[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 987 Reported in Senate (RS)]

                                                       Calendar No. 238
113th CONGRESS
  1st Session
                                 S. 987

                          [Report No. 113-118]

  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 16, 2013

 Mr. Schumer (for himself, Mr. Graham, Mr. Tester, Ms. Klobuchar, Mr. 
 Harkin, Mr. Bennet, Mrs. Murray, Mr. Udall of New Mexico, Mr. Baucus, 
Ms. Cantwell, Mrs. Boxer, Mr. Isakson, Ms. Baldwin, Mr. Blumenthal, Mr. 
Blunt, Mrs. Gillibrand, Mrs. McCaskill, Mr. Coons, Ms. Hirono, and Mr. 
Leahy) introduced the following bill; which was read twice and referred 
                   to the Committee on the Judiciary

                            November 6, 2013

                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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Free Flow of Information 
Act of 2013''.</DELETED>

<DELETED>SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.</DELETED>

<DELETED>    (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--</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (2) that--</DELETED>
                <DELETED>    (A) in a criminal investigation or 
                prosecution--</DELETED>
                        <DELETED>    (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;</DELETED>
                        <DELETED>    (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;</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (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</DELETED>
                <DELETED>    (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--</DELETED>
                        <DELETED>    (i) the protected information 
                        sought is essential to the resolution of the 
                        matter; and</DELETED>
                        <DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 3. EXCEPTION RELATING TO CRIMINAL CONDUCT.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, SUBSTANTIAL 
              BODILY INJURY, SEX OFFENSES AGAINST MINORS, OR 
              INCAPACITATION OR DESTRUCTION OF CRITICAL 
              INFRASTRUCTURE.</DELETED>

<DELETED>    Section 2 shall not apply to any protected information 
that is reasonably necessary to stop, prevent, or mitigate a specific 
case of--</DELETED>
        <DELETED>    (1) death;</DELETED>
        <DELETED>    (2) kidnapping;</DELETED>
        <DELETED>    (3) substantial bodily harm;</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (5) incapacitation or destruction of critical 
        infrastructure (as defined in section 1016(e) of the USA 
        PATRIOT Act (42 U.S.C. 5195c(e))).</DELETED>

<DELETED>SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE 
              NATIONAL SECURITY.</DELETED>

<DELETED>    (a) In General.--Section 2 shall not apply to any 
protected information if--</DELETED>
        <DELETED>    (1) the party seeking to compel disclosure is the 
        Federal Government; and</DELETED>
        <DELETED>    (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--</DELETED>
                        <DELETED>    (i) an act of terrorism; 
                        or</DELETED>
                        <DELETED>    (ii) other acts that are 
                        reasonably likely to cause significant and 
                        articulable harm to national security; 
                        or</DELETED>
        <DELETED>    (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--
        </DELETED>
                <DELETED>    (i) an act of terrorism; or</DELETED>
                <DELETED>    (ii) other acts that have caused or are 
                reasonably likely to cause significant and articulable 
                harm to national security.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (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--
</DELETED>
        <DELETED>    (1) an act of terrorism; or</DELETED>
        <DELETED>    (2) other acts that are reasonably likely to cause 
        significant and articulable harm to national 
        security.</DELETED>

<DELETED>SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE 
              PROVIDERS.</DELETED>

<DELETED>    (a) Conditions for Compelled Disclosure.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (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--</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (2) an opportunity to be heard before the court 
        before compelling testimony or the disclosure of a 
        document.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 7. SOURCES AND WORK PRODUCT PRODUCED WITHOUT PROMISE OR 
              AGREEMENT OF CONFIDENTIALITY.</DELETED>

<DELETED>    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--</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (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.</DELETED>

<DELETED>SEC. 8. PROCEDURES FOR REVIEW AND APPEAL.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (d) Expedited Appeal Process.--</DELETED>
        <DELETED>    (1) In general.--The courts of appeal shall have 
        jurisdiction--</DELETED>
                <DELETED>    (A) of appeals by a Federal entity or 
                covered person of an interlocutory order of a Federal 
                court under this Act; and</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>

<DELETED>SEC. 9. RULE OF CONSTRUCTION.</DELETED>

<DELETED>    Nothing in this Act may be construed to--</DELETED>
        <DELETED>    (1) preempt any law or claim relating to 
        defamation, slander, or libel;</DELETED>
        <DELETED>    (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);</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (4) preclude voluntary disclosure of information 
        to a Federal entity in a situation that is not governed by this 
        Act.</DELETED>

