113 S987 RS: Free Flow of Information Act of 2013 U.S. Senate 2013-05-16 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

Calendar No. 238113th CONGRESS1st Session

S. 987

[Report No. 113–118]

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.

Short title

This Act may be cited as the

Free Flow of Information Act of 2013

Compelled disclosure from covered persons

(a)

Conditions for compelled disclosure

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

Limitations on content of information

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

Exception relating to criminal conduct

(a)

In general

Section 2 shall not apply to any information, record, document, or item obtained as the result of the eyewitness observations of, or obtained during the course of, alleged criminal conduct by the covered person, including any physical evidence or visual or audio recording of the conduct.(b)

Exception

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

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

Section 2 shall not apply to any protected information that is reasonably necessary to stop, prevent, or mitigate a specific case of—(1)death;(2)kidnapping;(3)substantial bodily harm;(4)conduct that constitutes a criminal offense that is a specified offense against a minor (as those terms are defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911)), or an attempt or conspiracy to commit such a criminal offense; or(5)incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the USA PATRIOT Act (42 U.S.C. 5195c(e))).

Exception to prevent terrorist activity or harm to the national security

(a)

In general

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

Deference

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

Relationship to section 2

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

Subsequent unlawful disclosure

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

Compelled disclosure from communications service providers

(a)

Conditions for compelled disclosure

(1)

In general

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

Exception

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

Notice and opportunity provided to covered persons

A Federal court may compel the disclosure of a document or other information described in this section only after the covered person from whose account the document or other information is sought has been given—(1)notice from the party seeking the document or other information through a subpoena or other compulsory request, not later than the time at which such subpoena or request is issued to the communications service provider; and(2)an opportunity to be heard before the court before compelling testimony or the disclosure of a document.(c)

Exception to notice requirement

Notice under subsection (b)(1) may be delayed for not more than 45 days if the Federal court involved determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation, a national security investigation, or intelligence gathering, or that exigent circumstances exist. This period may be extended by the court for an additional period of not more than 45 days each time the court makes such a determination.(d)

Notice to communications service provider

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

Sources and work product produced without promise or agreement of confidentiality

Nothing in this Act shall supersede, dilute, or preclude any law or court decision compelling or not compelling disclosure by a covered person or communications service provider of—(1)information identifying a source who provided information without a promise or agreement of confidentiality made by the covered person as part of engaging in journalism; or(2)records, other information, or contents of a communication obtained without a promise or agreement that such records, other information, or contents of a communication would be confidential.

Procedures for review and appeal

(a)

Conditions for ex parte review or submissions under seal

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

Contempt of court

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

To provide for timely determination

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

Expedited appeal process

(1)

In general

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

Expedition of appeals

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

Rule of construction

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

10.

Audit

(a)

In general

The Inspector General of the Department of Justice shall perform a comprehensive audit of the use of this Act during the period beginning on the date of enactment of this Act and ending on December 31, 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.

11.

Definitions

In this Act:(1)

Communications service provider

The term communications service provider—(A)means any person that transmits information of the customer’s choosing by electronic means; and(B)includes a telecommunications carrier, an information service provider, an interactive computer service provider, and an information content provider (as such terms are defined in section 3 or 230 of the Communications Act of 1934 (47 U.S.C. 153 and 230)).(2)

Covered person

The term covered person—(A)means a person who—(i)with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by—(I)conducting interviews;(II)making direct observation of events; or(III)collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;(ii)has such intent at the inception of the process of gathering the news or information sought; and(iii)obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means;(B)includes a supervisor, employer, parent company, subsidiary, or affiliate of a person described in subparagraph (A); and(C)does not include any person who is or is reasonably likely to be—(i)a foreign power or an agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);(ii)a member or affiliate of a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a));(iii)designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order No. 13224 (50 U.S.C. 1701);(iv)a specially designated terrorist, as that term is defined in section 595.311 of title 31, Code of Federal Regulations (or any successor thereto);(v)a terrorist organization, as that term is defined in section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II));(vi)committing or attempting to commit the crime of terrorism, as that offense is defined in section 2331(5) or 2332b(g)(5) of title 18, United States Code;(vii)committing or attempting the crime of providing material support, as that term is defined in section 2339A(b)(1) of title 18, United States Code, to a terrorist organization; or(viii)aiding, abetting, or conspiring in illegal activity with a person or organization defined in clauses (i) through (vii).(3)

Document

The term document means writings, recordings, and photographs, as those terms are defined by rule 1001 of the Federal Rules of Evidence (28 U.S.C. App.).(4)

Federal entity

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)

Properly classified information

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

Protected information

The term protected information means—(A)information identifying a source who provided information under a promise or agreement of confidentiality made by a covered person as part of engaging in journalism; or(B)any records, contents of a communication, documents, or information that a covered person obtained or created—(i)as part of engaging in journalism; and(ii)upon a promise or agreement that such records, contents of a communication, documents, or information would be confidential.

Short title

This Act may be cited as the

Free Flow of Information Act of 2013

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

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.

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.

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

Exception to prevent terrorist activity or harm to the national security

(a)

In general

Deference

Relationship to section 2

Subsequent unlawful disclosure

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.

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.

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.

Rule of construction

10.

Audit

(a)

In general

Report

Review

Form

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

11.

Definitions

In this Act:(1)

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

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.

November 6, 2013

Reported with an amendment