[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 448 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 448

  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 13, 2009

   Mr. Specter (for himself, Mr. Schumer, Mr. Lugar, and Mr. Graham) 
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 
2009''.

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, relating to protected information, unless a Federal 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 source other than 
                the covered person--
                            (i) there are reasonable grounds to believe 
                        that a crime has occurred;
                            (ii) the testimony or document sought is 
                        essential to the investigation or prosecution 
                        or to the defense against the prosecution; and
                            (iii) in a criminal investigation or 
                        prosecution of an unauthorized disclosure of 
                        properly classified information by a person 
                        with authorized access to such information, 
                        such unauthorized disclosure has caused or will 
                        cause significant and articulable harm to the 
                        national security; or
                    (B) in a matter other than a criminal investigation 
                or prosecution, based on information obtained from a 
                source other than the covered person, the testimony or 
                document sought is essential to the resolution of the 
                matter; and
            (3) 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. EXCEPTION RELATING TO CRIMINAL OR TORTIOUS CONDUCT.

    (a) In General.--Section 2 shall not apply to any information, 
record, document, or item obtained as the result of the eyewitness 
observations of alleged criminal conduct or commitment of alleged 
criminal or tortious conduct by the covered person, including any 
physical evidence or visual or audio recording of the observed conduct.
    (b) Exception.--This section shall not apply, and section 2 shall 
apply, if the alleged criminal or tortious conduct is the act of 
communicating the documents or information at issue.

SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, OR SUBSTANTIAL BODILY 
              INJURY.

    Section 2 shall not apply to any protected information that is 
reasonably necessary to stop, prevent, or mitigate a specific case of--
            (1) death;
            (2) kidnapping; or
            (3) substantial bodily harm.

SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE NATIONAL 
              SECURITY.

    Section 2 shall not apply to any protected information that a 
Federal court has found by a preponderance of the evidence would assist 
in preventing--
            (1) an act of terrorism; or
            (2) other significant and articulable harm to national 
        security that would outweigh the public interest in 
        newsgathering and maintaining a free flow of information to 
        citizens.

SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

    (a) Conditions for Compelled Disclosure.--With respect to testimony 
that relates to a communication to which a covered person is a party or 
any document that consists of any record or other information relating 
to a communication to which a covered person is a party, or that 
contains the contents of a communication to which a covered person is a 
party, 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 Federal 
court may compel the testimony or disclosure of a document described in 
this section only after the party seeking such testimony or document 
provides the covered person who is a party to the communication 
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 
        compelling testimony or the disclosure of a document.
    (c) Exception to Notice Requirement.--Notice under subsection 
(b)(1) may be delayed for not more than 45 days 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. This 
period may be extended by the court for an additional period of not 
more than 45 days each time the court makes such a determination.

SEC. 7. 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 covered 
person or communications service provider of--
            (1) information identifying a source who provided 
        information without a promise or agreement of confidentiality 
        made by the covered person as part of engaging in journalism; 
        or
            (2) records, other information, or contents of a 
        communication obtained without a promise or agreement that such 
        records, other information, or contents of a communication 
        would be confidential.

SEC. 8. 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 section 3 or 230 of the 
                Communications Act of 1934 (47 U.S.C. 153 and 230)).
            (2) Covered person.--The term ``covered person''--
                    (A) means a person who is engaged in journalism;
                    (B) includes a supervisor, employer, parent 
                company, subsidiary, or affiliate of a person described 
                in subparagraph (A); and
                    (C) does not include any person who is--
                            (i) a foreign power or an agent of a 
                        foreign power, as those terms are defined in 
                        section 101 of the Foreign Intelligence 
                        Surveillance Act of 1978 (50 U.S.C. 1801);
                            (ii) a foreign terrorist organization 
                        designated under section 219(a) of the 
                        Immigration and Nationality Act (8 U.S.C. 
                        1189(a));
                            (iii) designated as a Specially Designated 
                        Global Terrorist by the Department of the 
                        Treasury under Executive Order Number 13224 (50 
                        U.S.C. 1701);
                            (iv) a specially designated terrorist, as 
                        that term is defined in section 595.311 of 
                        title 31, Code of Federal Regulations (or any 
                        successor thereto); or
                            (v) a terrorist organization, as that term 
                        is defined in section 212(a)(3)(B)(vi)(II) of 
                        the Immigration and Nationality Act (8 U.S.C. 
                        1182(a)(3)(B)(vi)(II)).
            (3) Document.--The term ``document'' means writings, 
        recordings, and photographs, as those terms are defined by rule 
        1001 of the Federal Rules of Evidence (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 regular 
        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.
            (6) Protected information.--The term ``protected 
        information'' means--
                    (A) information identifying a source who provided 
                information under a promise or agreement of 
                confidentiality made by a covered person as part of 
                engaging in journalism; or
                    (B) any records, contents of a communication, 
                documents, or information that a covered person 
                obtained or created--
                            (i) as part of engaging in journalism; and
                            (ii) upon a promise or agreement that such 
                        records, contents of a communication, 
                        documents, or information would be 
                        confidential.
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