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Shield law must balance legitimate needs of privacy

What happens when an employee, after reviewing a high-profile co-worker's personnel records, discloses to a media outlet that the co-worker took time off to seek mental health care or is taking HIV medications? Or when a company's database is stolen and the thief sells Social Security numbers, credit card numbers and other highly personal information to a professional blogger? Under "media shield" bills currently being considered in Congress, these individuals could be protected as legitimate reporter "sources."

If passed, proposed federal media shield legislation would prevent journalists from having to disclose information provided from anonymous sources in federal courts, including the identity of those sources. While shield laws provide responsible journalists with important protections, they can unintentionally protect sources who steal and leak private customer, employee and competitive information, including intellectual property. The current legislation is a dramatic improvement over previous versions, but still has some fatal flaws.

It is imperative that businesses, individuals and Congress fully consider the consequences that such indiscriminate legislation will have on the privacy rights of American businesses and individuals.

The changes needed to fix this bill are simple: balance the need for reporters to engage in the public debate and bring important stories forward with the need to protect the integrity of confidential information. This balancing test should be done in all situations, but particularly when the information is specifically protected by law.

Congress can do this by giving courts the ability to determine whether the private harm is greater than the public interest. A judge would enforce the reporter-source protection when it is in the public's interest -- such as when the media is being a check on government or exposing wrongdoing -- and allow for sources to be prosecuted when the sources maliciously and illegally share someone else's most confidential information.

Historically, Congress and state legislators have considered the competing rights of business and personal privacy in shaping such "public right to know" laws. The Freedom of Information Act -- one of the most important "public right to know" statutes in this country's history -- specifically exempts from disclosure information that is otherwise protected by law; is proprietary or privileged business information; or could lead to unwarranted invasions of personal privacy.

What America needs is a flexible shield law that will allow the courts to carefully evaluate the public's need to know and the privacy rights of individuals and businesses. A one-size-fits-all approach with no judicial oversight leaves people and businesses vulnerable to information theft.

Phil Goldberg is an attorney who works on behalf of businesses and industry associations to find common ground within the Free Flow of Information Act of 2007.1

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