S 1267 ISCommentsClose CommentsPermalink

To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.CommentsClose CommentsPermalink

May 2, 2007

Mr. LUGAR (for himself, Mr. DODD, Mr. GRAHAM, Mr. DOMENICI, and Ms. LANDRIEU) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the `Free Flow of Information Act of 2007'.CommentsClose CommentsPermalink

SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.

(a) Conditions for Compelled Disclosure- In any proceeding or in connection with any issue arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information possessed by such covered person as part of engaging in journalism, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person--CommentsClose CommentsPermalink





(1) that the party seeking to compel production of such testimony or document has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document;CommentsClose CommentsPermalink





(2) that--CommentsClose CommentsPermalink





(A) in a criminal investigation or prosecution, based on information obtained from a person other than the covered person--CommentsClose CommentsPermalink





(i) there are reasonable grounds to believe that a crime has occurred; andCommentsClose CommentsPermalink





(ii) the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution; orCommentsClose CommentsPermalink





(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than the covered person, the testimony or document sought is essential to the successful completion of the matter;CommentsClose CommentsPermalink





(3) in the case that the testimony or document sought could reveal the identity of a source of information or include any information that could reasonably be expected to lead to the discovery of the identity of such a source, that--CommentsClose CommentsPermalink





(A) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security with the objective to prevent such harm;CommentsClose CommentsPermalink





(B) disclosure of the identity of such a source is necessary to prevent imminent death or significant bodily harm with the objective to prevent such death or harm, respectively; orCommentsClose CommentsPermalink





(C) disclosure of the identity of such a source is necessary to identify a person who has disclosed--CommentsClose CommentsPermalink





(i) a trade secret of significant value in violation of a State or Federal law;CommentsClose CommentsPermalink





(ii) individually identifiable health information, as such term is defined in section 1171(6) of the Social Security Act (42 U.S.C. 1320d(6)), in violation of Federal law; orCommentsClose CommentsPermalink





(iii) nonpublic personal information, as such term is defined in section 509(4) of the Gramm-Leach-Biley Act (15 U.S.C. 6809(4)), of any consumer in violation of Federal law; andCommentsClose CommentsPermalink





(4) that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.CommentsClose CommentsPermalink





(b) Limitations on Content of Information- The content of any testimony or document that is compelled under subsection (a) shall, to the extent possible--CommentsClose CommentsPermalink





(1) be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy of such published information; andCommentsClose CommentsPermalink





(2) be narrowly tailored in subject matter and period of time covered so as to avoid compelling production of peripheral, nonessential, or speculative information.CommentsClose CommentsPermalink

SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

(a) Conditions for Compelled Disclosure- With respect to testimony or any document consisting of any record, information, or other communication that relates to a business transaction between a communications service provider and a covered person, section 2 shall apply to such testimony or document if sought from the communications service provider in the same manner that such section applies to any testimony or document sought from a covered person.CommentsClose CommentsPermalink





(b) Notice and Opportunity Provided to Covered Persons- A court may compel the testimony or disclosure of a document under this section only after the party seeking such a document provides the covered person who is a party to the business transaction described in subsection (a)--CommentsClose CommentsPermalink





(1) notice of the subpoena or other compulsory request for such testimony or disclosure from the communications service provider not later than the time at which such subpoena or request is issued to the communications service provider; andCommentsClose CommentsPermalink





(2) an opportunity to be heard before the court before the time at which the testimony or disclosure is compelled.CommentsClose CommentsPermalink





(c) Exception to Notice Requirement- Notice under subsection (b)(1) may be delayed only if the court involved determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation.CommentsClose CommentsPermalink

SEC. 4. DEFINITIONS.

In this Act:CommentsClose CommentsPermalink





(1) COMMUNICATIONS SERVICE PROVIDER- The term `communications service provider'--CommentsClose CommentsPermalink





(A) means any person that transmits information of the customer's choosing by electronic means; andCommentsClose CommentsPermalink





(B) includes a telecommunications carrier, an information service provider, an interactive computer service provider, and an information content provider (as such terms are defined in sections 3 and 230 of the Communications Act of 1934 (47 U.S.C. 153, 230)).CommentsClose CommentsPermalink





(2) COVERED PERSON- The term `covered person' means a person engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.CommentsClose CommentsPermalink





(3) DOCUMENT- The term `document' means writings, recordings, and photographs, as those terms are defined by Federal Rule of Evidence 1001 (28 U.S.C. App.).CommentsClose CommentsPermalink





(4) FEDERAL ENTITY- The term `Federal entity' means an entity or employee of the judicial or executive branch or an administrative agency of the Federal Government with the power to issue a subpoena or issue other compulsory process.CommentsClose CommentsPermalink





(5) JOURNALISM- The term `journalism' means the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.CommentsClose CommentsPermalink