[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2831 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2831

To guarantee the free flow of information to the public through a free 
and active press while protecting the right of the public to effective 
        law enforcement and the fair administration of justice.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 18, 2006

  Mr. Lugar (for himself, Mr. Specter, Mr. Dodd, Mr. Graham, and Mr. 
   Schumer) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To guarantee the free flow of information to the public through a free 
and active press while protecting the right of the public to effective 
        law enforcement and the fair administration of justice.

    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 
2006''.

SEC. 2. PURPOSE.

    The purpose of this Act is to guarantee the free flow of 
information to the public through a free and active press as the most 
effective check upon Government abuse, while protecting the right of 
the public to effective law enforcement and the fair administration of 
justice.

SEC. 3. DEFINITIONS.

    In this Act--
            (1) the term ``attorney for the United States'' means the 
        Attorney General, any United States Attorney, Department of 
        Justice prosecutor, special prosecutor, or other officer or 
        employee of the United States in the executive branch of 
        Government or any independent regulatory agency with the 
        authority to obtain a subpoena or other compulsory process;
            (2) the term ``communication 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 and 230)); 
                and
            (3) the term ``journalist'' means a person who, for 
        financial gain or livelihood, is engaged in gathering, 
        preparing, collecting, photographing, recording, writing, 
        editing, reporting, or publishing news or information as a 
        salaried employee of or independent contractor for a newspaper, 
        news journal, news agency, book publisher, press association, 
        wire service, radio or television station, network, magazine, 
        Internet news service, or other professional medium or agency 
        which has as 1 of its regular functions the processing and 
        researching of news or information intended for dissemination 
        to the public.

SEC. 4. COMPELLED DISCLOSURE AT THE REQUEST OF ATTORNEYS FOR THE UNITED 
              STATES IN CRIMINAL PROCEEDINGS.

    (a) In General.--Except as provided in subsection (b), in any 
criminal investigation or prosecution, a Federal court may not, upon 
the request of an attorney for the United States, compel a journalist, 
any person who employs or has an independent contract with a 
journalist, or a communication service provider to disclose--
            (1) information identifying a source who provided 
        information under a promise or agreement of confidentiality 
        made by the journalist while acting in a professional 
        newsgathering capacity; or
            (2) any records, communication data, documents, or 
        information that the journalist obtained or created while 
        acting in a professional newsgathering capacity and upon a 
        promise or agreement that such records, communication data, 
        documents, or information would be confidential.
    (b) Disclosure.--Compelled disclosures otherwise prohibited under 
subsection (a) may be ordered only if a court, after providing the 
journalist, or any person who employs or has an independent contract 
with a journalist, notice and an opportunity to be heard, determines by 
clear and convincing evidence that--
            (1) the attorney for the United States has exhausted 
        alternative sources of the information;
            (2) to the extent possible, the subpoena--
                    (A) avoids requiring production of a large volume 
                of unpublished material; and
                    (B) is limited to--
                            (i) the verification of published 
                        information; and
                            (ii) surrounding circumstances relating to 
                        the accuracy of the published information;
            (3) the attorney for the United States has given reasonable 
        and timely notice of a demand for documents;
            (4) 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 
        newsgathering and maintaining a free flow of information to 
        citizens;
            (5) there are reasonable grounds, based on an alternative, 
        independent source, to believe that a crime has occurred, and 
        that the information sought is critical to the investigation or 
        prosecution, particularly with respect to directly establishing 
        guilt or innocence; and
            (6) the subpoena is not being used to obtain peripheral, 
        nonessential, or speculative information.

SEC. 5. COMPELLED DISCLOSURE AT THE REQUEST OF CRIMINAL DEFENDANTS.

    (a) In General.--Except as provided in subsection (b), a Federal 
court may not, upon the request of a criminal defendant, compel a 
journalist, any person who employs or has an independent contract with 
a journalist, or a communication service provider to disclose--
            (1) information identifying a source who provided 
        information under a promise or agreement of confidentiality 
        made by the journalist while acting in a professional 
        newsgathering capacity; or
            (2) any records, communication data, documents, or 
        information that the journalist obtained or created while 
        acting in a professional newsgathering capacity and under a 
        promise or agreement that such records, communication data, 
        documents, or information would be confidential.
    (b) Disclosure.--Compelled disclosures otherwise prohibited under 
subsection (a) may be ordered only if a court, after providing the 
journalist, or any person who employs or has an independent contract 
with a journalist, notice and an opportunity to be heard, determines by 
clear and convincing evidence that--
            (1) the criminal defendant has exhausted alternative 
        sources of the information;
            (2) there are reasonable grounds, based on an alternative 
        source, to believe that the information sought is directly 
        relevant to the question of guilt or innocence or to a fact 
        that is critical to enhancement or mitigation of a sentence;
            (3) the subpoena is not being used to obtain peripheral, 
        nonessential, or speculative information; and
            (4) nondisclosure of the information would be contrary to 
        the public interest, taking into account the public interest in 
        compelling disclosure, the defendant's interest in a fair 
        trial, and the public interest in newsgathering and in 
        maintaining the free flow of information.

