[Congressional Bills 113th Congress]
[From the U.S. Government Printing Office]
[S. 987 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                 S. 987

  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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 16, 2013

Mr. Schumer (for himself 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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Free Flow of Information Act of 
2013''.

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 comply with a subpoena, court order, 
or other compulsory legal process seeking to compel the disclosure of 
protected information, unless a Federal court in 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--
            (1) that the party seeking to compel disclosure of the 
        protected information has exhausted all reasonable alternative 
        sources (other than a covered person) of the protected 
        information; and
            (2) that--
                    (A) in a criminal investigation or prosecution--
                            (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;
                            (ii) based 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;
                            (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
                            (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
                    (B) in a matter other than a criminal investigation 
                or prosecution, based on public information or 
                information obtained from a source other than the 
                covered person--
                            (i) the protected information sought is 
                        essential to the resolution of the matter; and
                            (ii) the party seeking to compel disclosure 
                        of the protected information has established 
                        that the interest in compelling disclosure 
                        clearly outweighs the public interest in 
                        gathering and disseminating the information or 
                        news at issue and maintaining the free flow of 
                        information.
    (b) Limitations on Content of Information.--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, be narrowly tailored in purpose, subject matter, and 
period of time covered so as to avoid compelling disclosure of 
peripheral, nonessential, or speculative information.

SEC. 3. EXCEPTION RELATING TO CRIMINAL 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, or obtained during the course of, alleged criminal 
conduct by the covered person, including any physical evidence or 
visual or audio recording of the conduct.
    (b) Exception.--This section shall not apply, and, subject to 
sections 4 and 5, section 2 shall apply, if the alleged criminal 
conduct is the act of communicating the documents or information at 
issue.

SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, 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--
            (1) death;
            (2) kidnapping;
            (3) substantial bodily harm;
            (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
            (5) incapacitation or destruction of critical 
        infrastructure (as defined in section 1016(e) of the USA 
        PATRIOT Act (42 U.S.C. 5195c(e))).

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 if--
            (1) the party seeking to compel disclosure is the Federal 
        Government; and
            (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 materially assist the Federal Government in 
        preventing or mitigating--
                            (i) an act of terrorism; or
                            (ii) other acts that are reasonably likely 
                        to cause significant and articulable harm to 
                        national security; or
            (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 materially assist the Federal Government in preventing, 
        mitigating, or identifying the perpetrator of--
                    (i) an act of terrorism; or
                    (ii) other acts that have caused or are reasonably 
                likely to cause significant and articulable harm to 
                national security.
    (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.
    (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.
    (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--
            (1) an act of terrorism; or
            (2) other acts that are reasonably likely to cause 
        significant and articulable harm to national security.

SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

    (a) Conditions for Compelled Disclosure.--
            (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 through 5 shall apply in the same manner that such 
        sections apply to any document or other information sought from 
        a covered person.
            (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 under section 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 sections 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.
    (b) Notice and Opportunity Provided to Covered Persons.--A Federal 
court may compel the disclosure of a document or other information 
described in this section only after the covered person from whose 
account the document or other information is sought has been given--
            (1) notice from the party seeking the document or other 
        information through a subpoena or other compulsory request, 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 
        compelling testimony or the disclosure of a document.
    (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.
    (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.

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--
            (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
            (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.

SEC. 8. PROCEDURES FOR REVIEW AND APPEAL.

    (a) Conditions for Ex Parte Review or Submissions Under Seal.--With 
regard to any determination made by a Federal court under this Act, 
upon a showing of good cause, that Federal court may receive and 
consider submissions from the parties in camera or under seal, and if 
the court determines it is necessary, ex parte.
    (b) Contempt of Court.--With regard to any determination made by a 
Federal court under this Act, a Federal court may find a covered person 
to be in civil or criminal contempt if the covered person fails to 
comply with an order of a Federal court compelling disclosure of 
protected information.
    (c) To Provide for Timely Determination.--With regard to any 
determination to be made by a Federal court under this Act, that 
Federal court, to the extent practicable, shall make that determination 
not later than 30 days after the date of receiving a motion requesting 
the court make that determination.
    (d) Expedited Appeal Process.--
            (1) In general.--The courts of appeal shall have 
        jurisdiction--
                    (A) of appeals by a Federal entity or covered 
                person of an interlocutory order of a Federal court 
                under this Act; and
                    (B) in an appeal of a final decision of a Federal 
                court by a Federal entity or covered person, to review 
                any determination of a Federal court under this Act.
            (2) Expedition of appeals.--It shall be the duty of a 
        Federal court to which an appeal is made under this subsection 
        to advance on the docket and to expedite to the greatest 
        possible extent the disposition of that appeal.

SEC. 9. RULE OF CONSTRUCTION.

    Nothing in this Act may be construed to--
            (1) preempt any law or claim relating to defamation, 
        slander, or libel;
            (2) modify the requirements of section 552a of title 5, 
        United States Code, or Federal laws or rules relating to grand 
        jury secrecy (except that this Act shall apply in any 
        proceeding and in connection with any issue arising under that 
        section or the Federal laws or rules relating to grand jury 
        secrecy);
            (3) create new obligations, or affect or modify the 
        authorities or obligations of a Federal entity with respect to 
        the acquisition or dissemination of information pursuant to the 
        Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
        et seq.); or
            (4) preclude voluntary disclosure of information to a 
        Federal entity in a situation that is not governed by this Act.

SEC. 10. AUDIT.

    (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, 2016. 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.
    (b) Report.--Not later than June 30, 2017, 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).
    (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.
    (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.

SEC. 11. 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 section 3 or 230 of the 
                Communications Act of 1934 (47 U.S.C. 153 and 230)).
            (2) Covered person.--The term ``covered person''--
                    (A) means a person who--
                            (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--
                                    (I) conducting interviews;
                                    (II) making direct observation of 
                                events; or
                                    (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;
                            (ii) has such intent at the inception of 
                        the process of gathering the news or 
                        information sought; and
                            (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;
                    (B) includes a supervisor, employer, parent 
                company, subsidiary, or affiliate of a person described 
                in subparagraph (A); and
                    (C) does not include any person who is or is 
                reasonably likely to be--
                            (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);
                            (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));
                            (iii) designated as a Specially Designated 
                        Global Terrorist by the Department of the 
                        Treasury under Executive Order No. 13224 (50 
                        U.S.C. 1701);
                            (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);
                            (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));
                            (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;
                            (vii) committing or attempting the crime of 
                        providing material support, as that term is 
                        defined in section 2339A(b)(1) of title 18, 
                        United States Code, to a terrorist 
                        organization; or
                            (viii) aiding, abetting, or conspiring in 
                        illegal activity with a person or organization 
                        defined in clauses (i) through (vii).
            (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.).
            (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) Properly classified information.--The term ``properly 
        classified information'' means information that is classified 
        in accordance with any applicable Executive orders, statutes, 
        or regulations regarding classification of information.
            (6) Protected information.--The term ``protected 
        information'' means--
                    (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
                    (B) any records, contents of a communication, 
                documents, or information that a covered person 
                obtained or created--
                            (i) as part of engaging in journalism; and
                            (ii) upon a promise or agreement that such 
                        records, contents of a communication, 
                        documents, or information would be 
                        confidential.
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