We haven’t heard much ofÂ late about the so-called federal shield law. MaybeÂ that’s becauseÂ reportersÂ have finally readÂ the bill and realizedÂ that its main beneficiary would be Steve Jobs of Apple.
In DecemberÂ 2004,Â Apple suedÂ two web sitesÂ that hadÂ published details of someÂ hush-hush Apple products.Â The information was a trade secret, like the formula for Coke,Â said Apple, whichÂ also wanted to know who had leaked the info.Â But state courts said no becauseÂ California hadÂ a shield law that protected the web sites from divulging theirÂ sources. (SeeÂ case summary in Wikipedia.)
ButÂ had theÂ proposed federal shield law been on the books, the outcome would have been different.Â This proposal, called — The Free Flow of Information Act of 2007,Â authorizes the jailing of any reporter who refuses to say who disclosed a trade secret.Â In fact, the law never uses the word “shield.” Instead it detailsÂ the various circumstances under which reporters can be jailed.Â Congress has a truth in labeling requirement for legislation. The first sentence ofÂ every billÂ explain its intent. TheÂ first lineÂ from the HR 2102,Â which passed the House by a 398-21 margin last October, say the act is designed:
“To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”
So the bill’sÂ stated purposeÂ isÂ toÂ keep information flowingÂ freelyÂ byÂ insuringÂ that reporters can be deprived of their freedom if they don’t reveal their sources in cases involving national security or terrorist attacks. The trade secrets provision in the HouseÂ billÂ says once the party with the secret (i.e. Steve Jobs)Â “hasÂ exhausted all reasonable alternative sources”Â ( pretty please with a cherry on topÂ failed) a federal judgeÂ can send editors toÂ jailÂ unless they “identify a person who has disclosedÂ a trade secret.”
TheÂ trade secret provisionÂ will cripple investigations ofÂ corporate activity. For instance, considerÂ what happened in 2006Â whenÂ the Electronic Frontier FoundationÂ filed aÂ federal lawsuitÂ charging thatÂ “AT&T Corp. has opened its key telecommunications facilities and databases to direct access byÂ the NSA and/or other governmental agencies, intercepting telephone service since at least June 2004.”
As part of its reponse AT&TÂ wrote EFF a letterÂ asking aboutÂ its posession ofÂ documents that “relate to the technical structure of AT&T telephone networks and are extremely sensitive in nature . . . Were they or any one of them to fall into the wrong hands they could be used to ‘hack’ into the AT&T network.”
Had the Free Flow law beenÂ on the books,Â would thereÂ have been a story about illegal surveillance?Â Only AT&T knows how its network runs.Â Reporters would have toÂ use AT&TÂ “technical” documents orÂ persuade AT&T officials to leak “extremely sensitive” information. Would reporters peeking into AT&T’s networkÂ find themselves telling a federal judge where they got secretÂ information of such sensitivity?
In 1977 Mark Dowie published Pinto MadnessÂ in Mother Jones Magazine. The article saidÂ Ford Motor Company had known thatÂ the design ofÂ the gasÂ tank on its PintoÂ madeÂ the carÂ susceptible to explosion in rear end collisions, that the companyÂ had a safer design and yetÂ it sold the car anyway because of competitive pressures. At one point Dowie wrote:
“Internal company documents in our possession show that Ford has crash-tested the Pinto at a top-secret site more than 40 times and that every test made at over 25 mph without special structural alteration of the car has resulted in a ruptured fuel tank. Despite this, Ford officials denied under oath having crash-tested the Pinto.”
The Free Flow of Information Act will not shield reporters. ItÂ will stab them in the backs.