowers bring them. 
Although almost all States have shield laws, they vary in scope 
and do not apply in Federal cases where courts have issued 
conflicting rulings. That is why a Federal shield bill is so 
important.
    Vice President Pence, as mentioned before, sponsored such a 
bill in 2007 which passed the House with broad bipartisan 
support. I'm glad that Representatives Raskin and Jordan have 
introduced a shield bill this Congress and I hope it will be 
given full consideration. But we have a lot of work do.
    In the world press freedom index the United States ranked 
itself at 45th in the world. According to Reporters Without 
Borders which compiles this particular index our President 
Trump has fostered further decline in journalists right to 
report. He has called the press, quote unquote, ``the enemy of 
the American people,'' and labeled unfavorable coverage, quote 
unquote ``fake news.'' He has also called for revoking 
broadcasting licenses of certain mainstream news outlets. 
President Trump has expressed hostility to a free press, but 
undermining legitimate journalism is dangerous. It makes us 
less informed and erodes our trust in government. It wears away 
the fabric of our society. That is why I'm glad we are holding 
this hearing. We must work together on a bipartisan basis to 
strengthen our commitment to a robust free press.
    Thank you, Mr. Chairman.
    Mr. Jordan. I thank the gentleman. I am now pleased to 
introduce our witnesses. We have first Mr. Lee Levine, senior 
counsel at Ballard Spahr, and secondly we have Ms. Sharyl 
Attkisson, investigative correspondent and host of Full 
Measure, someone who's story I'm familiar with, what Ms. 
Attkisson went through. And I'm sure you're going to tell us 
about that, it's simply unbelievable. And then of course we 
have Mr. Rick Blum, policy director of the Reporters' Committee 
for Freedom of the Press.
    Welcome to all of you. What we normally do in this 
committee is we swear you in. So if you will please stand up 
and raise your right-hand.
    Do you solemnly swear or affirm the testimony you are about 
to give is the truth, the whole truth and nothing but the truth 
so help you God?
    Let the record show each witness answered in the 
affirmative. And we're going to move right down the aisle. Mr. 
Levine you go first and then Sharyl and then Mr. Blum.

                       WITNESS STATEMENTS

                    STATEMENT OF LEE LEVINE

    Mr. Levine. Thank you, Mr. Chairman and members of the 
subcommittees.
    I last appeared before a committee of this House 11 years 
ago. The topic was the Free Flow of Information Act of 2007, 
which has been mentioned was cosponsored by now Vice President 
Mike Pence. It passed this chamber with overwhelming bipartisan 
support, but never received a vote in the Senate. My message to 
you today is a simple one, the time has come to enact just such 
legislation codifying a reporter's privilege in the Federal 
courts.
    You should do so based on the unassailable historical fact 
that confidential sources are often essential to the press's 
ability to inform the American people about matters of vital 
public concern. While there is, as there should be, healthy 
ongoing debate within with the journalism profession about the 
appropriate use of confidential sources. All sides of that 
debate agree that they are at times essential to effective news 
reporting.
    As then Congressman Pence testified before the House 
Judiciary Committee in 2007 and I quote, ``compelling reporters 
to testify and in particular compelling them to reveal the 
identity of their confidential sources is a detriment to the 
public interest.''
    Indeed for almost 3 decades following the Supreme Court's 
1972 decision in Branzburg v. Hayes, subpoenas issued by 
Federal court seeing disclosure of journalist's confidential 
sources were rare. Since that time however, the situation has 
changed dramatically. In the last 15 years, a period that spans 
three separate Presidential administrations, a substantial 
number of subpoenas seeking the identities of confidential 
sources have been issued by Federal courts to a variety of 
media organizations, the journalists they employ and the third 
parties that provide them with telephone and email services.
    In my 2007 testimony, I described in some detail the 
significant increase in the number of such subpoenas in the 
immediately preceding years. Unfortunately, since that 
testimony the drum beat has continued unabated. In 2008 for 
example the Department of Justice issued the first of what 
became multiple grand jury and trial subpoenas to Pulitzer 
Prize winning journalist James Risen, seeking to compel his 
testimony in the criminal prosecution of former CIA employee 
Jeffrey Sterling.
    Two separate Presidential administrations pursued Mr. 
Risen's testimony over a period of 5 years. Ultimately, the 
United States Court of Appeals held that there is no reporters 
privilege in criminal cases in the Federal courts of fourth 
circuit and that Mr. Risen was therefore obliged to testify.
    Significantly following the fourth circuit's ruling and Mr. 
Risen's ongoing refusal to betray his promises to his sources, 
the Justice Department decided not to call him to testify at 
Mr. Sterling's trial. Nevertheless, even without Mr. Risen's 
testimony, Mr. Sterling was convicted. Which makes you question 
how necessary Mr. Risen's testimony was in the first place.
    In 2013 the Justice Department seized 2 months worth of 
phone records connected to more than 20 telephone lines in the 
Associated Press' offices and journalists, including their home 
phones and their cell phones. It did so not by seeking such 
information directly from the AP or the journalists involved, 
but rather by issuing without their knowledge subpoenas to 
their telephone service providers. That same year in the course 
of a criminal investigation of alleged leaks involving North 
Korea the Department secured warrants authorizing prosecutors 
to monitor the phone calls and emails of Fox News correspondent 
James Rosen, again without his knowledge.
    The public outcry that resulted from the AP subpoena and 
the Rosen search warrant prompted the Department to revise 
substantially its internal guidelines governing the use of such 
compulsory process. Nevertheless, the practices apparently 
continued, despite the change in the administrations in the 
interim.
    Earlier this year the Justice Department revealed that it 
had secretly procured years worth of phone and evil mail 
records of New York times reporter. It remains unclear whether 
the Department complied with its own guidelines when it did so, 
although that is largely an academic question since most courts 
have held that the guidelines are not judicially enforceable in 
any event.
    Things were not always this way. In the almost 3 decades 
immediately following the Supreme Court's decision in 
Branzburg, both the Federal courts and DOJ largely construed 
that precedent to provide to journalists a privilege grounded 
either in First Amendment or in Federal common law that 
protected them in most Federal court proceedings, civil and 
criminal. In recent years however, that judicial consensus has 
broken down.
    As I've noted, Mr. Risen was authoritatively informed by 
the fourth circuit that he had no lawful ability to protect the 
identities of his confidential sources in response to a 
subpoena issued by a Federal court sitting in Virginia. But if 
that same subpoena had been issue by a Federal court in 
Delaware, less than 120 miles to the north, he would have 
enjoyed a privilege grounded in Federal common law as construed 
by the third circuit. And if the subpoena had been issued by a 
Federal court in Georgia, some 300 miles to the south, he would 
have been protected by a First Amendment base privilege 
recognized in the 11th circuit.
    Make no mistake, the drum beat of subpoenas, coupled with 
the lack of clear guidance concerning the recognition and scope 
of a reporter's privilege in the Federal courts has impaired 
the ability of the American people to receive information about 
the operations of their government and the state of world in 
which we live.