<DELETED>SEC. 10. AUDIT.</DELETED>

<DELETED>    (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, 2016. 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.</DELETED>
<DELETED>    (b) Report.--Not later than June 30, 2017, 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).</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 11. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) Communications service provider.--The term 
        ``communications service provider''--</DELETED>
                <DELETED>    (A) means any person that transmits 
                information of the customer's choosing by electronic 
                means; and</DELETED>
                <DELETED>    (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)).</DELETED>
        <DELETED>    (2) Covered person.--The term ``covered person''--
        </DELETED>
                <DELETED>    (A) means a person who--</DELETED>
                        <DELETED>    (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--
                        </DELETED>
                                <DELETED>    (I) conducting 
                                interviews;</DELETED>
                                <DELETED>    (II) making direct 
                                observation of events; or</DELETED>
                                <DELETED>    (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;</DELETED>
                        <DELETED>    (ii) has such intent at the 
                        inception of the process of gathering the news 
                        or information sought; and</DELETED>
                        <DELETED>    (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;</DELETED>
                <DELETED>    (B) includes a supervisor, employer, 
                parent company, subsidiary, or affiliate of a person 
                described in subparagraph (A); and</DELETED>
                <DELETED>    (C) does not include any person who is or 
                is reasonably likely to be--</DELETED>
                        <DELETED>    (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);</DELETED>
                        <DELETED>    (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));</DELETED>
                        <DELETED>    (iii) designated as a Specially 
                        Designated Global Terrorist by the Department 
                        of the Treasury under Executive Order No. 13224 
                        (50 U.S.C. 1701);</DELETED>
                        <DELETED>    (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);</DELETED>
                        <DELETED>    (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));</DELETED>
                        <DELETED>    (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;</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (viii) aiding, abetting, or 
                        conspiring in illegal activity with a person or 
                        organization defined in clauses (i) through 
                        (vii).</DELETED>
        <DELETED>    (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.).</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (5) 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.</DELETED>
        <DELETED>    (6) Protected information.--The term ``protected 
        information'' means--</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (B) any records, contents of a 
                communication, documents, or information that a covered 
                person obtained or created--</DELETED>
                        <DELETED>    (i) as part of engaging in 
                        journalism; and</DELETED>
                        <DELETED>    (ii) upon a promise or agreement 
                        that such records, contents of a communication, 
                        documents, or information would be 
                        confidential.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Free Flow of Information Act of 
2013''.

SEC. 2. COMPELLED DISCLOSURE FROM COVERED JOURNALISTS.

    (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 journalist to comply with a subpoena, court 
order, or other compulsory legal process seeking to compel the 
disclosure of protected information, unless a judge of the United 
States 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 
journalist--
            (1) that the party seeking to compel disclosure of the 
        protected information has exhausted all reasonable alternative 
        sources (other than a covered journalist) 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 journalist, 
                        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 journalist, 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 journalist 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 journalist--
                            (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.
    (c) Rule of Construction for Compelled Disclosure From Covered 
Journalists.--Nothing in this section shall be construed to preclude, 
in addition to the procedures required under this section--
            (1) the requirement that a Federal or governmental entity 
        shall obtain a warrant for certain communications, as set forth 
        in section 2703 of title 18, United States Code (commonly known 
        as the Electronic Communications Privacy Act); or
            (2) the requirements and procedures regarding search and 
        seizure set forth in Rule 41 of the Federal Rules of Criminal 
        Procedure.

SEC. 3. 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 journalist, 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.

SEC. 4. 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))).

SEC. 5. 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.

