State reporters’ shield law isn’t bulletproof

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By Steve Key

Two bills filed in the 2012 General Assembly illustrate how the state reporters’ shield law can be circumvented.

Sen. Brent Waltz, R-Green­wood, introduced an unsuccessful bill that would have prevented police conducting a traffic stop from using a device that can download data from a motorist’s cell phone.

During testimony before the Senate Judiciary Committee about S.B. 196, Waltz pointed out that the device can quickly copy all contacts, email, photos, phone history, etc., stored on the cell phone.

The practice would threaten the civil liberty and privacy of Hoosiers.

From a journalistic standpoint, the ability to strip a cell phone of all information sets the stage for a police agency to target a reporter who has been writing stories critical of a law enforcement department.

The police could make a traffic stop of the reporter, seize the cell phone and download the data in an attempt to identify a source or other information.

Think a police department would not do such an unethical thing?

Think again.

In 1999, a Delaware County deputy prosecutor convinced a judge to issue a subpoena for the phone records of The Star Press (Muncie).

The records were used by the police to identify an officer within the department who had spoken with the paper in criticism of a murder investigation.

The telephone service provider didn’t tell the newspaper about the records release.

The Star Press found out when a reporter covered a merit board meeting where the source was fired for his actions and the phone records were presented as evidence of his violation of department rules.

A second bill that could affect the shield law’s intent was filed by Rep. Cindy Kir­chhofer, R-Beech Grove, on behalf of the Indiana State Police.

H.B. 1217 would strengthen the ability of law enforcement agencies to subpoena out-of-state providers of electronic communications tools such as Facebook, Twitter, website hosts and email providers.

Provisions in the bill would allow the police to access the data without notifying those targeted.

Jordan Stewart, legal counsel for the Indiana State Police, assures HSPA that the intent is to strengthen the police’s ability to fight crime, not target the media.

He indicated a willingness to look at some protections for the media, and Kirchhofer also said she would consider changes to the bill suggested by HSPA.

The bill has been approved by the House Courts and Criminal Code Committee and awaits action on the House floor. Rep. Bruce Bor­ders, R-Jasonville, is a co-author of H.B. 1217.

Meanwhile, Waltz’s bill died in the Senate Judiciary Committee.

Committee chairman Sen. Richard Bray, R-Martinsville, said he held the bill because he wants more studying of the issue.

However, Bray said he recognized the civil-liberties issues raised by Waltz.

Without any checks on the ability to secure phone records of reporters and editors, journalists may have to resort to clandestine face-to-face meetings with sources that they want to protect from government officials.

Steve Key is executive director and general counsel for HSPA.

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