	Introduction

In May of 2013, news broke that the Department of Justice (DOJ) had subpoenaed telephone toll records for numerous telephone lines, including some personal telephone lines, of reporters at the Associated Press (AP). The DOJ had issued these subpoenas and obtained the toll record information prior to notifying the AP The AP and many other news organizations have responded critically, noting that the DOJ's decision not to negotiate with the AP regarding the release of the records deprived AP of the ability to attempt to quash the subpoena in federal court. Some in the media argue this action enabled the DOJ to evade judicial review of its subpoenas. In defending its decision to issue the subpoenas, the DOJ argued that it had complied with its own internal guidelines regarding obtaining information from news media in the course of a criminal investigation, which allowed the agency to circumvent a requirement to negotiate with the affected news media entities if negotiations would pose a substantial threat to the integrity of the investigation. When controversies surrounding the government gaining access to reporters' confidential information arise, news media and other journalists often respond by arguing that journalists should receive special protection from government investigation and interference because the First Amendment's protections of a free press are of paramount importance in a free society. The circumstances surrounding the DOJ subpoenas of AP toll records have drawn attention to the issue again in 2013. Current Federal Law and Recent Developments

The Supreme Court has written only one opinion on the subject of journalists' privilege: Branzburg v. Hayes , in which the Court decided three cases. In Branzburg , however, the Court held that the First Amendment did not provide even a qualified privilege for journalists to refuse "to appear and testify before state or federal grand juries." The only situation it mentioned in which the First Amendment would allow a reporter to refuse to testify was in the case of "grand jury investigations ... instituted or conducted other than in good faith.... Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification." Powell's opinion leaves it uncertain whether the First Amendment provides a qualified privilege for journalists to refuse to testify before grand juries. Wyoming is the state without either a statutory or common-law privilege. Nonetheless, this incident, not unlike the case of Judith Miller in 2005, appears to have revived the debate over whether Congress should enact a federal statutory shield law for reporters. Congressional Response in the 113th Congress

Those supporting the enactment of a federal shield law argue that the controversy surrounding the subpoena of the AP toll records would have been avoided had there been a federal statute in place. H.R. Under the Senate's version of the Free Flow of Information Act of 2013, like the House version, the privilege would apply in cases arising under federal law in which a "Federal entity" seeks disclosure of "protected information" from a "covered person."
In May of 2013, news broke that the Department of Justice (DOJ) had subpoenaed telephone toll records for numerous telephone lines, including some personal telephone lines, of reporters at the Associated Press (AP). The DOJ had issued these subpoenas and obtained the toll record information prior to notifying the AP The AP and many other news organizations have responded critically, noting that the DOJ's failure to negotiate with the AP regarding the release of the records deprived AP of the ability to attempt to quash the subpoena in federal court. The media argues this action enabled the DOJ to evade judicial review of its subpoenas. In defending its decision to issue the subpoenas, the DOJ argued that it had complied with its own internal guidelines regarding obtaining information from news media in the course of a criminal investigation, which allowed the agency to circumvent a requirement to negotiate with the affected news media entities if negotiations would pose a substantial threat to the integrity of the investigation.
When controversies surrounding the government gaining access to reporters' confidential information arise, news media and other journalists often respond by arguing that journalists should receive special protection from government investigation and interference because the First Amendment's protections of a free press are of paramount importance in a free society. The circumstances surrounding the DOJ subpoenas of AP toll records have been no different.
The Supreme Court has only decided one case related to a constitutional privilege allowing journalists to refuse to divulge confidential information to the government. In Branzburg v. Hayes, 408 U.S. 665, 679-680 (1972), the Supreme Court held that the First Amendment did not provide even a qualified privilege for journalists to refuse "to appear and testify before state or federal grand juries." The only situation it mentioned in which the First Amendment would allow a reporter to refuse to testify was in the case of harassment or grand jury investigations instituted in bad faith. Nonetheless, a concurrence by Justice Powell that has been followed by a number of federal circuits suggested that there may be a qualified privilege for journalists in grand jury investigations.
Despite the fact that there may be either limited or no constitutional protection for journalists, statutory and common law protections do exist. Though many states do have either judicially created or statutory "shield laws" in place, there is no federal statutory shield law. It has been argued that if there had been a federal shield law in place at the time the controversial AP toll record subpoenas were issued, many of the issues raised by the incident could have been avoided. The Obama Administration announced a renewed interest in enacting a federal statute that would grant a qualified evidentiary privilege to reporters. New versions of the Free Flow of Information Act, which has been debated by a number of Congresses in the past, have already been introduced in the House (H.R. 1962) and Senate (S. 987). This report will provide an overview of the constitutional status of a journalist's privilege under the First Amendment; a description of two recent cases in which the government sought confidential information from the press (the Judith Miller case, and the recent AP case); and an analysis of the current proposals for enacting a federal shield law.