Calendar No. 225 111th CONGRESS 1st Session

S. 448

IN THE SENATE OF THE UNITED STATES

February 13, 2009

Mr. Specter (for himself, Mr. Schumer, Mr. Lugar, Mr. Graham, Mrs. Gillibrand, Mrs. McCaskill, Mrs. Murray, Ms. Klobuchar, Mrs. Hagan, Mr. Kaufman, and Mr. Udall of New Mexico) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

December 11, 2009

Reported by Mr. Leahy, with an amendment

Strike out all after the enacting clause and insert the part printed in italic

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.

Short title

This Act may be cited as the

Free Flow of Information Act of 2009

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.

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.

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.

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.

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.

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.

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.

Short title

This Act may be cited as the

Free Flow of Information Act of 2009

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 comply with a subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information, unless a Federal court in the jurisdiction where the subpoena, court order, or other compulsory legal process has been or would be issued determines, after providing notice and an opportunity to be heard to such covered person— (1)that the party seeking to compel disclosure of the protected information has exhausted all reasonable alternative sources (other than a covered person) of the protected information; and (2)that— (A)in a criminal investigation or prosecution— (i)if the party seeking to compel disclosure is the Federal Government, based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that a crime has occurred; (ii)based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution; (iii)the Attorney General certifies that the decision to request compelled disclosure was made in a manner consistent with section 50.10 of title 28, Code of Federal Regulations, if compelled disclosure is sought by a member of the Department of Justice in circumstances governed by section 50.10 of title 28, Code of Federal Regulations; and (iv)the covered person has not established by clear and convincing evidence that disclosure of the protected information would be contrary to the public interest, taking into account both the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information and the public interest in compelling disclosure (including the extent of any harm to national security); or (B)in a matter other than a criminal investigation or prosecution, based on public information or information obtained from a source other than the covered person— (i)the protected information sought is essential to the resolution of the matter; and (ii)the party seeking to compel disclosure of the protected information has established that the interest in compelling disclosure clearly outweighs the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information. (b)

Limitations on content of information

A subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information under subsection (a) shall, to the extent possible, be narrowly tailored in purpose, subject matter, and period of time covered so as to avoid compelling disclosure of peripheral, nonessential, or speculative information.

Exception relating to criminal 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, or obtained during the course of, alleged criminal conduct by the covered person, including any physical evidence or visual or audio recording of the conduct. (b)

Exception

This section shall not apply, and, subject to sections 4 and 5, section 2 shall apply, if the alleged criminal conduct is the act of communicating the documents or information at issue.

Exception to prevent death, kidnapping, substantial bodily injury, sex offenses against minors, or incapacitation or destruction of critical infrastructure

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; (3)substantial bodily harm; (4)conduct that constitutes a criminal offense that is a specified offense against a minor (as those terms are defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911)), or an attempt or conspiracy to commit such a criminal offense; or (5)incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the USA PATRIOT Act (42 U.S.C. 5195c(e))).

Exception to prevent terrorist activity or harm to the national security

(a)

In general

Section 2 shall not apply to any protected information if— (1)the party seeking to compel disclosure is the Federal Government; and (2)(A)in a criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information, the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would materially assist the Federal Government in preventing or mitigating— (i)an act of terrorism; or (ii)other acts that are reasonably likely to cause significant and articulable harm to national security; or (B)in any other criminal investigation or prosecution, the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would materially assist the Federal Government in preventing, mitigating, or identifying the perpetrator of— (i)an act of terrorism; or (ii)other acts that have caused or are reasonably likely to cause significant and articulable harm to national security. (b)

Deference

In assessing the existence or extent of the harm described in subsection (a), a Federal court shall give appropriate deference to a specific factual showing submitted to the court by the head of any executive branch agency or department concerned. (c)

Relationship to section 2

Subsection (a) shall not apply, and, subject to sections 3 and 4, section 2 shall apply, to any criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information other than one in which the protected information is sought by the Federal Government to prevent or mitigate the harm specified in subsection (a)(2)(A). In considering the extent of any harm to national security when applying section 2 to such cases, a Federal court shall give appropriate deference to any specific factual showing submitted to the court by the head of any executive branch agency or department concerned. (d)

Subsequent unlawful disclosure

The potential for a subsequent unlawful disclosure of information by the source sought to be identified shall not, by itself and without any showing of additional facts beyond such potential disclosure, be sufficient to establish that compelled disclosure of the protected information would materially assist the Federal Government in preventing or mitigating— (1)an act of terrorism; or (2)other acts that are reasonably likely to cause significant and articulable harm to national security.

