    [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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov
                           http://oversight.house.gov
                                       ______

                         U.S. GOVERNMENT PUBLISHING OFFICE

    31-424 PDF                WASHINGTON : 2018

                  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:]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        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:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        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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