[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2035 Reported in Senate (RS)]
Calendar No. 434
110th CONGRESS
1st Session
S. 2035
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
September 10, 2007
Mr. Specter (for himself, Mr. Lugar, Mr. Schumer, Mr. Graham, Mr. Dodd,
and Mr. Leahy) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
October 22, 2007
Reported by Mr. Leahy, with amendments
[Omit the part struck through and insert the part printed in italic]
_______________________________________________________________________
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
2007''.
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--
(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;
(2) that--
(A) in a criminal investigation or prosecution,
based on information obtained from a <DELETED>person</DELETED>
source other than the covered person--
(i) there are reasonable grounds to believe
that a crime has occurred;
(ii) the testimony or document sought is
essential to the investigation or prosecution
or to the defense against the prosecution; 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<DELETED>, clear,</DELETED>
and articulable harm to the national security;
or
(B) in a matter other than a criminal investigation
or prosecution, based on information obtained from a
<DELETED>person</DELETED> source other than the covered
person, the testimony or document sought is essential
to the resolution of the matter; and
(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.
(b) Limitations on Content of Information.--The content of any
testimony or document that is compelled 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 subject matter and period of
time covered so as to avoid compelling production of
peripheral, nonessential, or speculative information.
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.
<DELETED>, if a Federal court determines that the party seeking to
compel disclosure under this section has exhausted reasonable efforts
to obtain the information from alternative sources.
</DELETED> (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.
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--
(1) death;
(2) kidnapping; or
(3) substantial bodily harm.
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 <DELETED>a specific case of</DELETED>--
(1) <DELETED>terrorism against the United States</DELETED>
an act of terrorism; or
(2) <DELETED>significant harm</DELETED> 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.
SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.
(a) Conditions for Compelled Disclosure.--<DELETED>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</DELETED> 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 <DELETED>the</DELETED>
a 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 Federal
court may compel the testimony or disclosure of a document
<DELETED>under</DELETED> described in this section only after the party
seeking <DELETED>such a</DELETED> such testimony or document provides
the covered person who is a party to the <DELETED>business transaction</DELETED>
communication 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
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 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.
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, <DELETED>communication data, documents, or
information</DELETED> other information, or contents of a
communication obtained without a promise or agreement that such
records, <DELETED>communication data, documents, or information
</DELETED> other information, or contents of a communication
would be confidential.
SEC. 8. 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)).
<DELETED> (2) Covered person.--The term ``covered person''
means a person who is engaged in journalism and includes a
supervisor, employer, parent, subsidiary, or affiliate of such
person.</DELETED>
(2) Covered person.--The term ``covered person''--
(A) means a person who is engaged in journalism;
(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--
(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 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 Number 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); 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)).
(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) 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.
(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, <DELETED>communications data</DELETED>
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, <DELETED>communication data</DELETED>
contents of a communication, documents, or
information would be confidential.
Calendar No. 434
110th CONGRESS
1st Session
S. 2035
_______________________________________________________________________
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.
_______________________________________________________________________
October 22, 2007
Reported with amendments