S 448 ISRSCommentsClose 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, Mrs. GILLIBRAND, Mrs. MCCASKILL, Mrs. MURRAY, Ms. KLOBUCHAR, Mrs. HAGAN, Mr. KAUFMAN, and Mr. UDALL of New Mexico) 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 tocomply with a subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information, unless a Federal court determines by a preponderance of the evidencein the jurisdiction where the subpoena, court order, or other compulsory legal process has been or would be issued determines, 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 documentdisclosure of the protected information has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document;protected information; and 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) if the party seeking to compel disclosure is the Federal Government, based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that a crime has occurred; CommentsClose CommentsPermalink





(ii) the testimony or documentbased on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution; CommentsClose CommentsPermalink





and(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 (iii) the Attorney General certifies that the decision to request compelled disclosure was made in a manner consistent with section 50.10 of title 28, Code of Federal Regulations, if compelled disclosure is sought by a member of the Department of Justice in circumstances governed by section 50.10 of title 28, Code of Federal Regulations; and CommentsClose CommentsPermalink





(iv) the covered person has not established by clear and convincing evidence that disclosure of the protected information would be contrary to the public interest, taking into account both the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information and the public interest in compelling disclosure (including the extent of any harm to national security); or CommentsClose 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 public information or information obtained from a source other than the covered person-- CommentsClose CommentsPermalink





(i) the protected information sought is essential to the resolution of the matter; and CommentsClose CommentsPermalink





(3) that nondisclosure of the information would be contrary to the public interest, taking into account both the publicii) the party seeking to compel disclosure of the protected information has established that the interest in compelling disclosure andclearly outweighs the public interest in gathering newsand disseminating the information or news at issue 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 A subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information under subsection (a) shall, to the extent possible--(1) be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy of such published information; and(2), be narrowly tailored in purpose, subject matter, and period of time covered so as to avoid compelling productiondisclosure 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, or obtained during the course of, alleged criminal 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, subject to sections 4 and 5, 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, SEX OFFENSES AGAINST MINORS, OR INCAPACITATION OR DESTRUCTION OF CRITICAL INFRASTRUCTURE.

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; CommentsClose CommentsPermalink





or(3) substantial bodily harm; CommentsClose CommentsPermalink





(4) conduct that constitutes a criminal offense that is a specified offense against a minor (as those terms are defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911)), or an attempt or conspiracy to commit such a criminal offense; or CommentsClose CommentsPermalink





(5) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the USA PATRIOT Act (42 U.S.C. 5195c(e))). CommentsClose CommentsPermalink

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

(a) In General- Section 2 shall not apply to any protected information that aif-- CommentsClose CommentsPermalink





(1) the party seeking to compel disclosure is the Federal court has foundGovernment; and CommentsClose CommentsPermalink





(2)(A) in a criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information, the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would assist in preventing--(1materially assist the Federal Government in preventing or mitigating-- CommentsClose CommentsPermalink





(i) an act of terrorism; or CommentsClose CommentsPermalink





(2) otherii) other acts that are reasonably likely to cause significant and articulable harm to national security that ; or CommentsClose CommentsPermalink





(B) in any other criminal investigation or prosecution, the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would outweigh the public interest in newsgathering and maintaining a free flow of information to citizensmaterially assist the Federal Government in preventing, mitigating, or identifying the perpetrator of-- CommentsClose CommentsPermalink





(i) an act of terrorism; or CommentsClose CommentsPermalink





(ii) other acts that have caused or are reasonably likely to cause significant and articulable harm to national security. CommentsClose CommentsPermalink





(b) Deference- In assessing the existence or extent of the harm described in subsection (a), a Federal court shall give appropriate deference to a specific factual showing submitted to the court by the head of any executive branch agency or department concerned. CommentsClose CommentsPermalink





(c) Relationship to Section 2- Subsection (a) shall not apply, and, subject to sections 3 and 4, section 2 shall apply, to any criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information other than one in which the protected information is sought by the Federal Government to prevent or mitigate the harm specified in subsection (a)(2)(A). In considering the extent of any harm to national security when applying section 2 to such cases, a Federal court shall give appropriate deference to any specific factual showing submitted to the court by the head of any executive branch agency or department concerned. CommentsClose CommentsPermalink





(d) Subsequent Unlawful Disclosure- The potential for a subsequent unlawful disclosure of information by the source sought to be identified shall not, by itself and without any showing of additional facts beyond such potential disclosure, be sufficient to establish that compelled disclosure of the protected information would materially assist the Federal Government in preventing or mitigating-- CommentsClose CommentsPermalink