    I respectfully submit that the time has long since time for 
congressional action. Thank you.
    [Prepared statement of Mr. Levine follows:] 
    
    
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    Mr. Jordan. Thank you, Mr. Levine, that was good, good 
history. We appreciate that.
    Ms. Attkisson, you're recognized for your 5 minutes.


                 STATEMENT OF SHARYL ATTKISSON

    Ms. Attkisson. Thank you. Thank you for inviting me. I 
remember a few years ago reporting on a story at CBS news and I 
always asked our lawyers there to vet my stories for fairness 
and legality. And on this particular day, I was going over some 
documents with them, provided by an inside source exposed 
corporate wrongdoing. I had vetted the documents and gotten 
other sources to appear on camera for a story.
    The attorneys wanted to know if we're challenged in court 
on this story, can we disclose the insider's name? I said, no. 
He would lose his job. It would ruin him. Why? They explained 
that the law had been changing and it was not to the benefit of 
journalists or our sources. They told me that we can no longer 
guarantee protection of the identity of our sensitive sources 
if challenged in court by say the company we were doing the 
story about. You'd have to give up the name my lawyers told me. 
Or else what? I said. You'd probably go to prison. That made 
getting truthful information that is in the public's interest 
that much harder. I could no longer promise people who were 
willing to expose corporate or government wrongdoing that I 
could protect their identities at all costs.
    Obviously, I'm just one reporter, but you can multiply my 
experience by so many others. Here are just a couple of 
examples of stories I covered over the years that might not get 
told today because sources feel threatened.
    My investigation into fraud inside the Red Cross after all 
the 9/11 donations, which was recognized with an Investigative 
Emmy award, was possible only with assistance from inside 
sources who provided me with audits and information. Stories 
exposing wrongdoing with Ford and Firestone and covering up 
long known deadly tire dangers, another Emmy nominated 
investigation might have gone untold. Same with my 
investigations into Enron, Halliburton, prescription drugs and 
countless others, stories that arguably let to lives saved and 
taxpayer money saved.
    It was with help from inside intelligence sources that I 
broke the story at CBS of the Chinese stealing our most 
sensitive nuclear secrets. I was also able to break the news 
that the FBI lied about evidence in that case against their 
suspect Wen Ho Lee. They claimed he had failed a lie detector 
test when I was able to get the polygraph and show that he had 
actually passed with flying colors.
    Without the ability to protect confidential sources, I 
probably wouldn't have been able to report that the CDC was 
alarming our Nation with a swine flu epidemic, but the vast 
majority of cases blamed on swine flu were not swine flu or any 
sort of flu at all. And I wouldn't have been able to break the 
stories about how BP and the government provided false 
information about how much oil was really leaking into the 
ocean after the BP oil spill.
    In the past decade we've see the government attack sources 
with a zeal that should be applied to those committing the 
wrongdoing exposed. Instead, the wrongdoers are often 
protected. In some cases, they are the ones prosecuting the 
whistleblowers.
    The greatest offense a government insider can commit today 
is not for example improperly unmasking names of U.S. citizens 
for political purposes. It is providing information of 
wrongdoing to a journalist. Someone could go to jail over the 
so-called leak, but not the actual wrongdoing exposed. And 
sadly, we now have ample evidence that bad actors in government 
will go to shocking extremes, violating constitutional rights 
and possibly laws to hunt down our sources.
    In my case, I'm still litigating against the FBI and others 
connected to the intel community for their intrusions into my 
computers when I was at CBS news. The honest intel connected 
sources who helped me discover this include former FBI unit 
chief. The actions of the computer intruders, which we can 
trace forensically, imply that they were desperate to learn who 
my sources are and what I might be about to report. Talk about 
chilling. After that information became public, everyone one 
from intelligence community sources to corporate whistleblowers 
have told me that they hesitate to communicate with me because 
they believe I'm being monitored.
    And nothing has happened to the computer intruders to this 
day. Instead, the Justice Department simply uses unlimited 
taxpayer money to fight my case in court. And the big picture I 
can't help but see this is part of a growing and organized 
effort to control a free press. I'm concerned about new 
movements to force schools to teach media literacy and to 
invite third parties to curate our information and determine 
what's fakes news and what's true.
    My research shows that these efforts are often the opposite 
of what they seem. The forces behind them may be trying to 
actually shape public opinion by preventing us from seeing 
certain facts and views. If these trends weren't effected in 
the past, we might not know that cigarettes are bad for you. 
The whistleblower wouldn't talk, the studies would be varied by 
algorithms at Google and Facebook because curators and media 
literacy experts would declare the research to be 
conspiratorial. They'd point to settled science to prove 
cigarettes are perfectly safe, maybe even good for you. News 
outlets and reporters daring the pierce the narrative would be 
controversialized, bullied on social media and forced out of 
their jobs.
    Make no mistake the ongoing government and corporate 
crackdown on whistleblowers and journalists who report their 
stories is a war. Our truthful information threatens the 
persistent bureaucracy and powers that be like nothing else and 
they are increasingly desperate to control information and 
narratives. We can only guess what important stories in the 
public interest will never be told because of a less free 
press.
    [Prepared statement of Ms. Attkisson follows:]

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    Mr. Jordan. Thank you. Very good as well.


                     STATEMENT OF RICK BLUM

    Mr. Blum. Thank you, Mr. Chairman. Thank you, Chairman 
Jordan, Chairman Palmer, Ranking Member Krishnamoorthi and 
Ranking Member Raskin, thank you for holding the hearing and 
for the opportunity to testify today. And thank you as well to 
you for your leadership on the issue, especially the 
constituents of Mr. Raskin, I appreciate you working on this.
    Today I am testifying in my capacity as policy director for 
the Reporters' Committee for Freedom of the Press which has 
existed for almost 5 decades and subpoenas is something that 
we've been working on for a very long time. And on behalf of 
News Media for Open Government, a coalition of news media 
associations.
    I want to highlight three points. First, confidential 
sources are vital to keeping citizens informed about our 
communities as well as about national stories that impact us 
and our lives and I will mention a few examples.
    Second conflicts continue as Mr. Levine mentioned over 
subpoenas and other demands for information obtained during the 
news gathering process, including the identities of sources.
    And third, the Free Flow of Information Act is a 
commonsense approach that sets that clear legal standards 
recognizing that the need to protect sources can coexist with 
the government's responsibility to protect human life and 
enforce the law. And as you've heard confidential sources are 
essential to an informed public and accountable government.
    Journalists prefer to attach identities to their sources 
and a story. There are times however when to bring a story to 
the public, sources must be protected, even though in many 
cases the source's identity is known to the reporter. When 
checked with multiple sources, authenticated and vetted for 
accuracy. Information for unnamed sources has been critical for 
journalists to keep the public informed about problems facing 
veterans, who are trying to obtain medical care, police 
misconduct, investigations into suspected fraud and the policy 
choices facing Presidents in the face of global challenges. 
Coverage of the current administration is no different in that 
respect.
