Congress Could Protect Journalists From Surveillance. Trump Is Lobbying to Stop Them.

After campaigning on the message that journalists are the “enemy of the people,” President-elect Donald Trump has come out against a bipartisan bill that would protect reporters and their sources from government interference. In a social media post on Wednesday, Trump bellowed that Republicans “MUST KILL THIS BILL.”

The PRESS Act, a federal reporter shield bill with broad support, unanimously passed the House of Representatives in January. It’s been sitting for months with the Democrat-led Senate Judiciary Committee, where its sponsors — a coalition of Democrats and Republicans — must now strategize around Trump’s sudden opposition. 

Trump’s edict was in response to an interview with the Committee to Protect Journalist’s CEO Jodie Ginsberg, who urged Congress to pass the PRESS Act before Trump returns to the White House.

“We know that Trump is interested in going after whistleblowers,” Ginsberg told “PBS NewsHour.” “And it’s absolutely essential that they are protected, and that journalists’ sources are protected, and that journalists are allowed to do their job.”

As of a few weeks ago, just three Republicans in the Senate expressed opposition to the PRESS Act, a source familiar with the deliberations told The Intercept.

With the House passing on Thursday a bill that would hand Trump additional power to target nonprofit media outlets on pretext, the PRESS Act would at least limit federal agents’ authority to ferret out confidential sources and seize journalists’ communications.

“There’s nothing more commonsense, or more bipartisan, than shielding journalists from unnecessary government surveillance,” said Sen. Ron Wyden, D-Ore., the bill’s primary Senate sponsor, in an emailed statement. “Conservative, liberal, and nonpartisan media all depend on speaking to sources without fear of being spied on by government officials who want to suppress unflattering information.”

The PRESS Act — or Protect Reporters from Exploitative State Spying Act — would fill a glaring gap in legal protections for journalists. It would prohibit the FBI and other agencies from identifying leakers through subpoenas to journalists, their internet companies, and other service providers. And it would bar federal judges from ordering reporters to hand over confidential emails, notes, and other records.

The bill was drafted broadly to protect full-time staff reporters as well as independent journalists, but it would not apply in defamation cases or situations in which a reporter is under criminal investigation. It also has limited carveouts, such as if a court finds that certain information is necessary to prevent acts of terrorism or imminent violence. Even under these carveouts, reporters would be notified of the subpoena and have an opportunity to challenge it unless a court rules otherwise.

The overwhelming majority of states have similar shield laws on the books, but these do not protect against federal investigations. While many federal courts have recognized similar protections under the First Amendment, there’s no uniform standard. 

“You’ve got this confusing patchwork of federal appellate circuits applying the reporter’s privilege in entirely different ways based on where you are, which legal theories are at play, and other factors,” said Seth Stern, the Freedom of the Press Foundation’s advocacy director. “Right now, reporters can’t anticipate all of them when a source asks, ‘Can you protect me?’”

“If journalists can’t assure their sources that their identity will remain confidential, sources simply aren’t going to come forward,” Stern said.

Press advocates have fought for years to pass a federal reporter shield law, and the effort has often been bipartisan, a reflection of the fact that the Justice Department has gone after reporters’ sources under Republican and Democratic presidents alike.

The Obama administration seized two months’ worth of the Associated Press’s phone records for one leak investigation, and it fought for years to try to force The Intercept’s James Risen to testify about confidential sources. Under George W. Bush, federal prosecutors similarly hounded reporters to give up leakers.

“Unfortunately, multiple presidential administrations have abused U.S. laws to spy on reporters just for doing their jobs,” said Joe Mullin, senior policy analyst at the Electronic Frontier Foundation. “The PRESS Act, which has strong bipartisan support, would put a stop to this abuse of power.”

Wyden introduced the PRESS Act in 2021 following revelations that the Trump Justice Department secretly sought phone records and email data for reporters from the New York Times, the Washington Post, and CNN. The bill easily passed the House but stalled in the Senate in late 2022 after Sen. Tom Cotton, R-Ark., objected in a bizarre speech that decried release of the Pentagon Papers in 1971.

Wyden, along with Republican co-sponsors Mike Lee of Utah and Lindsay Graham of South Carolina, reintroduced the PRESS Act in 2023. The House version sailed through again and was approved unanimously this January.

Since then, the PRESS Act has been with the Senate Judiciary Committee, whose chair, Dick Durbin, D-Ill., is also a co-sponsor. But Durbin has not scheduled the bill for markup despite pleas from civil liberties and press organizations, including The Intercept.

“I joined my colleagues in introducing the PRESS Act to ensure that journalists have the necessary protections to speak with their sources and do their jobs effectively without undue government interference,” Durbin said in an emailed statement. “And I will continue to work with my colleagues to see this bill advance.”

With just weeks to go in the lame-duck session, there seemed to be three potential holdouts against the PRESS Act before Trump weighed in.

In response to a recent hotline — a poll of senator’s positions about passing a given bill through the chamber’s unanimous consent mechanism — three Republicans indicated they would object to the PRESS Act, a source familiar with the results told The Intercept: Cotton remains opposed, plus John Cornyn of Texas and John Kennedy of Louisiana.

Cotton and Kennedy did not respond to questions about the PRESS Act, and Cornyn’s office declined to comment on his position.

“Based on the feedback we’ve received from senators and President Trump, it’s clear we have work to do to achieve consensus on this issue,” said Rep. Kevin Kiley, R-Calif., the bill’s Republican sponsor in the House.