August 2017

Apparently, House Commerce Committee Republican leadership got together, both in person and by phone, with the major trade associations on both sides of the network neutrality issue August 7 in a series of meeting throughout the day to discuss possible legislative pathways to clarifying the Federal Communications Commission’s network neutrality authority. The associations involved, according to sources, included NCTA: The Internet and Television Association, CTIA (the wireless industry), USTelecom, and the Internet Association. The associations were asked for, and answered with, suggestions for changes, updates, and input, or alternatives, based on a starting point of draft bills dating back a couple of years that included no blocking, throttling, or paid prioritization, though with paid prioritization language that was flexible enough not to be a blanket prohibition, say, only prohibiting “anti-competitive” or discriminatory paid prioritization.

[Commentary] Recent statement by Attorney General Jeff Sessions mark a serious intervention in a delicate, decades-long balancing act between the federal government and professional journalists.

A change in the policy about press subpoenas could have grave consequences for the government and press alike. A subpoena is the legal tool that forces an individual to testify or produce evidence. When subpoenas are issued to journalists (or their communications providers) in leak investigations, it is most often for the purpose of identifying a leaker: Match the relevant reporter’s telephone records to an individual with access to the classified information — or better yet, force the reporter to testify directly as to the source — and you’ve got your leaker. But you’ve also compromised the press’s ability to protect their sources, undermining their ability to do their job. Reporters who refuse to reveal their sources in compliance with such subpoenas risk contempt charges.

While the Constitution limits government intrusion on the freedom of speech and of the press, the law does not offer absolute protection for journalists against revealing their sources. Congress has not enacted robust protections and the Supreme Court has not interpreted the First Amendment as itself embodying such a privilege — nothing approximating a broad “press privilege” relieving reporters from revealing sources. Such a privilege is protected at the state level in nearly all states. But no such privilege has been recognized uniformly at the federal level.

[Murillo is a third-year student at Harvard Law School, where she is an editor of the Harvard Law Review]