Senate Democrats Are Running Out of Time to Pass a Shield Law to Protect Journalism

Legislation that would bar the United States government from spying on journalists—except under rare, specific circumstances—is currently stalled in Congress, despite having passed the House of Representatives with unanimous support nearly one year ago. Now, with only weeks left to legislate, press advocates are urging Senate Democrats to pass the bill, known as the PRESS Act, before the end of the lame-duck session.

The bill, also known as the “Protect Reporters from Exploitative State Spying Act,” would broadly prevent federal agencies from using subpoenas and warrants to target journalists and their sources. The protections would cover any information “obtained or created” while “engaging in journalism,” and would extend to phone and email records possessed by third-party services, such as Google and Meta.

While the PRESS Act famously enjoys strong bipartisan support, the current conditions in the Senate, where the bill now lingers, are less than ideal. Democrats, poised to lose the majority on January 3, are scrambling to accomplish what little they can before ceding control. It remains unclear whether the Senate majority leader, Chuck Schumer, who is said to be prioritizing judicial vacancies in the coming weeks, is going to fight to get the PRESS Act a vote before his window expires.

“If there’s anything that has a good chance to pass, it should be this,” says Trevor Timm, cofounder and executive director of Freedom of the Press Foundation. “It has so much bipartisan support and barely any opposition. But the only chance it has is to pass in during the lame-duck session.”

Notably, the bill has the backing of both senators Dick Durbin and Lindsey Graham, the chair and ranking member of the Senate Committee on the Judiciary, respectively. This is a major requirement for the bill to advance. In a statement to WIRED, Durbin said he would continue to work with colleagues to pass the PRESS Act, calling its protections “necessary” and “fundamental to holding politicians and others in power accountable.”

Schumer did not respond to a request for comment.

The PRESS Act is the culmination of more than a decade’s worth of debate on the topic of a federal “shield law.” Forty-nine states and the District of Columbia already have laws on the books that protect journalists from being forced to disclose information about their sources; however, the protections vary widely and many predate the internet age. Who, precisely, is considered a “journalist” worthy of being shielded from government overreach can also vary from state to state.

“The nice thing about this bill is that it just gets rid of all these complicated balancing tests, putting in a presumption that the Justice Department can’t spy on journalists unless one of a few exceptions occur,” says Timm.

The exemptions in the PRESS Act would still allow the government to pursue access to a journalist’s work product, so long as it’s necessary to prevent an “act of terrorism” or to “prevent the threat of imminent violence, significant bodily harm, or death,” exigencies that traditionally take precedence over concerns about free speech and privacy in court.

While some federal appeals courts do recognize special privileges for reporters, others do not. “There is no consistency,” says Gabe Rottman, director of the Reporters Committee’s Technology and Press Freedom Project.

The most important protections journalists rely on at the federal level, says Rottman, are guidelines issued by the Justice Department that (currently) forbid federal agencies from targeting reporters, except under limited circumstances—think preventing a death or a kidnapping. The guidelines, which first came about in the 1970s, have for years allowed federal prosecutors to obtain journalists’ records if they are said to be both “essential to an investigation” and not obtainable by other means.

The Justice Department’s guidelines were updated in mid-2021, shortly after President Joe Biden took office. The revisions, approved by the attorney general, Merrick Garland, followed revelations in the press that the Trump administration had made secret attempts to seize phone and emails records of reporters at CNN, The Washington Post, and The New York Times.

“Under the Garland Justice Department, the guidelines were revised to be significantly more protective than the previous version,” says Rottman. “But they can be changed.”

Attorneys for the Knight First Amendment Institute noted at the time of Merrick’s revisions that, while the guidance was likely to come off as a hindrance for investigators, the restrictions “are not categorical, and their operative terms are vague and subject to interpretation by the Justice Department.”

The attorneys noted that the existence of the guidelines had not deterred the Trump administration from ignoring them—never bothering, for instance, to notify or seek the cooperation of news outlets before forcibly seizing their records. “Nor did they deter it from imposing gag orders on communications intermediaries—and later, on the news organizations as well,” they said.

Trump and his allies like Peter Thiel, who famously destroyed Gawker Media by secretly funding a lawsuit against it, have demonstrated a willingness to use the legal system against journalists. Earlier this month, Trump himself sued CBS for $10 billion, claiming that an interview with Vice President Kamala Harris constituted unlawful election interference. (While legal experts universally dismiss the suit as absurd, the network will still have to dedicate significant time and resources to defending against it.) And he has vowed to use the Justice Department to investigate his political enemies once in office—a threat that naturally extends to news outlets that have angered him. In September, the former president, now president-elect, accused NBC News and “others” of treason in response to coverage of his criminal court cases, while adding that many news outlets would be “thoroughly scrutinized” once he again takes office.

“They are a true threat to Democracy and are, in fact, THE ENEMY OF THE PEOPLE!” Trump said.

In July, the Reporters Committee and 53 other news media and press rights organizations called on Senate leaders to advance the PRESS Act, warning that the Justice Department’s rules could be changed or reversed on a whim. “Only Congress,” they said, “can provide the press the certainty of a federal statute.”

Senate staffers, who spoke on condition of anonymity, told WIRED that the bill’s inclusive “journalism” definition was a selling point among conservatives, with the definition extending well beyond the “institutional press,” as the courts sometimes call it. The language of the act defines a journalist as “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” This is in keeping with US traditions, rooted in the First Amendment, of defining a journalist as someone who practices journalism rather than as someone who belongs to a guild or operates under a government license.

“It’s a very broad definition,” adds Timm. “And there is no ideological test. It protects conservative journalists as much as it does liberal or mainstream or corporate journalists.”

“There’s nothing more commonsense, or more bipartisan, than shielding journalists from unnecessary government surveillance,” Senator Ron Wyden, who authored the Senate version of the PRESS Act, tells WIRED. “Conservative, liberal, and nonpartisan media all depend on speaking to sources without fear of being spied on by government officials who want to suppress unflattering information.”

Senator Tom Cotton, who previously voiced opposition to the bill, did not respond to a request for comment. In a statement two years ago, Cotton, a Republican from Arkansas, said the bill would “open a floodgate of leaks damaging to law enforcement and our nation’s security.” He went on to decry the publication of the Pentagon Papers—a classified study that revealed the US government had misled the public for decades over its involvement in Vietnam, which was published in full only after being read into the Congressional Record by then-senator Mike Gravel.

“These leaks were reckless and harmful to our national security,” added Cotton, declaring there are “no shortage of legitimate and legal avenues for whistleblowers to unveil potential government misconduct.”