Compelled disclosure from communications service providers

(a)

Conditions for compelled disclosure

(1)

In general

Except as provided in paragraph (2), if any document or other information from the account of a person who is known to be, or reasonably likely to be, a covered person is sought from a communications service provider, sections 2 through 5 shall apply in the same manner that such sections apply to any document or other information sought from a covered person. (2)

Exception

If any document or other information from the account of a person who is known to be, or reasonably likely to be, a covered person is sought from a communications service provider under section 2709 of title 18, United States Code, the provisions of sections 2 through 5 governing criminal investigations and prosecutions shall apply in the same manner that such sections apply to any document or other information sought from a covered person in the course of a criminal investigation or prosecution, except that clauses (i) and (iii) of section 2(a)(2)(A) and the phrase particularly with reference to directly establishing guilt or innocence in section 2(a)(2)(A)(ii) shall not apply. (b)

Notice and opportunity provided to covered persons

A Federal court may compel the disclosure of a document or other information described in this section only after the covered person from whose account the document or other information is sought has been given— (1)notice from the party seeking the document or other information through a subpoena or other compulsory request, 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 Federal court involved determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation, a national security investigation, or intelligence gathering, or that exigent circumstances exist. 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. (d)

Notice to communications service provider

In all cases in which notice is required to be provided to the covered person under this section, a copy of such notice shall be provided simultaneously to the communications service provider from whom disclosure is sought. Once it has received such notice, the communications service provider shall not comply with the request for disclosure unless and until disclosure is either ordered by the court or authorized in writing by the covered person.

Sources and work product produced without promise or agreement of confidentiality

Procedures for review and appeal

(a)

Conditions for ex parte review or submissions under seal

With regard to any determination made by a Federal court under this Act, upon a showing of good cause, that Federal court may receive and consider submissions from the parties in camera or under seal, and if the court determines it is necessary, ex parte. (b)

Contempt of court

With regard to any determination made by a Federal court under this Act, a Federal court may find a covered person to be in civil or criminal contempt if the covered person fails to comply with an order of a Federal court compelling disclosure of protected information. (c)

To provide for timely determination

With regard to any determination to be made by a Federal court under this Act, that Federal court, to the extent practicable, shall make that determination not later than 30 days after the date of receiving a motion requesting the court make that determination. (d)

Expedited appeal process

(1)

In general

The courts of appeal shall have jurisdiction— (A)of appeals by a Federal entity or covered person of an interlocutory order of a Federal court under this Act; and (B)in an appeal of a final decision of a Federal court by a Federal entity or covered person, to review any determination of a Federal court under this Act. (2)

Expedition of appeals

It shall be the duty of a Federal court to which an appeal is made under this subsection to advance on the docket and to expedite to the greatest possible extent the disposition of that appeal.

Rule of construction

Nothing in this Act may be construed to— (1)preempt any law or claim relating to defamation, slander, or libel; (2)modify the requirements of section 552a of title 5, United States Code, or Federal laws or rules relating to grand jury secrecy (except that this Act shall apply in any proceeding and in connection with any issue arising under that section or the Federal laws or rules relating to grand jury secrecy); (3)create new obligations, or affect or modify the authorities or obligations of a Federal entity with respect to the acquisition or dissemination of information pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); or (4)preclude voluntary disclosure of information to a Federal entity in a situation that is not governed by this Act.

10.

Audit

(a)

In general

The Inspector General of the Department of Justice shall perform a comprehensive audit of the use of this Act during the period beginning on the date of enactment of this Act and ending on December 31, 2012. The audit shall include an examination of each instance in which a court failed to compel the disclosure of protected information under this Act, and whether this Act has created any procedural impediments that have had a detrimental operational impact on the activities of the Federal Bureau of Investigation. (b)

Report

Not later than June 30, 2013, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under subsection (a). (c)

Review

Not later than 30 days before the submission of the report under subsection (b), the Inspector General of the Department of Justice shall provide the report to the Attorney General and the Director of National Intelligence. The Attorney General or the Director of National Intelligence may provide such comments to be included in the report submitted under subsection (b) as the Attorney General or the Director of National Intelligence may consider necessary. (d)

Form

The report submitted under subsection (b) and any comments included under subsection (c) shall be in unclassified form, but may include a classified annex.

11.

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— (i)with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by— (I)conducting interviews; (II)making direct observation of events; or (III)collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form; (ii)has such intent at the inception of the process of gathering the news or information sought; and (iii)obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means; (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 or is reasonably likely to be— (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 member or affiliate of 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); (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)); (vi)committing or attempting to commit the crime of terrorism, as that offense is defined in section 2331(5) or 2332b(g)(5) of title 18, United States Code; (vii)committing or attempting the crime of providing material support, as that term is defined in section 2339A(b)(1) of title 18, United States Code, to a terrorist organization; or (viii)aiding, abetting, or conspiring in illegal activity with a person or organization defined in clauses (i) through (vii). (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

Properly classified information

The term properly classified information means information that is classified in accordance with any applicable Executive Orders, statutes, or regulations regarding classification of information. (6)

Protected information

December 11, 2009

Reported with an amendment