SEC. 6. CIVIL LITIGATION.

    (a) In General.--Except as provided in subsection (b), in any civil 
action, a Federal court may not compel a journalist, any person who 
employs or has an independent contract with a journalist, or a 
communication service provider to disclose--
            (1) information identifying a source who provided 
        information under a promise or agreement of confidentiality 
        made by the journalist while acting in a professional 
        newsgathering capacity; or
            (2) any records, communication data, documents, or 
        information that the journalist obtained or created while 
        acting in a professional newsgathering capacity and upon a 
        promise or agreement that such records, communication data, 
        documents, or information would be confidential.
    (b) Disclosure.--Compelled disclosures otherwise prohibited under 
(a) may be ordered only if a court, after providing the journalist, or 
any person who employs or has an independent contract with a 
journalist, notice and an opportunity to be heard, determines by clear 
and convincing evidence that--
            (1) the party seeking the information has exhausted 
        alternative sources of the information;
            (2) the information sought is critical to the successful 
        completion of the civil action;
            (3) 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 
        newsgathering and in maintaining the free flow of information 
        to the widest possible degree about all matters that enter the 
        public sphere;
            (4) the subpoena is not being used to obtain peripheral, 
        nonessential, or speculative information;
            (5) to the extent possible, the subpoena--
                    (A) avoids requiring production of a large volume 
                of unpublished material; and
                    (B) is limited to--
                            (i) the verification of published 
                        information; and
                            (ii) surrounding circumstances relating to 
                        the accuracy of the published information; and
            (6) the party seeking the information has given reasonable 
        and timely notice of the demand for documents.

SEC. 7. EXCEPTION FOR JOURNALIST'S EYEWITNESS OBSERVATIONS OR 
              PARTICIPATION IN CRIMINAL OR TORTIOUS CONDUCT.

    Notwithstanding sections 1 through 6, a journalist, any person who 
employs or has an independent contract with a journalist, or a 
communication service provider has no privilege against disclosure of 
any information, record, document, or item obtained as the result of 
the eyewitness observations of criminal conduct or commitment of 
criminal or tortious conduct by the journalist, including any physical 
evidence or visual or audio recording of the observed conduct, if a 
court determines by clear and convincing evidence that the party 
seeking to compel disclosure under this section has exhausted 
reasonable efforts to obtain the information from alternative sources. 
This section does not apply if the alleged criminal or tortious conduct 
is the act of communicating the documents or information at issue.

SEC. 8. EXCEPTION TO PREVENT DEATH OR SUBSTANTIAL BODILY INJURY.

    Notwithstanding sections 1 through 6, a journalist, any person who 
employs or has an independent contract with a journalist, or 
communication service provider has no privilege against disclosure of 
any information to the extent such information is reasonably necessary 
to stop or prevent reasonably certain--
            (1) death; or
            (2) substantial bodily harm.

SEC. 9. EXCEPTION FOR NATIONAL SECURITY INTEREST.

    (a) In General.--Notwithstanding sections 1 through 6, a 
journalist, any person who employs or has an independent contract with 
a journalist, or communication service provider has no privilege 
against disclosure of any records, communication data, documents, 
information, or items described in sections 4(a), 5(a), or 6(a) sought 
by an attorney for the United States by subpoena, court order, or other 
compulsory process, if a court has provided the journalist, or any 
person who employs or has an independent contract with a journalist, 
notice and an opportunity to be heard, and determined by clear and 
convincing evidence, that--
            (1) disclosure of information identifying the source is 
        necessary to prevent an act of terrorism or to prevent 
        significant and actual harm to the national security, and the 
        value of the information that would be disclosed clearly 
        outweighs the harm to the public interest and the free flow of 
        information that would be caused by compelling the disclosure; 
        or
            (2) in a criminal investigation or prosecution of an 
        unauthorized disclosure of properly classified Government 
        information by an employee of the United States, such 
        unauthorized disclosure has seriously damaged the national 
        security, alternative sources of the information identifying 
        the source have been exhausted, and the harm caused by the 
        unauthorized disclosure of properly classified Government 
        information clearly outweighs the value to the public of the 
        disclosed information.
    (b) Rule of Construction.--Nothing in this Act shall be construed 
to limit any authority of the Government under the Foreign Intelligence 
Surveillance Act (50 U.S.C. 1801 et seq.).

SEC. 10. JOURNALIST'S 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 journalist, 
any person who employs or has an independent contract with a 
journalist, or a communications service provider of--
            (1) information identifying a source who provided 
        information without a promise or agreement of confidentiality 
        made by the journalist while acting in a professional 
        newsgathering capacity; or
            (2) records, communication data, documents, or information 
        obtained without a promise or agreement that such records, 
        communication data, documents, or information would be 
        confidential.
                                 <all>