[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1267 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 1267

  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

                              May 2, 2007

  Mr. Lugar (for himself, Mr. Dodd, Mr. Graham, Mr. Domenici, and Ms. 
   Landrieu) 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 
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 related to information possessed by such covered person as 
part of engaging in journalism, unless a 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 person other than 
                the 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 or prosecution 
                        or to the defense against the prosecution; or
                    (B) in a matter other than a criminal investigation 
                or prosecution, based on information obtained from a 
                person other than the covered person, the testimony or 
                document sought is essential to the successful 
                completion of the matter;
            (3) in the case that 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 with the objective to prevent such 
                harm;
                    (B) disclosure of the identity of such a source is 
                necessary to prevent imminent death or significant 
                bodily harm with the objective to prevent such death or 
                harm, respectively; or
                    (C) disclosure of the identity of such a source is 
                necessary to identify a person who has disclosed--
                            (i) a trade secret of significant value in 
                        violation of a State or Federal law;
                            (ii) individually identifiable health 
                        information, as such term is defined in section 
                        1171(6) of the Social Security Act (42 U.S.C. 
                        1320d(6)), in violation of Federal law; or
                            (iii) nonpublic personal information, as 
                        such term is defined in section 509(4) of the 
                        Gramm-Leach-Biley Act (15 U.S.C. 6809(4)), of 
                        any consumer in violation of Federal law; and
            (4) 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. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

    (a) Conditions for Compelled Disclosure.--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 to such testimony or document if sought from the 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 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 involved determines by clear 
and convincing evidence that such notice would pose a substantial 
threat to the integrity of a criminal investigation.

SEC. 4. 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 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 
        person engaged in journalism and includes a supervisor, 
        employer, parent, subsidiary, or affiliate of such covered 
        person.
            (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 issue other compulsory process.
            (5) Journalism.--The term ``journalism'' means the 
        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.
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