[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