    Many subpoenas and other demands for journalists' notes and 
sources relate to news gathering on topics that have nothing do 
with national security. An unnamed source is critical to get 
getting to the truth about the 2014 shooting of Laquan McDonald 
in Chicago. One reporter, Jamie Kalvan, used a confidential 
source, a witness, to corroborate that the official police 
accounting of the shooting did not match what the autopsy 
showed. His reporting led to an investigation into the police 
officer's conduct, the release of a video of the shooting, a 
murder charge against one of the police officers in an effort 
to compel Mr. Kalvan's testimony to identify his source. Kalvan 
benefitted from legal and institutional support, including from 
my attorney colleagues at the reporter's committee which 
enabled him to successfully fight to quash the subpoena. He was 
fortunate.
    In another now infamous example, the startup company 
Theranos gained widespread attention for its claims of a 
breakthrough in testing blood using only a few drops of blood 
at a fraction of the cost of traditional methods. When 
reporters dug into the story, they discovered sources who knew 
the company could not back up its claims with scientific 
evidence. That reporting unraveled the story and led to fraud 
changes against the company's founder.
    No topic of news coverage is immune to demands for 
journalist sources and material. From my witness observation of 
an execution in Alabama, to interviews with individuals who 
occupied a Federal wildlife refuge in Oregon a few years ago, 
and I'll add an investigation into steroid use in baseball.
    A Federal shield law wide would protect a wide range of 
news coverage. The Free Flow of Information Act provides a 
qualified, as you've heard, but not absolute privilege that 
sets strong standards for courts to follow when deciding 
whether to compel a journalist to reveal his source.
    In media--so I want to make one other point, media lawyers 
I have spoken with tell me that, in the 49 States that 
recognize a journalist's source privilege, something 
interesting happens. Even the existence of the shield law goes 
a long way to avoid have unnecessary litigation.
    So to conclude, Chairman Jordan and Chairman Palmer, 
enacting the Free Flow of Information Act would strengthen the 
independence for the press and the sources upon which the 
public relies to be fully informed on a daily basis.
    Thank you for the chance to testify and I look forward to 
your questions.
    [Prepared statement of Mr. Blum follows:]

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    Mr. Jordan. You bet.
    The gentleman from Alabama is recognized for 5 minutes of 
questioning.
    Mr. Palmer. Thank you, Mr. Chairman.
    Mr. Levine, what does it mean for journalists to have 
qualified privileges?
    Mr. Levine. Well, there are two important words there, one 
is qualified and one is privilege. Privilege means that at 
least presumptively they will not have to disclose the identity 
of their confidential sources or published information that 
they chose for journalistic reasons not to publish in response 
to compulsory process like a subpoena.
    The qualified part means that that is not absolute. So that 
this bill and I think most reasonable people recognize that 
there have to be narrowly drawn exceptions to that, like--are 
set forth in this bill with respect to terrorism or eminent 
threats to national security. I think one of the geniuses of 
this bill is that it really does articulate very well those 
limited exceptions and articulates how limited they are and 
need to be.
    Mr. Palmer. Well, I thank you for that answer, because it 
lead into what I was going to come to next, because a lot of 
people are going to be concerned about whether or not we go to 
such great lengths to protect the confidentiality between a 
journalist and their source, even to the extent that we might 
not get information to defend us against an attack or that 
might compromise our national security. But even with a law 
that we have here or the bill that we have here, that's not an 
issue. Would you agree with that?
    Mr. Levine. I do agree with that. And in fact, the 
exceptions to the application of the privilege, that is the 
issue--the instances in which the qualified privilege would 
yield are taken almost verbatim from the Department of 
Justice's own guidelines, as the Department has itself 
purported to govern itself by over the last 40, 50 years. The 
only difference here is that the decisions the Department's 
made will now be reviewable a court instead of being undertaken 
in their unbridled discretion.
    Mr. Palmer. Ms. Attkisson, you have broken--you've been 
involved in some major stories Fast and Furious, Benghazi. 
Obviously, your ability to report on those, to conduct your own 
investigations have been greatly enhanced by being able to 
protect confidential sources. But in your testimony, you said 
that your activities were being monitored. Am I correct? Is 
that how you said that?
    Ms. Attkisson. Yes.
    Mr. Palmer. Okay. Can you elaborate on that, you know, how 
you were being monitored, you believe you were being wiretapped 
or that there were other intrusive methods that were being 
utilized?
    Ms. Attkisson. According to our forensics reports.
    Mr. Palmer. Would you hit your mic, please.
    Ms. Attkisson. According to our forensics reports and we 
have four separate independent reports that give similar pieces 
of the puzzle. There was a long-term effort to monitor my 
computers and phone devices, both my personal computers and my 
CBS computers.
    Mr. Palmer. So how would they monitor them without a 
warrant?
    Ms. Attkisson. Well, we don't know that they didn't have a 
warrant, although I have two sources tell me that there was no 
FISA warrant. So the way I'm told that sometimes works they 
identify someone in the orbit of the person they want to watch 
and then they capture you on incidental surveillance, meaning 
they pretend it was sort of an accident, and then they kind of 
reverse engineer it so they can actually get the information 
from the person who was really target that they didn't think 
they can get a warrant from.
    So as we've conducted our investigations forensically, 
there have been a lot of questions about who I might have 
contacted in foreign countries which would create a pretext or 
a pretense to make it look as though someone needed to be 
watched on that end, which would then sweep up my 
communications as well.
    Mr. Palmer. All right. I just wondered if you had filed a 
Freedom of Information Act request on that to try to determine 
the extent of the intrusive----
    Ms. Attkisson. Yes, sir. The FBI has repeatedly denied my 
Freedom of Information Act request or not fulfilled them 
properly claiming they do not have information they provably do 
have. And there's, as you may know from your previous FOIA 
work, very little that can be done about that.
    Mr. Palmer. Mr. Blum, I don't want you to feel left out in 
the questions from the gentleman from Alabama, one of things 
I'm looking at are all of States that have basically a 
patchwork of laws that cover this. And one of things that I was 
wondering about is you can be in one State and be covered, and 
be in another State and not be covered, you might be an out-of-
state journalists and not be covered by any State law. Can you 
elaborate on that, please?
    Mr. Blum. Well I think as Mr. Levine mentioned, depending 
on which court you're fighting the subpoena you may get a 
different result. We also have the First Amendment, but at the 
current state of affairs you may be in Alabama and you may be 
able to successfully fight a request for a murder suspect to 
want to interview you about the kind of interviews you've done. 
The problem with that is you are also going to be cross 
examined, so a reporter doesn't want to be put in a position of 
providing all their notes, but it is true that it is very much 
a patchwork.
    Mr. Palmer. I generally am not for extending Federal power. 
But I think this when it comes to constitutional issues and I 
really think this is an area where the Federal Government does 
have a legitimate need to intervene. And again, I want to thank 
Ranking Member Raskin and Chairman Jordan for their work on 
this. I think this is important work.
    And with that, Mr. Chairman, I yield back.
    Mr. Jordan. I thank the gentleman. The gentleman from 
Maryland is recognized.
