II 110th CONGRESS 1st Session S. 1267 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.

1.

Short title

This Act may be cited as the Free Flow of Information Act of 2007.

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.

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.

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.