SEC. 6. COMPELLED DISCLOSURE FROM COVERED 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 
        journalist is sought from a covered 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 journalist.
            (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 journalist is sought from a covered 
        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 journalist in the course of a criminal 
        investigation or prosecution, except that clauses (i) and (iii) 
        of section 2(a)(2)(A) shall not apply.
    (b) Notice and Opportunity Provided to Covered Journalists.--A 
judge of the United States may compel the disclosure of a document or 
other information described in this section only after the covered 
journalist 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 covered service provider; and
            (2) an opportunity to be heard before the judge of the 
        United States before compelling testimony or the disclosure of 
        a document.
    (c) Exception to Notice Requirement.--
            (1) In general.--Notice and opportunity to be heard under 
        subsection (b) may be delayed for not more than 45 days if the 
        judge of the United States involved determines by clear and 
        convincing evidence that such notice would pose a clear and 
        substantial threat to the integrity of a criminal 
        investigation, would risk grave harm to national security, or 
        would present an imminent risk of death or serious bodily harm.
            (2) Extension.--The 45-day period described in paragraph 
        (1) may be extended by the court for 1 additional period of not 
        more than 45 days if the judge of the United States involved 
        makes a new and independent determination by clear and 
        convincing evidence that providing notice to the covered 
        journalist would pose a clear and substantial threat to the 
        integrity of a criminal investigation, would risk grave harm to 
        national security, or would present an imminent risk of death 
        or serious bodily harm under current circumstances.
            (3) Substantial threat to the integrity of a criminal 
        investigation.--For purposes of this subsection, a substantial 
        threat to the integrity of a criminal investigation exists when 
        the judge of the United States involved finds, by clear and 
        convincing evidence, that the target of the investigation may 
        learn of the investigation and destroy evidence if notice is 
        provided.
            (4) Protective orders.--For purposes of a determination 
        under this subsection, the judge of the United States involved 
        shall consider whether providing notice pursuant to a 
        protective order to the covered journalist may mitigate any 
        clear and substantial threat to the integrity of a criminal 
        investigation, any risk of grave harm to national security, or 
        any imminent risk of death or serious bodily harm.
    (d) Notice to Covered Service Provider.--In all cases in which 
notice is required to be provided to the covered journalist under this 
section, a copy of such notice shall be provided simultaneously to the 
covered service provider from whom disclosure is sought. Once it has 
received such notice, the covered 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 
journalist.
    (e) Rule of Construction for Delayed Notice.--The delayed notice 
requirements in this section shall be construed to supersede the 
requirements for delayed notice set forth in sections 2703 and 2705(a) 
of title 18, United States Code.

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 
journalist or covered service provider of--
            (1) information identifying a source who provided 
        information without a promise or agreement of confidentiality 
        made by the covered journalist 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. PROCEDURES FOR REVIEW AND APPEAL.

    (a) Conditions for Ex Parte Review or Submissions Under Seal.--With 
regard to any determination made by a judge of the United States under 
this Act, upon a showing of good cause, that judge of the United States 
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 
judge of the United States under this Act, a judge of the United States 
may find a covered journalist to be in civil or criminal contempt if 
the covered journalist fails to comply with an order of a judge of the 
United States compelling disclosure of protected information.
    (c) To Provide for Timely Determination.--With regard to any 
determination to be made by a judge of the United States under this 
Act, that judge of the United States, 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 
                journalist of an interlocutory order of a judge of the 
                United States under this Act; and
                    (B) in an appeal of a final decision of a judge of 
                the United States by a Federal entity or covered 
                journalist, to review any determination of a judge of 
                the United States 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.

SEC. 9. 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.

SEC. 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, 2016. 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, 2017, 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.

SEC. 11. DEFINITIONS.