    Mr. Raskin. Thank you, Mr. Chairman and thanks to Chairman 
Palmer for his excellent questions there. So I just want to ask 
some questions to help illuminate exactly what our bill is 
going to do.
    Mr. Levine, let me start with you. If we adopt a press 
shield bill like this, and the reporter were walking down the 
street and saw a crime, would they owe the sovereign their 
testimony or would they be able to get out of it because of the 
reporter shield bill?
    Ms. Levine. There is a provision in the bill that deals 
with eyewitness observations of criminal conduct differently 
than the normal source reporter relationship.
    Mr. Raskin. Okay.
    Ms. Levine. There are still some hoops to jump through but 
as a rule a request for testimony of eyewitness observation of 
a crime other than a crime that would be committed by giving 
information to a journalist.
    Mr. Raskin. Exactly. But the point is that as long as they 
are not operating in their professional capacity as a 
journalist, they would be able to testify about criminal 
activity they witnessed like everybody else and would be 
required to.
    Ms. Levine. That's true too, because the definition of a 
covered person only applies to people who are engaged in the 
process of doing their jobs as----
    Mr. Raskin. Okay. Ms. Attkisson, let me get to you. A lot 
of people seem to think that investigative journalism only 
rarely depends on anonymous sources and it's only investigative 
journalism, it's not other types. And I wonder if you could 
shed some light on this for us. How important are confidential 
sources to the work of journalists?
    Ms. Attkisson. Yes, sir. In my case and I've done both 
kinds of reporting extensively, even when we are not using in a 
finished story anonymous sources are confidential sources, they 
are often the genesis of the story. We may find other people on 
the record to confirm, and be the voices, and the face of a 
story after somebody who is confidential flagged us to the 
story or maybe flagged us to some original information.
    So in my experience in both kinds of reportings it is 
absolutely critical to be able to speak to people and have them 
believe that they are not going to be--their identity is not 
going to be revealed.
    Mr. Raskin. Great. Mr. Blum, let me come to you. Is there 
anything illegitimate about people speaking on and off the 
record or a deep background basis for reporters. I confess, I 
think I've done that myself certainly as a State Senator, I 
don't know if I've ever done it in Congress. Is anonymous 
speech protected under our constitution?
    Mr. Blum. Anonymous speech is protected and often times 
there is great utility in having a conversation with a source 
about, because they can give you some background--they can give 
you--here's what's really happening, you know, you may not--I 
don't want my name attached to it because if it gets out, then 
I'm going to get in trouble with my supervisor, but you learn a 
lot of detail that you wouldn't otherwise know about what's 
really happening.
    It is also very useful for journalists, if they have a 
story they are going to go to an agency. This happened with 
national security stories, to say here is he a story, here's 
what we have. Let us know, we'd like to see if you have any 
national security concerns about reporting and they might 
change a word, they might delay the story for a day, but there 
are those conversations and it is important that they be done.
    Mr. Raskin. Great. All of us grow up with the wisdom of the 
Founding Fathers about the importance of the press as a 
watchdog and the importance of the sunlight that the media 
brings as a disinfectant to potential corruption in government. 
But beyond those things that we learn in school, I wonder if 
any of you or all of you would care to share a contemporary 
example of a place where you think the press has played a 
really important role and confidential sources have been 
critical to the ability of the press to inform the public of 
something that it needs to know about.
    Ms. Attkisson. I gave quite a few examples, including the 
BP oil spill, I don't know if that's contemporary anymore.
    Mr. Raskin. Yeah. But, well what exactly happened in that 
one?
    Ms. Attkisson. Well, when I was asked to cover that story 
for CBS news, it was several weeks into it the story and there 
had not been a lot of news under us, so they felt that I needed 
to dig into that. And one of first things I asked was where was 
the video, because I realized intuitively there was probably a 
video, an undersea camera.
    And with the help actually of Senator Markey and actually 
then Representative Markey and Senator Nelson and another 
Senator whose name I can't remember, we worked together with 
FOIA and pressure to get the government who had these tapes but 
didn't want to release them to release them. But it was only 
from the help from some inside sources connected to the 
government that I was able to with some precision report that 
the flow as reported by the government and its experts and by 
BP was false by a factor that was incredibly wildly wrong.
    Mr. Raskin. They underestimated? Or understated?
    Ms. Attkisson. By far, by far. And I couldn't have had the 
confidence to report that. I did have on-camera sources that do 
that sort of thing that did confirm it, but I couldn't have 
reported that story. And that was a major story. Ultimately I 
believe that was part of the criminal fraud conviction against 
BP was then misleading the public on the size of the spill and 
the flow.
    Mr. Raskin. Thank you. I yield back, Mr. Chairman.
    Mr. Jordan. I thank the gentleman. The gentleman from North 
Carolina, Mr. Meadows is recognized.
    Mr. Meadows. Thank you, Mr. Chairman. And I want to thank 
both of you for working in a bipartisan way on this particular 
piece of legislation. And my recommendation is is that we get 
together in a bipartisan way and use a little leverage to make 
sure that it gets a vote on the floor of the House. And so I'm 
sure there are a few critical pieces of legislation. If you Mr. 
Jordan and you Mr. Raskin are willing to join forces, I think 
we can probably----
    Mr. Jordan. I'm always willing to join forces with the 
gentleman from North Carolina.
    Mr. Meadows. I thank the gentleman.
    Ms. Attkisson, let me come to you because I'm troubled. 
What you're saying is the FBI or DOJ or some entity actually 
surveilled your computer records and phone records, but 
specifically your computer records, and you had that 
forensically looked into and they with a high degree of 
confidence suggested there had been intrusion. Is that correct?
    Ms. Attkisson. Yes, sir. There is no doubt about that from 
what the forensics people say who know a lot more about this 
than I do and have worked in the intelligence agencies in some 
in some cases. There is an actual fingerprint on the software 
that is used for this that they recognize themselves or that 
can be recognized. It is very unique, it is a government 
proprietary software.
    And not only that, they didn't just look at my computer 
records, according to forensics, they planted three classified 
documents in my computer, they had a keystroke monitoring 
program in there. They used Skype which was on my computer to 
secretly activate it to exfiltrate files and listen in on 
audio. People probably don't know that Skype--actually, I 
didn't know Skype could be used for that. So there are a lt of 
techniques they use and that they can use and access remotely 
to do this sort of thing.
    And I don't believe I was unique in terms of the only 
journalist this happened to. I was just one who found out about 
it because I had Intel sources.
    Mr. Meadows. So how has that affected your reporting since 
that time. Since you found that out do you take different 
precautions? Do you not report on certain things? How has that 
affected you?
    Ms. Attkisson. It's definitely affected some of the stories 
I get. I can tell you I've had a Senator who wouldn't answer is 
direct question to me on the phone after that and I was asking 
him why and he said, Sharyl, your phone is bugged. You know, 
people once they've heard that, they are less likely to talk to 
me about sensitive topics, as well as sources inside government 
corporations.
