WASHINGTON — Democratic senators who have been working on legislation providing greater protections to reporters who refuse to identify confidential sources are backpedaling from WikiLeaks, the Web site that recently disclosed more than 75,000 classified documents related to the Afghanistan war.
Senators Charles E. Schumer and Dianne Feinstein, Democrats of New York and California, are drafting an amendment to make clear that the bill’s protections extend only to traditional news-gathering activities and not to Web sites that serve as a conduit for the mass dissemination of secret documents. The so-called “media shield” bill is awaiting a vote on the Senate floor.
“WikiLeaks should not be spared in any way from the fullest prosecution possible under the law,” Mr. Schumer said in a statement. “Our bill already includes safeguards when a leak impacts national security, and it would never grant protection to a Web site like this one, but we will take this extra step to remove even a scintilla of doubt.”
The bill would allow reporters, when faced with subpoenas seeking to compel them to testify about their confidential sources, to ask a federal judge to quash the demand rather than fining or jailing them for contempt of court if they refuse to comply. About three dozen states have such a law for state courts.
Under the bill, federal judges would evaluate requests to quash a subpoena by balancing the public interest against the need to identify a source, providing different levels of protection depending on the nature of the case.
The information seeker would also have to exhaust all other means of obtaining the names before seeking a journalist’s testimony, though matters involving threats to national security would be exempted from some protections.
It is not clear whether WikiLeaks — a confederation of open-government advocates who solicit secret documents for publication — could be subject to a federal subpoena. Federal courts most likely do not have jurisdiction over it or a means to serve it with such a subpoena.
Moreover, WikiLeaks says that its Web site uses technology that makes it impossible to trace the source of documents that are submitted to it, so even if the organization were compelled to disclose a source, it is not clear that it would be able to do so.
Still, in case WikiLeaks or a similar organization sought to invoke a shield law, proponents of the legislation are trying to create legislative history that would show judges that Congress did not intend for the law to cover such organizations. The idea, aides said, would be to add language bolstering a section defining who would be covered by the law as a journalist — an area that can be tricky in an era of blogging and proliferation of online-only news media outlets.
Paul J. Boyle, senior vice president for public policy at the Newspaper Association of America — which supports the bill — said Senate aides had asked his group to consult on the proposed changes.
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