[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1419 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1419

  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

                             July 18, 2005

Mr. Lugar (for himself, Mr. Dodd, Mr. Nelson of Florida, Mr. Jeffords, 
and Mr. Lautenberg) 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 
2005''.

SEC. 2. CONDITIONS FOR COMPELLED DISCLOSURE.

    (a) Conditions for Compelled Disclosure.--A Federal entity may not 
compel a covered person to testify or produce any document in any 
proceeding or in connection with any issue arising under Federal law 
unless a court determines by clear and convincing evidence, after 
providing notice and an opportunity to be heard to the covered person--
            (1) that the party seeking to compel production of such 
        testimony or document has unsuccessfully attempted to obtain 
        such testimony or document from all persons from which such 
        testimony or document could reasonably be obtained other than a 
        covered person;
            (2) that--
                    (A) in a criminal investigation or prosecution, 
                based on information obtained from a person other than 
                a covered person--
                            (i) there are reasonable grounds to believe 
                        that a crime has occurred; and
                            (ii) the testimony or document sought is 
                        essential to the investigation, prosecution, or 
                        defense; or
                    (B) in a matter other than a criminal investigation 
                or prosecution, based on information obtained from a 
                person other than a covered person, the testimony or 
                document sought is essential to a dispositive issue of 
                substantial importance to that matter; and
            (3) in any matter in which 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 imminent and actual harm to 
                national security;
                    (B) compelled disclosure of the identity of such a 
                source would prevent such harm; and
                    (C) the harm sought to be redressed by requiring 
                disclosure clearly outweighs the public interest in 
                protecting 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.

SEC. 3. COMPELLED DISCLOSURE PERMITTED.

    Notwithstanding any provision of section 2, in any proceeding or in 
connection with any issue arising under Federal law, a Federal entity 
may compel a covered person to produce any testimony or document that 
consists only of commercial or financial information that is not 
related to news gathering or the dissemination of news and information 
by the covered person.

SEC. 4. COMPELLED DISCLOSURE FROM THIRD PARTIES.

    (a) Conditions for Compelled Disclosure.--Section 2 shall apply to 
any testimony or document that a third party or a Federal entity seeks 
from a communications service provider if such testimony or document 
consists of any record, information, or other communication that 
relates to a business transaction between a communications service 
provider and 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 determines by clear and 
convincing evidence that such notice would pose a substantial threat to 
the integrity of a criminal investigation.

SEC. 5. 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 the 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) an entity that disseminates information by 
                print, broadcast, cable, satellite, mechanical, 
                photographic, electronic, or other means and that--
                            (i) publishes a newspaper, book, magazine, 
                        or other periodical in print or electronic 
                        form;
                            (ii) operates a radio or television 
                        broadcast station (or network of such 
                        stations), cable system, or satellite carrier, 
                        or a channel or programming service for any 
                        such station, network, system, or carrier; or
                            (iii) operates a news agency or wire 
                        service;
                    (B) a parent, subsidiary, or affiliate of such an 
                entity to the extent that such parent, subsidiary, or 
                affiliate is engaged in news gathering or the 
                dissemination of news and information; or
                    (C) an employee, contractor, or other person who 
                gathers, edits, photographs, records, prepares, or 
                disseminates news or information for such an entity.
            (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 provide other compulsory process.
            (5) Third party.--The term ``third party'' means a person 
        other than a covered person.
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