    A lot of people still will talk surprisingly because they 
assume that they are being monitored anyway, if they are sort 
of a government insider. It has made a difference. And I do 
tell people cause I ask the question can I protect their 
identity or would it ever be necessary to be revealed. And when 
I tell them I would protect it as best that I could, but that I 
may have to if sued by an entity or charged with something. And 
it has definitely chased away at least several stories and 
sources that I know of.
    Mr. Meadows. So you mentioned a lawsuit earlier and you 
said with the unlimited budget of the Federal Government, they 
continue to I guess obstruct any settlement on this particular 
issue. Can you share with this committee--here's my concern, a 
free press that has been articulated so eloquently by some on 
the minority side of this aisle is shared by both the majority 
and minority and it should be.
    And yet, if you're trying to fight back and there is no 
accountability with regards to what was done to you, we've got 
an issue. And we should have an issue in a bipartisan way to 
say at that particular point you were working for CBS, so they 
are not normally associated with perhaps the broad brush that's 
painted for MSNBC or Fox or any--they are seen as a down-the-
road mainstream media network. So why--tell me about your 
lawsuit and where you are with that, if you can.
    Ms. Attkisson. The lawsuit's been going on over 3 years. 
And I have a wonderful attorney who's been helping me 
tirelessly. If I were him I would be tired by now, because the 
Department of Justice under Trump has been no different than 
the Department of Justice under Obama for this purpose. And 
instead of trying to find out after looking at our forensics 
which are undeniable who might have been responsible for this, 
they simply litigate and try to get the case dismissed and 
protect us--protect themselves from having discovery.
    And suddenly maybe 5, 6 weeks ago after 3 years of us 
surviving things like sovereign immunity, the judge dismissed 
the case, which we have now appealed to the fourth circuit and 
my attorney hopes to take it to the Supreme Court. Not that we 
will necessarily win because as he said, the facts are on our 
side but the law is not. Government officials are well 
protected for duties that they commit as government workers.
    I would argue that when it comes to constitutional 
violations of the press and the public that that falls outside 
of what should be protected, but it's up to the courts to 
decide. And I might mention, a case that was not--had anything 
to do with me in 2017, but impacted my case, the finding as 
legal analyst examined it said that Congress needed to pass a 
law to make government officials beholden or responsible for 
actions like what they did to me, that it was a law that was 
needed. I don't know how something like that becomes generated 
and I'm doubtful that that can get going just from knowing how 
things work.
    Mr. Meadows. I thank you. I yield back, Mr. Chairman.
    Mr. Jordan. I Thank the gentleman. The gentleman from 
Illinois is recognized for 5 minutes.
    Mr. Krishnamoorthi. Thank you, Mr. Chairman.
    You know we can't hold a hearing about the importance of 
the freedom of the press without acknowledging what the Trump 
administration is doing with regard to the fourth estate. They 
have been highly critical of journalists. Just as an example, 
President Trump has singled out, mocked, and vilified reporters 
covering his campaign and his administration. He threatened to 
cancel the broadcast licenses of news organizations. He has 
labeled any unfavorable coverage, of which there is no 
shortage, fake news.
    He has called journalists, quote, and this is a direct 
quote, the enemy of the people. He even Tweeted a video clip of 
himself tackling and individual with a super imposed CNN on to 
the ground. Now some people might dismiss these as jokes or 
empty gestures, but I want to hear your opinion on what this 
has done, if anything, to journalists and their ability to 
cover the news or to report from confidential sources and so 
forth.
    Mr. Blum, your organization represents the legal interest 
of journalists. How has President Trump's attitude towards the 
press effected journalists able to cover his administration?
    Mr. Blum. You know, I would say, you know, journalists have 
thick skin. I don't know what they are doing in journalism 
schools, but journalists are ready to be criticized for their 
stories. And much of what this President does is no different 
from what other Presidents have done in terms of wanting to 
shape a story, wanting to get better coverage in the future. 
But a lot of what this President does goes well beyond that. 
And it's a lot harder for a journalist in a local community to 
go write a story if their audience or the people they want to 
talk to about the story don't believe that they are going to 
get a fair shake in the story.
    And I think the biggest concern that we have is that the 
public is going to have a much harder time knowing what's 
accurate and what's not and what's true and happening with 
current events in their communities and what's not. And I think 
that rises above partisanship and I think that this bill is a 
way to strengthen the ability of journalists to tell important 
stories and it is critical that we do more to protect 
journalists and protect the flow of information to the public.
    Mr. Krishnamoorthi. What did you mean when you say he's 
gone beyond, what other Presidents have done? Can you elaborate 
on that?
    Mr. Blum. Sure. I think it is a very strong contrast 
between Presidents who will traditionally remind the public and 
remind ourselves about the vital role that our press plays, 
about the constitutional securities, that or the places that 
the Constitution has for free press. This President does not do 
that and tries at every turn to remind the public or to tell 
the public not to believe things like that. And I don't think 
that that's just a game and I don't think it just has short-
term benefits. I think it could be over the long-term of great 
concern.
    Mr. Krishnamoorthi. It has been reported to us that some 
folks feel that they have been physically assaulted in part 
because of a culture that's developed against the press. Can 
you talk a little bit about that?
    Mr. Blum. Sure. Our organization works with a couple of 
other organizations including the committee to protect 
journalists and a few others to track press freedom. And one of 
the things they look at is physical assaults. And the most 
dangerous place that they found for a reporter is at a protest. 
That's the place where physical assaults happen. And so 
obviously, there's things that we advise our reporters to do to 
take care, to work together, to know where you are to protect 
oneself.
    But it's a very big concern when journalists are out there 
doing their jobs reporting in the field and they may be subject 
to some kind of physical attack. We don't know whether the 
rhetoric has anything to do with any particular event, but it 
sure doesn't help.
    Mr. Krishnamoorthi. And how does this have an impact, if at 
all, on how governments in other countries treat journalists?
    Mr. Blum. I think it is very clear that other countries who 
are looking to the United States for leadership in our 
principles and pur visions that we have traditionally espoused 
and that we hold dear. Other countries that may be--dictators 
in other places may be more emboldened to crack down on their 
own press and to crack down on their own citizenry. And I think 
that that is very real danger that we have.
    We hosted a number of journalists throughout the Americas 
to come to the United States because they were concerned with 
press freedoms in the United States, it was the first time that 
the Inter American Press Association came to the United States. 
They have visited other countries where press freedom is 
endangered. And I think in their--for them to witness and talk 
with some of the folks on Capitol Hill and elsewhere, 
journalists, they are concerned, they are concerned about the 
impact back home.
    Mr. Krishnamoorthi. Thank you.
    Mr. Jordan. Mr. Blum, do journalists ever get it wrong?
    Mr. Blum. Sure. And they like to correct the record.
    Mr. Jordan. Do journalists have a bias?
    Mr. Blum. In the general sense I would say the bias is for 
the truth.
    Mr. Jordan. Well, that's accurate too. But there's been all 
kinds of examinations, all kinds of studies, all kinds of 
surveys, all kinds of polling which indicate that they have a 
bias. And so what I'm asking is if journalists get it wrong and 
they have a bias, is it--should journalists be immune when they 
get wrong from any type of criticism?
