FFIA Press-Shield Law May Expand Copyright Use As Loophole

EFF Civil Liberties Director, Jennifer Granick, provides an excellent review of the Free Flow of Information Act (FFIA). Introduced by Senators Specter, Lugar, and Schumer the bill seeks to establish a federal journalist-shield privilege.

The bill provides broad protection to anyone engaged in the regular gathering, writing or publishing of news or other matters of public interest. That’s good news to bloggers and so called citizen journalists. However the proposed law currently contains a loophole which withdraws this protection where it is most necessary.

FFIA protection would not apply in cases where the act of communicating the documents or information at issue is allegedly criminal or tortious conduct. On its face, this makes sense, the act of disclosing protected information (medical records, trade secrets, state secrets) should not find new protection in such a law.

However by extending this exclusion to all allegedly criminal or tortious disclosures, it opens a potentially destructive exclusion. One wouldn’t need to look far to classify information as covered by copyright, non-disclosure agreement, use agreements, trade secrets, or to invoke tortious interference with a contract claiming the information came from a privlileged third party. 

This law is necessary, and uniform federal protection will benefit reporters of all stripes. However, refining this exclusion would make the application of the law more reliable. Otherwise, we can expect to see more explicit legal claims, such copyright notices and use agreements attached to what today are routine private communications.

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