S 448 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

February 13, 2009CommentsClose CommentsPermalink

Mr. SPECTER (for himself, Mr. SCHUMER, Mr. LUGAR, and Mr. GRAHAM) 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 2009’.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, relating to protected information, unless a Federal 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 source other than the covered person--CommentsClose CommentsPermalink





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





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





(iii) in a criminal investigation or prosecution of an unauthorized disclosure of properly classified information by a person with authorized access to such information, such unauthorized disclosure has caused or will cause significant and articulable harm to the national security; orCommentsClose CommentsPermalink





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





(3) 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. EXCEPTION RELATING TO CRIMINAL OR TORTIOUS CONDUCT.

(a) In General- Section 2 shall not apply to any information, record, document, or item obtained as the result of the eyewitness observations of alleged criminal conduct or commitment of alleged criminal or tortious conduct by the covered person, including any physical evidence or visual or audio recording of the observed conduct.CommentsClose CommentsPermalink





(b) Exception- This section shall not apply, and section 2 shall apply, if the alleged criminal or tortious conduct is the act of communicating the documents or information at issue.CommentsClose CommentsPermalink

SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, OR SUBSTANTIAL BODILY INJURY.

Section 2 shall not apply to any protected information that is reasonably necessary to stop, prevent, or mitigate a specific case of--CommentsClose CommentsPermalink





(1) death;CommentsClose CommentsPermalink





(2) kidnapping; orCommentsClose CommentsPermalink





(3) substantial bodily harm.CommentsClose CommentsPermalink

SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE NATIONAL SECURITY.

Section 2 shall not apply to any protected information that a Federal court has found by a preponderance of the evidence would assist in preventing--CommentsClose CommentsPermalink





(1) an act of terrorism; orCommentsClose CommentsPermalink





(2) other significant and articulable harm to national security that would outweigh the public interest in newsgathering and maintaining a free flow of information to citizens.CommentsClose CommentsPermalink

SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

(a) Conditions for Compelled Disclosure- With respect to testimony that relates to a communication to which a covered person is a party or any document that consists of any record or other information relating to a communication to which a covered person is a party, or that contains the contents of a communication to which a covered person is a party, 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 Federal court may compel the testimony or disclosure of a document described in this section only after the party seeking such testimony or document provides the covered person who is a party to the communication 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 compelling testimony or the disclosure of a document.CommentsClose CommentsPermalink





(c) Exception to Notice Requirement- Notice under subsection (b)(1) may be delayed for not more than 45 days 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. This period may be extended by the court for an additional period of not more than 45 days each time the court makes such a determination.CommentsClose CommentsPermalink

SEC. 7. SOURCES AND WORK PRODUCT PRODUCED WITHOUT PROMISE OR AGREEMENT OF CONFIDENTIALITY.

Nothing in this Act shall supersede, dilute, or preclude any law or court decision compelling or not compelling disclosure by a covered person or communications service provider of--CommentsClose CommentsPermalink





(1) information identifying a source who provided information without a promise or agreement of confidentiality made by the covered person as part of engaging in journalism; orCommentsClose CommentsPermalink





(2) records, other information, or contents of a communication obtained without a promise or agreement that such records, other information, or contents of a communication would be confidential.CommentsClose CommentsPermalink

SEC. 8. 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 section 3 or 230 of the Communications Act of 1934 (47 U.S.C. 153 and 230)).CommentsClose CommentsPermalink





(2) COVERED PERSON- The term ‘covered person’--CommentsClose CommentsPermalink





(A) means a person who is engaged in journalism;CommentsClose CommentsPermalink





(B) includes a supervisor, employer, parent company, subsidiary, or affiliate of a person described in subparagraph (A); andCommentsClose CommentsPermalink





(C) does not include any person who is--CommentsClose CommentsPermalink





(i) a foreign power or an agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);CommentsClose CommentsPermalink





(ii) a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a));CommentsClose CommentsPermalink





(iii) designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order Number 13224 (50 U.S.C. 1701);CommentsClose CommentsPermalink





(iv) a specially designated terrorist, as that term is defined in section 595.311 of title 31, Code of Federal Regulations (or any successor thereto); orCommentsClose CommentsPermalink





(v) a terrorist organization, as that term is defined in section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).CommentsClose CommentsPermalink





(3) DOCUMENT- The term ‘document’ means writings, recordings, and photographs, as those terms are defined by rule 1001 of the Federal Rules of Evidence (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 regular 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





(6) PROTECTED INFORMATION- The term ‘protected information’ means--CommentsClose CommentsPermalink





(A) information identifying a source who provided information under a promise or agreement of confidentiality made by a covered person as part of engaging in journalism; orCommentsClose CommentsPermalink





(B) any records, contents of a communication, documents, or information that a covered person obtained or created--CommentsClose CommentsPermalink





(i) as part of engaging in journalism; andCommentsClose CommentsPermalink





(ii) upon a promise or agreement that such records, contents of a communication, documents, or information would be confidential.CommentsClose CommentsPermalink