    Mr. Blum. Absolutely not, certainly not.
    Mr. Jordan. I just wanted to be clear because this shield 
law is about protecting journalist sources. It is not about 
protecting journalists who get it wrong and maybe display a 
bias, from criticism that may in fact be appropriate. Is that 
accurate?
    Mr. Blum. I would 100 percent agree with that, journalists 
are open to being criticized for getting things wrong, for 
getting things wrong in stories. If it's inaccurate, they 
should correct it and the industry is very committed to that 
kind of accountability, and this goes beyond that.
    Mr. Jordan. That's important.
    All right. The gentleman from Wisconsin is recognized.
    Mr. Grothman. Thank you. That wasn't exactly on point, but 
I'll just make a point for you.
    I love journalists. Always feel I have a good relationship 
with journalists in Wisconsin. I think I still do.
    Our country right now is, of course, divided, as it usually 
is. You know, about one-half of the people voting for the 
Republican candidate, about one-half the Democrat candidate 
every 2 years.
    And one would think given that, if you cover the average 
newsroom or the faculty of the average journalism school, you 
got about the same in the last election, about one-half voting 
for Donald Trump and one-half voting for Hillary Clinton.
    Insofar as the total number of journalism professors, say, 
wavered from that 50/50 rule, I think you're going to get 
distrust in the media. And that's unfortunate. I don't know why 
it shouldn't be 50/50. But, you know, it's something for you to 
think about. It's obviously not the purpose of the topic here 
today. But I think there's a general public perception that 
something less than 50 percent of the journalism professors in 
our schools voted for Donald Trump last year.
    And I'll give you some question. If it is,you know, you can 
say it's a problem or not, but I'd argue, you know, it 
shouldn't wonder from that 50/50 divide that much.
    A couple questions for you. I'm going to focus here a 
little bit about university newspapers, because sometimes they 
break a surprising number of important stories.
    Do State shield laws afford student journalists the same 
protections as traditional journalists? For anyone of the three 
of you.
    Mr. Levine. It varies depending on the State and the 
definition of who's covered under the particular statute. Some 
States define who a journalist is by reference to whether they 
get a paycheck and whether it's a full-time job, or something 
like that, and others are more general. So it would vary from 
State to State.
    Mr. Grothman. Do you think it should matter?
    Mr. Levine. My own view is that, especially college 
journalists are entitled to the full protections of what I 
understand the First Amendment to mean, which includes a 
protection for confidential sources.
    Mr. Grothman. Okay. Next question. Let me give you three 
different students, and you can tell me whether they should be 
treated differently under the law.
    You have one student who is writing for his local student 
newspaper. You have another student who is maybe interning or 
somehow writing for a national news organization. And another 
student forms his own newspaper, kind of a, you know, opinion 
blog or a print page.
    Do you think those three students should be treated 
differently at all?
    Mr. Levine. I do not think they should be treated 
differently.
    Mr. Grothman. Ms. Attkisson.
    Ms. Attkisson. I'm sorry, sir. I don't have an opinion. I 
haven't looked into that or--I can't give a thoughtful opinion 
about that.
    Mr. Grothman. Mr. Blum.
    Mr. Blum. I agree with Mr. Levine. They should not be 
treated differently. 
    Mr. Grothman. Okay. Well, we'll give you a--following up on 
that. Let's say I'm writing for a student newspaper, and I 
write a story on Greek life. And in that story I talk--give an 
anonymous source saying that such-and-such incident of hazing 
happened or such-and-such drinking under age 21 happened, and 
that I've been told this by members of a fraternity or 
sorority.
    Should that student be protected if they try to reveal his 
source for these things?
    Mr. Levine. I hate to ask you for more details, but----
    Mr. Grothman. Okay.
    Mr. Levine. For what kind of lawsuit are they being 
subpoenaed?
    Mr. Grothman. One of the newspapers say--I went to the 
University of Wisconsin in Madison. The Badger Herald was the 
newspaper. If they write an article saying pro or con on Greek 
life, and say I was talking to a prominent member of the Greek 
community last weekend who told me about drinking at a football 
game, or told me about hazing, both of which could be illegal, 
should that journalist be forced to reveal his sources for 
these stories.
    Mr. Levine. It's hard for me to envision a lawsuit in which 
a subpoena would be issued for that testimony. But if there 
was, it's also hard for me to conceive of a situation in which 
there wouldn't be ample alternative sources for the kind of 
information that the person----
    Mr. Grothman. Right. Well, let's say the university itself 
brings in the reporter and says, Hey, we thought there was no 
hazing going on at these frats. You said there is. Tell us, 
what do you know.
    Do you think they should be able to compel them to give 
that information or not?
    Mr. Levine. Under those circumstances, no, largely because 
there would be ample alternative sources for the university to 
go to and investigate on its own whether or not there's hazing 
at fraternities.
    Mr. Grothman. And once we get done making these journalism 
schools have, say, at least 30/70 ratios, people voted for 
Trump and Hillary, should the journalism students be educated 
on their protections under the shield laws?
    Mr. Levine. Absolutely. I think most journalism schools in 
this country do have media law courses where journalists do 
learn about their legal rights and responsibilities.
    Mr. Grothman. Thank you very much.
    Mr. Jordan. I thank the gentleman.
    Mr. Levine, earlier you were asked about the qualified 
privilege. Do you think we've got it right in this bill, hit 
the right balance on protecting this fundamental liberty and 
yet have the exceptions that may be needed in case of national 
security or terrorist threat or that sort of thing?
    Mr. Levine. I do. And I commend the committee. I mean, this 
obviously was the same bill that was introduced back in 2007, 
but I thought it had it right then, and I think it has it right 
now.
    Mr. Jordan. And would our other two witnesses? Ms. 
Attkisson and Mr. Blum, would you agree we've hit it pretty 
good.
    Ms. Attkisson. I would defer to the opinions of the experts 
who can read bills and make more legal sense of them and so 
on----
    Mr. Jordan. Would you agree, Mr. Blum?
    Mr. Blum. I would. It's a very strong bill.
    Mr. Jordan. Let me ask you where the previous gentleman was 
from Wisconsin talking about college campuses. We've had a 
hearing here on some of the shenanigans going on on college 
campuses. And I pose the question to one of the professors 
there. This is more in a broader, just First Amendment Free 
speech rights. I asked the question: Are you familiar with the 
safe spaces and free speech zones, some of these things going 
on on college campuses?
    Mr. Levine, are you familiar with all of this?
    Mr. Levine. Yes.
    Mr. Jordan. So I just asked the question, can a safe and a 
free speech zone be in the same location?
    Mr. Levine. I think that's an enigma wrapped in conundrum, 
or something like that.
    Mr. Jordan. But isn't that sort of the point?
    Mr. Levine. Yes. Absolutely.
    Mr. Jordan. Yeah. And you--I think you would agree that, 
yes, they should be, could be, and are supposed to be under the 
First Amendment; is that right?
    Mr. Levine. Absolutely.
