II
111th CONGRESS
1st Session
S. 448
IN THE SENATE OF THE UNITED STATES
February 13, 2009
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 Judiciary
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.
Short title
This Act may be cited as
the Free Flow of Information Act of
2009
.
Compelled disclosure from covered persons
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—
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;
that—
in a criminal investigation or prosecution, based on information obtained from a source other than the covered person—
there are reasonable grounds to believe that a crime has occurred;
the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution; and
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; or
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; and
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.
Limitations on content of information
The content of any testimony or document that is compelled under subsection (a) shall, to the extent possible—
be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy of such published information; and
be narrowly tailored in subject matter and period of time covered so as to avoid compelling production of peripheral, nonessential, or speculative information.
Exception relating to criminal or tortious conduct
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.
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.
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—
death;
kidnapping; or
substantial bodily harm.
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—
an act of terrorism; or
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.
Compelled disclosure from communications service providers
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.
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)—
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
an opportunity to be heard before the court before compelling testimony or the disclosure of a document.
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.
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—
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
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.
Definitions
In this Act:
Communications service provider
The term communications service provider—
means any person that transmits information of the customer's choosing by electronic means; and
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)).
Covered person
The term covered person—
means a person who is engaged in journalism;
includes a supervisor, employer, parent company, subsidiary, or affiliate of a person described in subparagraph (A); and
does not include any person who is—
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);
a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a));
designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order Number 13224 (50 U.S.C. 1701);
a specially designated terrorist, as that term is defined in section 595.311 of title 31, Code of Federal Regulations (or any successor thereto); or
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)).
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.).
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.
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.
Protected information
The term protected information means—
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
any records, contents of a communication, documents, or information that a covered person obtained or created—
as part of engaging in journalism; and
upon a promise or agreement that such records, contents of a communication, documents, or information would be confidential.