    In this Act:
            (1) Covered journalist.--
                    (A) Definition.--The term ``covered journalist''--
                            (i)(I) means a person who--
                                    (aa) is, or on the relevant date, 
                                was, an employee, independent 
                                contractor, or agent of an entity or 
                                service that disseminates news or 
                                information by means of newspaper; 
                                nonfiction book; wire service; news 
                                agency; news website, mobile 
                                application or other news or 
                                information service (whether 
                                distributed digitally or otherwise); 
                                news program; magazine or other 
                                periodical, whether in print, 
                                electronic, or other format; or through 
                                television or radio broadcast, 
                                multichannel video programming 
                                distributor (as such term is defined in 
                                section 602(13) of the Communications 
                                Act of 1934 (47 U.S.C. 522(13)), or 
                                motion picture for public showing;
                                    (bb) 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, 
                                engages, or as of the relevant date 
                                engaged, in the regular gathering, 
                                preparation, collection, photographing, 
                                recording, writing, editing, reporting 
                                or publishing on such matters by--
                                            (AA) conducting interviews;
                                            (BB) making direct 
                                        observation of events; or
                                            (CC) 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;
                                    (cc) had such intent at the 
                                inception of the process of gathering 
                                the news or information sought; and
                                    (dd) obtained the news or 
                                information sought in order to 
                                disseminate the news or information to 
                                the public; or
                            (II) means a person who--
                                    (aa) at the inception of the 
                                process of gathering the news or 
                                information sought, had the primary 
                                intent to investigate issues or 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, and 
                                regularly conducted interviews, 
                                reviewed documents, captured images of 
                                events, or directly observed events;
                                    (bb) obtained the news or 
                                information sought in order to 
                                disseminate it by means of a medium set 
                                out in subclause (I)(aa) of this 
                                section; and
                                    (cc) either--
                                            (AA) would have been 
                                        included in the definition in 
                                        subclause (I)(aa) of this 
                                        section for any continuous one-
                                        year period within the 20 years 
                                        prior to the relevant date or 
                                        any continuous three-month 
                                        period within the 5 years prior 
                                        to the relevant date;
                                            (BB) had substantially 
                                        contributed, as an author, 
                                        editor, photographer, or 
                                        producer, to a significant 
                                        number of articles, stories, 
                                        programs, or publications by a 
                                        medium set out in subclause 
                                        (I)(aa) of this section within 
                                        5 years prior to the relevant 
                                        date; or
                                            (CC) was a student 
                                        participating in a journalistic 
                                        medium at an institution of 
                                        higher education (as defined in 
                                        section 102 of the Higher 
                                        Education Act of 1965 (20 
                                        U.S.C. 1002)) on the relevant 
                                        date;
                            (ii) includes a supervisor, editor, 
                        employer, parent company, subsidiary, or 
                        affiliate of a person described in subclause 
                        (I) or (II) of clause (i); and
                            (iii) does not include any person or 
                        entity--
                                    (I) whose principal function, as 
                                demonstrated by the totality of such 
                                person or entity's work, is to publish 
                                primary source documents that have been 
                                disclosed to such person or entity 
                                without authorization; or
                                    (II) who is or is reasonably likely 
                                to be--
                                            (aa) 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);
                                            (bb) 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));
                                            (cc) designated as a 
                                        Specially Designated Global 
                                        Terrorist by the Department of 
                                        the Treasury under Executive 
                                        Order 13224 (66 Fed. Reg. 
                                        49079);
                                            (dd) a specially designated 
                                        terrorist, as that term is 
                                        defined in section 595.311 of 
                                        title 31, Code of Federal 
                                        Regulations (or any successor 
                                        thereto);
                                            (ee) a terrorist 
                                        organization, as that term is 
                                        defined in section 
                                        12(a)(3)(B)(vi)(II) of the 
                                        Immigration and Nationality Act 
                                        (8 U.S.C. 
                                        1182(a)(3)(B)(vi)(II));
                                            (ff) 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;
                                            (gg) 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
                                            (hh) aiding, abetting, or 
                                        conspiring in illegal activity 
                                        with a person or organization 
                                        defined in items (aa) through 
                                        (gg).
                    (B) Judicial discretion.--In the case of a person 
                that does not fit within the definition of ``covered 
                journalist'' described in subclause (I) or (II) of 
                paragraph (A)(i), a judge of the United States may 
                exercise discretion to avail the person of the 
                protections of this Act if, based on specific facts 
                contained in the record, the judge determines that such 
                protections would be in the interest of justice and 
                necessary to protect lawful and legitimate news-
                gathering activities under the specific circumstances 
                of the case.
            (2) Covered service provider.--The term ``covered service 
        provider'' means--
                    (A) any person that transmits information of the 
                customer's choosing by electronic means;
                    (B) a telecommunications carrier or an information 
                service, as defined in section 3 of the Communications 
                Act of 1934 (47 U.S.C. 153);
                    (C) an interactive computer service or an 
                information content provider, as defined in section 230 
                of the Communications Act of 1934 (47 U.S.C. 230);
                    (D) a remote computing service, as defined in 
                section 2711 of title 18, United States Code;
                    (E) an electronic communications service, as 
                defined in section 2510 of title 18, United States 
                Code; or
                    (F) any commercial entity that maintains records 
                related to a covered journalist.
            (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) Judge of the united states.--The term ``judge of the 
        United States'' includes judges of the courts of appeals, 
        district courts, Court of International Trade and any court 
        created by Act of Congress, the judges of which are entitled to 
        hold office during good behavior, as defined in section 451 of 
        title 28, United States Code.
            (6) 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.
            (7) 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 journalist as part of 
                engaging in journalism; or
                    (B) any records, contents of a communication, 
                documents, or information that a covered journalist 
                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.
            (8) Relevant date.--The term ``relevant date'' means the 
        date on which the protected information sought was obtained or 
        created by the person asserting protection under this Act.
                                                       Calendar No. 238

113th CONGRESS

  1st Session

                                 S. 987

                          [Report No. 113-118]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                            November 6, 2013

                       Reported with an amendment