    Mr. Jordan. Yeah.
    And, Ms. Attkisson, you would agree with that as well?
    Ms. Attkisson. Yes, sir.
    Mr. Jordan. And Mr. Blum?
    Mr. Blum. That's an easy one. Yes.
    Mr. Jordan. Yeah. Because, I mean, I remember asking.
    And should you be able to say things on--I asked--literally 
asked one professor this. Professor Raskin, I think you might 
remember this. Asked a professor: In a safe space on a college 
campus, could you make this statement, Donald Trump is 
President. And do you know what the guy said? He started his 
answer by saying, It depends.
    Think about that. That is scary. So this is why we are so 
focused on this First Amendment, not just the shield law for 
the press. But, I mean, this is--when the government comes 
after you--I'm going to ask Ms. Attkisson to tell more of the 
details of her story, because I want to know, frankly, how you 
found out, what made you first suspect that the government was 
spying on you. I think that's a pretty important question as 
well. But I've got a host of things, and I'm going to let Mr. 
Raskin kind of finish up here.
    But, Ms. Attkisson, let's go to that question, because this 
scares me. Literally, this is why we've done so many hearings. 
When pastors in the pulpit are saying you got to be careful 
what you say, it'll jeopardize your tax exempt status. When 
students are saying on campus, You can't say certain things 
that are fact, like who the President of the United States is, 
you can't say that in certain safe spaces on campus. And now 
when we find out maybe--or not maybe, but we find out a 
journalist was being spied on, this is scary stuff.
    So, Ms. Attkisson, tell me how you first figured out the 
government was watching you.
    Ms. Attkisson. Well, sir, I never suspected that because it 
sounds so wildly crazy.
    Mr. Jordan. No. It sounds crazy for me to even say it here, 
but----
    Ms. Attkisson. And this was before Edward Snowden, and 
Associated Press, and James Risen, and Jim Rosen. So it sounded 
even stranger. But I was actually approached by two different 
people who I don't think know each other in the intelligence 
community who flagged me that they thought I might be 
surveilled because of practices that they saw or became aware 
of in the intelligence agency they used to be, they said, 
strictly forbidden or controlled that were now being done more 
liberally.
    Mr. Jordan. So you had a confidential inside source come to 
you and say----
    Ms. Attkisson. Yes, sir.
    Mr. Jordan. --we think this is going on. And not just going 
on in general but going on with you personally.
    Ms. Attkisson. Yes, sir.
    Mr. Jordan. Okay.
    Ms. Attkisson. And then through--with help of another 
confidential source and a former FBI unit chief who helped 
connect me, we were able to get the first forensics exam. And 
they were literally blown away, according to them, when they 
saw this evidence, that they were so shocked, because there was 
a time when this would never have been done, they said.
    Mr. Jordan. I want to be clear. The people who did the 
forensic exam were people--background in government who know 
what they're looking for; is that right?
    Ms. Attkisson. We've had many forensic exams, but that 
first one, I can't say who it is, and you can't make me.
    Mr. Jordan. I understand. We wouldn't want to make you.
    Ms. Attkisson. But it's a government-connected person who 
knows exactly what government surveillance software does and 
looks like. The proprietary software and flagged it and 
identified it with very----
    Mr. Jordan. So not to sound too Black Helicopter here, but 
was this software installed on your computer remotely, or do 
you think someone actually broke into your home or your office 
or both?
    Ms. Attkisson. This went on for a long time, but we were 
able to forensically look at instances of remote intrusions. We 
have dates, times, and seconds, and methods. For example, they 
used something called a BGAN satellite terminal, one time at 
least. They also used a hotmail email account, a friendly 
email, attached something to it that downloaded in the 
background when I clicked on something that day.
    Mr. Jordan. You've presented all this material to a court, 
and they've dismissed the case?
    Ms. Attkisson. We never got so far as to present all of it. 
We presented some overviews. And it was considered, at the 
time, plausible. And we survived many motions to dismiss along 
the way.
    But after we added a telephone company to the lawsuit a 
few--couple months back, there was new considerations and the 
case was dismissed.
    Mr. Jordan. Okay. I've got a few more things but okay.
    Ms. Attkisson. Yes sir. But I would say anybody who wants 
to look at some of these forensics, especially at the 
Department of Justice, for the sake of trying to find who did 
it or identify for their own purposes, because I think they 
should be concerned, and I don't think I was the only one, I 
think they really ought to be on that, personally.
    Mr. Jordan. Yeah. Well, we're trying to get all kind of 
information from the Department of Justice, and we find it 
extremely difficult.
    Let me ask you about the--one of the catalysts for this 
hearing. And I think for Mr. Raskin and I, he and I have been 
working on this legislation. This is Ali Watkins, the reporter 
for the New York Times and what happened to her.
    So, Mr. Levine, can you tell me--give me your thoughts on 
that situation, just in a general sense.
    Mr. Levine. Well, as I said in my testimony, Mr. Chairman, 
I do not know whether the Justice Department followed its own 
guidelines when it procured her records. It doesn't seem to me, 
from what I've read in the press, that it's likely that they 
did. I could be wrong about that. But if they didn't, that's a 
serious concern, because they have guidelines that they're 
supposed to be following.
    If they did follow them, I have a hard time understanding, 
given what I know has been reported in the popular press about 
the nature of the investigation that led to the indictment that 
is now a criminal prosecution, that the guidelines were 
complied with substantively. That is that there was enough of a 
substantive case that could have been made to authorize the 
seizure of her records.
    But I'm hesitant to really opine on that, because I don't 
know the facts.
    Mr. Jordan. No. I understand.
    Mr. Blum.
    Mr. Blum. I think for us the reporters organization also, 
you know, looking at what they did. We are concerned, you know, 
the media organizations were concerned about the breadth of 
information that was taken, the delayed notice to her. And 
those are the kinds of things that, overtime, we're going to 
want to understand. How did the guidelines apply and were they 
applied fairly.
    And we have worked on other cases, on other issues, to 
unseal court records of how leak investigations work so that we 
have a better public record--the public has a better 
understanding of how this works. And that's what we'll be doing 
in this case as well. And that's what we're--we're involved in 
the news media dialogue working with the Justice Department on 
that. And through that we're hoping that, overtime, we'll have 
a better understanding of whether the guidelines were really 
followed or not.
    Mr. Jordan. Yeah. Thank you.
    Let me just finish with one last question. In her opening 
statement, Ms. Attkisson used the word chilling. The chilling 
impact that not having a shield law and some of the other 
things that we have witnessed in the last few years in this 
country relative to the First Amendment, what that has for a 
free society for our--I would argue for our country.
    So talk to me a little bit about what you're seeing in the 
broader context, because I think the term Ms. Attkisson uses is 
right on target. I do feel there's a chilling impact. I think 
Ms. Attkisson even referenced in one of her answers, she was 
talking to--I believe you said a Member of Congress who said I 
don't want to answer that question, Sharyl, because your 
phone's bugged.
