[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 340 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 340

  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

                            February 9, 2005

   Mr. Lugar 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.--No Federal entity may 
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 entity 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; and
            (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.
    (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. COMMERCIAL OR FINANCIAL INFORMATION.

    The provisions of section 2 do not apply to a request by a Federal 
entity for any testimony or document that consists of only commercial 
or financial information unrelated to newsgathering or news and 
information dissemination by a covered person.

SEC. 4. COMPELLED DISCLOSURE PROHIBITED.

     Notwithstanding any provision of section 2, in any proceeding or 
in connection with any issue arising under Federal law, no Federal 
entity may compel a covered person to disclose--
            (1) the identity of a source of information--
                    (A) from whom the covered person obtained 
                information; and
                    (B) who the covered person believes to be a 
                confidential source; or
            (2) any information that could reasonably be expected to 
        lead to the discovery of the identity of such a source.

SEC. 5. COMPELLED DISCLOSURE FROM THIRD PARTIES.

    (a) Conditions for Compelled Disclosure.--The provisions of 
sections 2, 3, and 4 shall apply to any testimony or document that a 
Federal entity seeks from a third party if such testimony or document 
consists of any record, information, or other communication that 
relates to a business transaction between such third party and a 
covered person. Such record, information, or other communication 
includes any telephone record or other record held by a 
telecommunications service provider, Internet service provider, or 
operator of an interactive computer service for a business purpose.
    (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 third party not later 
        than the time at which such subpoena or request is issued to 
        the third party; 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. 6. ACTIVITIES NOT CONSTITUTING A WAIVER.

    The publication or dissemination of any testimony or document (or 
portion of such testimony or document) sought under section 2 shall not 
waive the requirements of such section. The publication or 
dissemination of any testimony or document (or portion of such 
testimony or document), identity, or information described in section 4 
shall not waive the prohibition described in such section.

SEC. 7. DEFINITIONS.

    In this Act:
            (1) 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;
                            (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; or
                    (C) an employee, contractor, or other person who 
                gathers, edits, photographs, records, prepares, or 
                disseminates news or information for such an entity.
            (2) 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.).
            (3) Federal entity.--The term ``Federal entity'' means an 
        entity or employee of the judicial, legislative, or executive 
        branch of the Federal Government with the power to issue a 
        subpoena or provide other compulsory process.
            (4) Third party.--The term ``third party'' means a person 
        other than a covered person.
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