Nevada’s shield law could be broadened

Monday, June 2, 2014

Nevada’s shield law, one of the strongest in the nation, will get a look this week by an advisory board for possible legislation to broaden it.
Proposed language would change the fundamental test from ‘journalist’ to ‘journalism’ in deciding who gets protected from subpoenas trying to get access to notes and other unpublished information.
Here’s a draft of language (see below) that will be forwarded to the Technical Crime Advisory Board for its meeting on Thursday.
In essence, the existing shield law protects journalists working for newspapers, radio stations or TV stations from being forced to disclose any unpublished information or sources.
The proposed language, largely the work of UNLV journalism professor Stephen Bates, would protect anyone “engaged in activities of journalism.”
The idea is to broaden the scope of the protection to cover bloggers, authors and others who aren’t necessarily working for a news organization.
A subcommittee of the Tech Crime Advisory Board, which has been studying privacy issues, voted on Friday to forward its recommendation to the board.
At Thursday’s meeting, it is scheduled to consider whether to seek legislation in the 2015 session.
I spoke to the subcommittee at its last couple of meetings, including Friday, with one primary concern: Opening up the shield law would make it vulnerable to tampering by legislators, some of whom may not have the same interests at heart in protecting journalists.
From the NPA’s standpoint, 90 percent of our members are covered by the existing language. It has stood up well in court challenges, and it is regarded as a model in the United States.
Anytime you take a section of law to the Legislature, you’re risking an outcome quite different than you intended.

Nevada Shield Law—Revised
Stephen Bates and Allen Lichtenstein 5/28/14
current:
NRS 49.275 News media. No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation:
1. Before any court, grand jury, coroner’s inquest, jury or any officer thereof.
2. Before the Legislature or any committee thereof.
3. Before any department, agency or commission of the State.
4. Before any local governing body or committee thereof, or any officer of a local government.

May 2014 draft:
1. “Journalism” means gathering, preparing, collecting, photographing, filming, recording, writing, editing, reporting, or publishing information concerning matters of potential interest for dissemination to a segment of the public, in any medium of expression that currently exists or shall exist in the future.
2. “Legal proceeding” means any hearing, trial, or investigation:
(a) before any court, grand jury, coroner’s inquest, jury, or any officer thereof;
(b) before the Legislature or any committee thereof;
(c) before any department, agency, or commission of the State; or
(d) before any local governing body or committee thereof, or any officer of a local government.
3. In any legal proceeding, no person or entity engaged in activities of journalism may be required to disclose any published or unpublished information related in any way to activities of journalism engaged in by any person or entity.
4. A party issuing a subpoena in any legal proceeding to a third party that seeks the records of a person or entity engaged in activities of journalism shall provide notice of the subpoena to the person or entity at least five days before issuing the subpoena. The notice shall include, at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.
5. In the case of a person or entity whose activities do not fall within the definition of “journalism” set forth in subsection (1), a judge may exercise discretion to apply the provisions of subsections (3) and (4) if the judge determines that doing so would serve the interest of justice by aiding or protecting activities related in any way to the dissemination of information.

April 2014 draft:
1. “News organization” means a newspaper, periodical, press association, radio station, television station, online source of information about current events, or book publisher.
2. “Journalist” means a reporter, editor, writer, researcher, photographer, videographer, or editorial worker, currently or formerly employed by or under contract to a news organization, or whose work appears in one or more news organizations.
3. “Legal proceeding” means any hearing, trial, or investigation:
(a) Before any court, grand jury, coroner’s inquest, jury, or any officer thereof.
(b) Before the Legislature or any committee thereof.
(c) Before any department, agency, or commission of the State.
(d) Before any local governing body or committee thereof, or any officer of a local government.
4. No journalist may be required to disclose any published or unpublished information obtained, related to, or prepared by such person in such person’s professional capacity in gathering, receiving, or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceeding.
5. A party issuing a subpoena in any legal proceeding to a third party that seeks the records of a journalist or a news organization shall provide notice of the subpoena to both the journalist and the news organization at least five days before issuing the subpoena. The notice shall include, at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.
EFF recommends the functional definition in (1) and the safety net in (5), though the language may need tweaking.
I assume that we needn’t define “public,” i.e., audience.
Hal wonders if there’s a way to require payment of attorney’s fees or some such for harassing subpoenas. Helpful?
Is it feasible and worthwhile to include some sort of penalty for anyone who issues a third-party subpoena without the requisite five days’ notice?
I guess that might be possible for the third-party subpoenas
functional approach
1. The term ‘journalism’ means the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.
(House shield law bill)
the term “a representative of the news media” means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.