    If that's actually going on, that is as chilling as it 
gets. So fill me in on that, and then I'll yield the balance of 
the committee's time to the gentleman from Maryland.
    Mr. Levine. Let's just go down the line.
    Mr. Levine. A lot of it is documented in my written 
testimony, but there have been multiple examples of journalists 
who have gone on the record and said not only that I couldn't 
have reported on this story if I couldn't rely on confidential 
sources but also that I didn't report on this story because 
people were afraid to come forward.
    There's a particular example that I cite in my written 
testimony about a story in the Cleveland Plain Dealer--or that 
would have been in the Cleveland Plain Dealer. But the editor 
spiked the story because he was afraid that he wouldn't be able 
to protect the identities of the confidential sources.
    Mr. Jordan. All right. Ms. Attkisson.
    Ms. Attkisson. I would say that I find myself more 
concerned not about whether the Justice Department followed the 
letter of its own guidelines. But the stuff that they're doing, 
to say cynically, that fall outside all guidelines and scrutiny 
at all. The secret stuff that they may be doing or politicizing 
in tell tools. And I don't blame an administration for this. I 
blame what I've come to call myself the persistent bureaucracy, 
because I think this happens under the administrations that I 
have covered in 24 years, and it seems to tighten up a little 
more with each one.
    I also would put part of the blame in the lap of the media. 
We haven't done a good job at making--clawing back our own 
rights when they're taken from and us. And I have some 
experience with that. I don't need to go into detail in my job 
where we have been challenged but maybe not been as aggressive 
as we could have or should have at fighting that, partly 
because we're just too busy covering the news to devote a lot 
of bandwidth and resources to making sure we retain our rights.
    Mr. Jordan. Well said. I mean, what--Lois Lerner wasn't the 
person running the IRS. She wasn't confirmed by the Senate. 
Doug Shulman was the guy running it. He's not the one who 
orchestrated the targeting that took place of innocent 
conservative groups across this country.
    So you're exactly right. Persistent bureaucracy I think is 
a good way to phrase it. She was at that near high level, but 
she was in the bureaucracy. Not the one who faces--not the one 
who comes in front of the committee until we found out what she 
was doing. So I'm very concerned about that. And as you well 
say, the things that have happened that we're in the midst of, 
and I know Mr. Raskin and I would have some disagreement on, 
but things that happened at the FISA court. This is the scary 
stuff, and we got to get to the bottom of all this as we're 
looking at First Amendment liberties.
    Mr. Blum, you get the last word----
    Mr. Blum. Say briefly.
    You know, journalists and media outlets around the country 
are facing enormous and economic pressures. And so if you can 
challenge and try to threaten and undermine that economic 
stability of the local news outlet with--just by dragging 
someone into court trying to get a subpoena for their 
information or suing them for libel when you know you don't 
have a case, that's troubling. And that provides it.
    So the lack of those kind of legal protections like we're 
talking about today, really undermining the ability of the 
press to report freely and without concern.
    Mr. Jordan. I've taken a lot of time here, so I'll let Mr. 
Raskin ask a few more questions, if the gentleman has some
    Mr. Raskin. Thank you, Mr. Chairman. Thank you. You posed 
an interesting question of whether or not a free speech zone 
can be a safe space at the same time. And I got to thinking 
about it, and I suppose my answer is, yes, because, under the 
First Amendment, the whole country's a free speech zone.
    Mr. Jordan. Exactly. Exactly.
    Mr. Raskin. And it is a safe space in the sense that it's 
safe for Democratic discussion and dialogue.
    You know, the First Amendment doesn't guarantee that 
nobody's feelings are ever going to be hurt or that people 
aren't going to be offended or disagree by other people's 
thoughts. I remember reading about the great comedian Lenny 
Bruce who kept getting arrested for his comedy, which was very 
risque at the time. And he used words some people didn't like 
and so on.
    But somebody said to him--he said he had a right of free 
speech. Someone said, Well, not if your speech is offensive. 
And he said, My parents came to America in order to be 
offensive and not get thrown into jail for it.
    And, of course, everybody gets offended by something 
different. I tell my students that free speech is like an 
apple, and everybody wants to take just one bite out of it. You 
know, somebody doesn't like left wing speech, and somebody 
doesn't like right wing speech, and somebody doesn't like pro-
monarchical speech and somebody doesn't like anti-monarchical 
speech and racist speech and sexist speech and obscene speech 
and pornographic speech, and so on. And You take all these 
bites and pretty soon there's nothing left of it because 
everybody's been able to get rid of the thing that they like 
the least.
    And so the true test of the First Amendment, of course, is 
if we're willing to stand up for even the speech that we abhor, 
even the speech that we hate.
    Well, 49 States--all the States except for Wyoming, and I 
don't know that the issue's come up in Wyoming. But 49 States 
have passed press shield laws, exactly the kind that Chairman 
Jordan and I are introducing now, or they've simply adopted the 
privilege as a matter of judicial interpretation.
    Would you guys agree that that's a pretty fair statement of 
the sentiments of the American people about this? Would you 
agree that the people recognize the critical role that the 
press plays, not for the press themselves. People might love or 
hate particular media outlets. But the critical role that the 
press plays for Democracy. Would you agree that that is a 
pretty fair statement of where the public would be on our 
legislation?
    Mr. Blum.
    Mr. Blum. Yes.
    Ms. Attkisson. It would seem so, sir.
    Mr. Raskin. Yeah.
    Mr. Levine.
    Mr. Levine. Absolutely. I think that--when I was back here 
in 2007, the vice president said that this isn't a pro press 
bill. It's a good government bill. And that's really what we're 
talking about.
    Mr. Raskin. Yeah.
    I want to close just by invoking the terrible incident that 
just took place in Annapolis, Maryland, where five staffers of 
a famed local newspaper were killed by an assailant. And the 
community rallied passionately to the support of the newspaper 
and the families of the slain. And I think that the whole State 
has stood up very strongly for the rights of journalists and 
for people who do the often unsung work that local journalists 
do.
    But they really create and continue a sense of community in 
so many of our small towns and small cities across the country. 
They don't make a lot of money. People get mad at them. People 
send them hate mail and so on. But, really, they are the 
lifeblood of American political culture.
    And so I hope that the three of you speak for journalists 
and media employees across the country in being very vigorous, 
in standing up for your rights. You know, people love to kick 
around the press at different points. But when you really stand 
back and think about it, we would not have much of a democracy 
without the work that you reporters do, so I want to thank you 
all of you.
    And I yield back, Mr. Chairman.
    Mr. Jordan. Thank you.
    We're set to close, but I'll be happy to give a minute or 
two to the gentleman from Alabama if he has some closing 
thoughts or a question.
    Mr. Palmer. Mr. Chairman, I've never gotten a complaint 
about a short hearing, so I yield back.
    Mr. Jordan. We want to again thank you all very much. You 
were all tremendous. And great opening testimony and good 
responses to the questions from the members. And we're going to 
keep working see if we can actually get this passed.
    Thank you all.
    We're adjourned.
    [Whereupon, at 4:05 p.m., the subcommittees were 
adjourned.]

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