(1) an act of terrorism; or CommentsClose CommentsPermalink





(2) other acts that are reasonably likely to cause significant and articulable harm to national security. CommentsClose CommentsPermalink

SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

(a) Conditions for Compelled Disclosure- CommentsClose CommentsPermalink





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(1) IN GENERAL- Except as provided in paragraph (2), if any document or other information from the account of a person who is known to be, or reasonably likely to be, a covered person is sought from a communications service provider, sections 2 shall apply to such testimony or document if sought through 5 shall apply in the same manner that such sections apply to any document or other information sought from a covered person. CommentsClose CommentsPermalink





(2) EXCEPTION- If any document or other information from the account of a person who is known to be, or reasonably likely to be, a covered person is sought from a communications service provider undersection 2709 of title 18, United States Code, the provisions of sections 2 through 5 governing criminal investigations and prosecutions shall apply in the same manner that such section applies to any testimony or document sought from a covered persons apply to any document or other information sought from a covered person in the course of a criminal investigation or prosecution, except that clauses (i) and (iii) of section 2(a)(2)(A) and the phrase ‘particularly with reference to directly establishing guilt or innocence’ in section 2(a)(2)(A)(ii) shall not apply. 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 disclosure of a document or other information 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)covered person from whose account the document or other information is sought has been given-- CommentsClose CommentsPermalink





(1) notice of thefrom the party seeking the document or other information through a 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; and CommentsClose 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 Federal court involved determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation, a national security investigation, or intelligence gathering, or that exigent circumstances exist. 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





(d) Notice to Communications Service Provider- In all cases in which notice is required to be provided to the covered person under this section, a copy of such notice shall be provided simultaneously to the communications service provider from whom disclosure is sought. Once it has received such notice, the communications service provider shall not comply with the request for disclosure unless and until disclosure is either ordered by the court or authorized in writing by the covered person. 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; or CommentsClose 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.PROCEDURES FOR REVIEW AND APPEAL.

(a) In General- The Inspector General of the Department of Justice shall perform a comprehensive audit of the use of this Act during the period beginning on the date of enactment of this Act and ending on December 31, 2012. The audit shall include an examination of each instance in which a court failed to compel the disclosure of protected information under this Act, and whether this Act has created any procedural impediments that have had a detrimental operational impact on the activities of the Federal Bureau of Investigation. CommentsClose CommentsPermalink





(b) Report- Not later than June 30, 2013, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under subsection (a). CommentsClose CommentsPermalink





(c) Review- Not later than 30 days before the submission of the report under subsection (b), the Inspector General of the Department of Justice shall provide the report to the Attorney General and the Director of National Intelligence. The Attorney General or the Director of National Intelligence may provide such comments to be included in the report submitted under subsection (b) as the Attorney General or the Director of National Intelligence may consider necessary. CommentsClose CommentsPermalink





(d) Form- The report submitted under subsection (b) and any comments included under subsection (c) shall be in unclassified form, but may include a classified annex. CommentsClose CommentsPermalink

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; and CommentsClose 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





(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by-- CommentsClose CommentsPermalink





(I) conducting interviews; CommentsClose CommentsPermalink





(II) making direct observation of events; or CommentsClose CommentsPermalink





(III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form; CommentsClose CommentsPermalink





(ii) has such intent at the inception of the process of gathering the news or information sought; and CommentsClose CommentsPermalink





(iii) obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means; CommentsClose CommentsPermalink





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





(C) does not include any person who is or is reasonably likely to be-- 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 member or affiliate of 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); CommentsClose CommentsPermalink





or(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





(vi) committing or attempting to commit the crime of terrorism, as that offense is defined in section 2331(5) or 2332b(g)(5) of title 18, United States Code; CommentsClose CommentsPermalink





(vii) committing or attempting the crime of providing material support, as that term is defined insection 2339A(b)(1) of title 18, United States Code, to a terrorist organization; or CommentsClose CommentsPermalink





(viii) aiding, abetting, or conspiring in illegal activity with a person or organization defined in clauses (i) through (vii). 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) JOURNALISMPROPERLY CLASSIFIED INFORMATION- 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.(6) properly classified information’ means information that is classified in accordance with any applicable Executive Orders, statutes, or regulations regarding classification of information. 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; or CommentsClose 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; and CommentsClose CommentsPermalink





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