II 109th CONGRESS 1st Session S. 340 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.

1.

Short title

This Act may be cited as the Free Flow of Information Act of 2005.

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.

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.

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.

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.

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.

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.