H.R. 2102 (110th): Free Flow of Information Act of 2007

110th Congress, 2007–2009. Text as of Oct 10, 2007 (Reported by House Committee).

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IB

Union Calendar No. 229

110th CONGRESS

1st Session

H. R. 2102

[Report No. 110–370]

IN THE HOUSE OF REPRESENTATIVES

May 2, 2007

(for himself, Mr. Pence, Mr. Conyers, Mr. Coble, Mr. Yarmuth, and Mr. Walden of Oregon) introduced the following bill; which was referred to the Committee on the Judiciary

October 10, 2007

Additional sponsors: Mr. Flake, Mr. Fortuño, Mr. Shays, Mr. Udall of New Mexico, Ms. Jackson-Lee of Texas, Mr. Cohen, Mr. Poe, Ms. Berkley, Mr. Emanuel, Mr. Mack, Mr. Towns, Mr. Larson of Connecticut, Ms. DeLauro, Mr. Gonzalez, Ms. Baldwin, Ms. Eshoo, Mrs. Capps, Ms. Castor, Mr. Radanovich, Mr. Putnam, Mr. McCotter, Mr. Blumenauer, Mr. Upton, Mr. Ferguson, Mr. Walsh of New York, Mr. Reynolds, Ms. Zoe Lofgren of California, Mr. Gene Green of Texas, Mr. Gutierrez, Mr. Courtney, Mr. Walberg, Mr. Ruppersberger, Mr. Kennedy, Mr. Murphy of Connecticut, Mr. Lampson, Mr. Meeks of New York, Mr. Rothman, Mr. Butterfield, Mr. Ortiz, Mr. Delahunt, Mr. Pallone, Mr. Al Green of Texas, Mr. Hastings of Florida, Mr. Dicks, Ms. Norton, Mr. Wexler, Mr. McCaul of Texas, Mr. Ryan of Wisconsin, Mr. Payne, Mr. Wolf, Ms. Schakowsky, Mrs. Napolitano, Ms. Fallin, Mr. English of Pennsylvania, Mr. Doyle, Ms. Wasserman Schultz, Mr. Garrett of New Jersey, Mr. Carnahan, Mr. Lewis of Kentucky, Mr. Platts, Mr. Cummings, Ms. Watson, Mr. Cooper, Mr. Kuhl of New York, Mr. Wu, and Mr. Blunt

October 10, 2007

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

Strike out all after the enacting clause and insert the part printed in italic

For text of introduced bill, see copy of bill as introduced on May 2, 2007

A BILL

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.

1.

Short title

This Act may be cited as the Free Flow of Information Act of 2007.

2.

Compelled disclosure from covered persons

(a)

Conditions for compelled disclosure

In any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created 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—

(1)

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

(2)

that—

(A)

in a criminal investigation or prosecution, based on information obtained from a person other than the covered person—

(i)

there are reasonable grounds to believe that a crime has occurred; and

(ii)

the testimony or document sought is critical to the investigation or prosecution or to the defense against the prosecution; or

(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 critical to the successful completion of the matter;

(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—

(A)

disclosure of the identity of such a source is necessary to prevent an act of terrorism against the United States or its allies or other significant and specified harm to national security with the objective to prevent such harm;

(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; or

(C)

disclosure of the identity of such a source is necessary to identify a person who has disclosed—

(i)

a trade secret, actionable under section 1831 or 1832 of title 18, United States Code;

(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)), actionable under Federal law; or

(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 actionable under Federal law; and

(4)

that the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.

(b)

Limitations on content of information

The content of any testimony or document that is compelled under subsection (a) shall—

(1)

not be overbroad, unreasonable, or oppressive and, as appropriate, 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 subject matter and period of time covered so as to avoid compelling production of peripheral, nonessential, or speculative information.

(c)

Rule of construction

Nothing in this Act shall be construed as applying to civil defamation, slander, or libel claims or defenses under State law, regardless of whether or not such claims or defenses, respectively, are raised in a State or Federal court.

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.

(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)—

(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; and

(2)

an opportunity to be heard before the court before the time at which the testimony or disclosure is compelled.

(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.

4.

Definitions

In this Act:

(1)

Communications service provider

The term communications service provider

(A)

means any person that transmits information of the customer's choosing by electronic means; and

(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)).

(2)

Covered person

The term covered person means a person who, for financial gain or livelihood, is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person. Such term shall not include—

(A)

any person who is a foreign power or an agent of a foreign power, as such terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); or

(B)

any organization designated by the Secretary of State as a foreign terrorist organization in accordance with section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).

(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.).

(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.

(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.

October 10, 2007

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed