[Congressional Record (Bound Edition), Volume 153 (2007), Part 19]
[House]
[Pages 27299-27315]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  FREE FLOW OF INFORMATION ACT OF 2007

  Mr. CONYERS. Mr. Speaker, pursuant to House Resolution 742, I call up 
the bill (H.R. 2102) 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, and 
ask for its immediate consideration.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 2102

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Free Flow of Information Act 
     of 2007''.

     SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.

       (a) Conditions for Compelled Disclosure.--In any proceeding 
     or in connection with any issue arising under Federal law, a 
     Federal entity may not compel a covered person to provide 
     testimony or produce any document related to information 
     possessed by such covered person as part of engaging in 
     journalism, unless a court determines by a preponderance of 
     the evidence, after providing notice and an opportunity to be 
     heard to such covered person--
       (1) that the party seeking to compel production of such 
     testimony or document has exhausted all reasonable 
     alternative sources (other than a covered person) of the 
     testimony or document;
       (2) that--
       (A) in a criminal investigation or prosecution, based on 
     information obtained from a person other than the covered 
     person--
       (i) there are reasonable grounds to believe that a crime 
     has occurred; and
       (ii) the testimony or document sought is essential to the 
     investigation or prosecution or to the defense against the 
     prosecution; or
       (B) in a matter other than a criminal investigation or 
     prosecution, based on information obtained from a person 
     other than the covered person, the testimony or document 
     sought is essential to the successful completion of the 
     matter;
       (3) in the case that the testimony or document sought could 
     reveal the identity of a source of information or include any 
     information that could reasonably be expected to lead to the 
     discovery of the identity of such a source, that--
       (A) disclosure of the identity of such a source is 
     necessary to prevent imminent and actual harm to national 
     security with the objective to prevent such harm;
       (B) disclosure of the identity of such a source is 
     necessary to prevent imminent death or significant bodily 
     harm with the objective to prevent such death or harm, 
     respectively; or
       (C) disclosure of the identity of such a source is 
     necessary to identify a person who has disclosed--
       (i) a trade secret of significant value in violation of a 
     State or Federal law;
       (ii) individually identifiable health information, as such 
     term is defined in section 1171(6) of the Social Security Act 
     (42 U.S.C. 1320d(6)), in violation of Federal law; or
       (iii) nonpublic personal information, as such term is 
     defined in section 509(4) of the Gramm-Leach-Bliley Act (15 
     U.S.C. 6809(4)), of any consumer in violation of Federal law; 
     and
       (4) that nondisclosure of the information would be contrary 
     to the public interest, taking into account both the public 
     interest in compelling disclosure and the public interest in 
     gathering news and maintaining the free flow of information.
       (b) Limitations on Content of Information.--The content of 
     any testimony or document that is compelled under subsection 
     (a) shall, to the extent possible--
       (1) be limited to the purpose of verifying published 
     information or describing any surrounding circumstances 
     relevant to the accuracy of such published information; and
       (2) be narrowly tailored in subject matter and period of 
     time covered so as to avoid compelling production of 
     peripheral, nonessential, or speculative information.

     SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE 
                   PROVIDERS.

       (a) Conditions for Compelled Disclosure.--With respect to 
     testimony or any document consisting of any record, 
     information, or other communication that relates to a 
     business transaction between a communications service 
     provider and a covered person, section 2 shall apply to such 
     testimony or document if sought from the communications 
     service provider in the same manner that such section applies 
     to any testimony or document sought from a covered person.
       (b) Notice and Opportunity Provided to Covered Persons.--A 
     court may compel the testimony or disclosure of a document 
     under this section only after the party seeking such a 
     document provides the covered person who is a party to the 
     business transaction described in subsection (a)--

[[Page 27300]]

       (1) notice of the subpoena or other compulsory request for 
     such testimony or disclosure from the communications service 
     provider not later than the time at which such subpoena or 
     request is issued to the communications service provider; and
       (2) an opportunity to be heard before the court before the 
     time at which the testimony or disclosure is compelled.
       (c) Exception to Notice Requirement.--Notice under 
     subsection (b)(1) may be delayed only if the court involved 
     determines by clear and convincing evidence that such notice 
     would pose a substantial threat to the integrity of a 
     criminal investigation.

     SEC. 4. 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 sections 3 and 230 of the Communications Act of 
     1934 (47 U.S.C. 153, 230)).
       (2) Covered person.--The term ``covered person'' means a 
     person engaged in journalism and includes a supervisor, 
     employer, parent, subsidiary, or affiliate of such covered 
     person.
       (3) Document.--The term ``document'' means writings, 
     recordings, and photographs, as those terms are defined by 
     Federal Rule of Evidence 1001 (28 U.S.C. App.).
       (4) Federal entity.--The term ``Federal entity'' means an 
     entity or employee of the judicial or executive branch or an 
     administrative agency of the Federal Government with the 
     power to issue a subpoena or issue other compulsory process.
       (5) Journalism.--The term ``journalism'' means the 
     gathering, preparing, collecting, photographing, recording, 
     writing, editing, reporting, or publishing of news or 
     information that concerns local, national, or international 
     events or other matters of public interest for dissemination 
     to the public.

  The SPEAKER pro tempore (Mr. Serrano). Pursuant to House Resolution 
742, the amendment in the nature of a substitute printed in the bill is 
adopted and the bill, as amended, is considered read.
  The text of the bill, as amended, is as follows:

                               H.R. 2102

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Free Flow of Information Act 
     of 2007''.

     SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.

       (a) Conditions for Compelled Disclosure.--In any matter 
     arising under Federal law, a Federal entity may not compel a 
     covered person to provide testimony or produce any document 
     related to information obtained or created by such covered 
     person as part of engaging in journalism, unless a court 
     determines by a preponderance of the evidence, after 
     providing notice and an opportunity to be heard to such 
     covered person--
       (1) that the party seeking to compel production of such 
     testimony or document has exhausted all reasonable 
     alternative sources (other than the covered person) of the 
     testimony or document;
       (2) that--
       (A) in a criminal investigation or prosecution, based on 
     information obtained from a person other than the covered 
     person--
       (i) there are reasonable grounds to believe that a crime 
     has occurred; and
       (ii) the testimony or document sought is critical to the 
     investigation or prosecution or to the defense against the 
     prosecution; or
       (B) in a matter other than a criminal investigation or 
     prosecution, based on information obtained from a person 
     other than the covered person, the testimony or document 
     sought is critical to the successful completion of the 
     matter;
       (3) in the case that the testimony or document sought could 
     reveal the identity of a source of information or include any 
     information that could reasonably be expected to lead to the 
     discovery of the identity of such a source, that--
       (A) disclosure of the identity of such a source is 
     necessary to prevent an act of terrorism against the United 
     States or its allies or other significant and specified harm 
     to national security with the objective to prevent such harm;
       (B) disclosure of the identity of such a source is 
     necessary to prevent imminent death or significant bodily 
     harm with the objective to prevent such death or harm, 
     respectively; or
       (C) disclosure of the identity of such a source is 
     necessary to identify a person who has disclosed--
       (i) a trade secret, actionable under section 1831 or 1832 
     of title 18, United States Code;
       (ii) individually identifiable health information, as such 
     term is defined in section 1171(6) of the Social Security Act 
     (42 U.S.C. 1320d(6)), actionable under Federal law; or
       (iii) nonpublic personal information, as such term is 
     defined in section 509(4) of the Gramm-Leach-Biley Act (15 
     U.S.C. 6809(4)), of any consumer actionable under Federal 
     law; and
       (4) that the public interest in compelling disclosure of 
     the information or document involved outweighs the public 
     interest in gathering or disseminating news or information.
       (b) Limitations on Content of Information.--The content of 
     any testimony or document that is compelled under subsection 
     (a) shall--
       (1) not be overbroad, unreasonable, or oppressive and, as 
     appropriate, be limited to the purpose of verifying published 
     information or describing any surrounding circumstances 
     relevant to the accuracy of such published information; and
       (2) be narrowly tailored in subject matter and period of 
     time covered so as to avoid compelling production of 
     peripheral, nonessential, or speculative information.
       (c) Rule of Construction.--Nothing in this Act shall be 
     construed as applying to civil defamation, slander, or libel 
     claims or defenses under State law, regardless of whether or 
     not such claims or defenses, respectively, are raised in a 
     State or Federal court.

     SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE 
                   PROVIDERS.

       (a) Conditions for Compelled Disclosure.--With respect to 
     testimony or any document consisting of any record, 
     information, or other communication that relates to a 
     business transaction between a communications service 
     provider and a covered person, section 2 shall apply to such 
     testimony or document if sought from the communications 
     service provider in the same manner that such section applies 
     to any testimony or document sought from a covered person.
       (b) Notice and Opportunity Provided to Covered Persons.--A 
     court may compel the testimony or disclosure of a document 
     under this section only after the party seeking such a 
     document provides the covered person who is a party to the 
     business transaction described in subsection (a)--
       (1) notice of the subpoena or other compulsory request for 
     such testimony or disclosure from the communications service 
     provider not later than the time at which such subpoena or 
     request is issued to the communications service provider; and
       (2) an opportunity to be heard before the court before the 
     time at which the testimony or disclosure is compelled.
       (c) Exception to Notice Requirement.--Notice under 
     subsection (b)(1) may be delayed only if the court involved 
     determines by clear and convincing evidence that such notice 
     would pose a substantial threat to the integrity of a 
     criminal investigation.

     SEC. 4. 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 sections 3 and 230 of the Communications Act of 
     1934 (47 U.S.C. 153, 230)).
       (2) Covered person.--The term ``covered person'' means a 
     person who, for financial gain or livelihood, is engaged in 
     journalism and includes a supervisor, employer, parent, 
     subsidiary, or affiliate of such covered person. Such term 
     shall not include--
       (A) any person who is a foreign power or an agent of a 
     foreign power, as such terms are defined in section 101 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801); or
       (B) any organization designated by the Secretary of State 
     as a foreign terrorist organization in accordance with 
     section 219 of the Immigration and Nationality Act (8 U.S.C. 
     1189).
       (3) Document.--The term ``document'' means writings, 
     recordings, and photographs, as those terms are defined by 
     Federal Rule of Evidence 1001 (28 U.S.C. App.).
       (4) Federal entity.--The term ``Federal entity'' means an 
     entity or employee of the judicial or executive branch or an 
     administrative agency of the Federal Government with the 
     power to issue a subpoena or issue other compulsory process.
       (5) Journalism.--The term ``journalism'' means the 
     gathering, preparing, collecting, photographing, recording, 
     writing, editing, reporting, or publishing of news or 
     information that concerns local, national, or international 
     events or other matters of public interest for dissemination 
     to the public.

  The SPEAKER pro tempore. After 1 hour of debate on the bill, as 
amended, it shall be in order to consider the amendment printed in 
House Report 110-383 if offered by the gentleman from Virginia (Mr. 
Boucher) or his designee, which shall be in order without intervention 
of any point of order or demand for division of the question, shall be 
considered read, and shall be debatable for 10 minutes, equally divided 
and controlled by the proponent and an opponent.
  The gentleman from Michigan (Mr. Conyers) and the gentleman from 
Texas (Mr. Smith) each will control 30 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members

[[Page 27301]]

may have 5 legislative days in which to revise and extend their remarks 
on H.R. 2102.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Ladies and gentlemen of the House, in recent years, the press has 
been under assault as reporters are increasingly being imprisoned, 
imprisoned for obstruction of justice and other charges. There are many 
causes of these attacks, including an increasingly consolidated media, 
abuse of position of power to intimidate members of the press, and a 
co-opting of the media as an investigative arm of the government.
  Today, we are here in an attempt to reclaim one of the most 
fundamental principles enshrined by the Founding Fathers in the first 
amendment to the Constitution. Freedom of the press is the cornerstone 
of our democracy. Without it, we cannot have a well-informed electorate 
and a government that truly represents the will of the people.
  This measure before us, H.R. 2102, the Free Flow of Information Act, 
helps restore the independence of the press so that it can perform its 
essential duty of getting information to the public. The bill will 
ensure that members of the press are free to utilize confidential 
sources without causing harm to themselves or their sources by 
providing a qualified privilege that prevents a reporter's source 
material from being revealed except under certain narrow circumstances. 
This measure balances the public's right to know against the legitimate 
and important interests that society has in maintaining public safety.
  After the hearing and markup of this legislation, the sponsors of the 
bill worked hard to accommodate the concerns of all that were raised. 
While several good changes were made, I want to focus my comments today 
on the issue of national security and why I believe concerns about 
national security have been very effectively addressed in the bill and 
in the proposed manager's amendment.
  The bill provides that disclosure of a source can be compelled where 
necessary to prevent an act of terrorism or significant specified harm 
to national security. The manager's amendment that will be offered by 
our colleagues, Mr. Boucher and Mr. Pence, specifically addresses the 
Department of Justice and DNI's primary concern, which is that the 
bill's exception for national security concerns would hinder efforts to 
investigate and prosecute leakers of classified information.
  In response to this concern, the manager's amendment provides that 
disclosure of a source can be compelled in a criminal investigation or 
prosecution of an unauthorized disclosure of properly classified 
information when such disclosure will cause significant harm to 
national security.
  The bill defines a covered person to exclude foreign powers or agents 
of foreign powers, so that, for example, a government-controlled 
newspaper of a foreign nation does not receive the protections of the 
act. This provision insures that our national security and law 
enforcement efforts will not be flouted by foreign governments that try 
to hold themselves out as covered journalists and claim entitlement to 
the act's protections.
  The bill makes it clear that any foreign terrorist organization 
designated by the Secretary of State is excluded from the protections 
of the act.
  In addition, the manager's amendment adds three more exceptions to 
the definition of ``covered person,'' so the privilege does not apply 
to any person designated as a specially designated global terrorist by 
the Treasury Department, any person who is specially designated a 
terrorist under FISA, and any terrorist organization as defined in the 
Immigration and Nationality Act.
  Each of these exceptions were proposed by the Department of Justice 
and accepted by us. So, as you can see, the bill provides broad 
protection for national security.

                              {time}  1545

  If the exceptions were any broader, it would swallow up the rule 
itself. And for those who claim that the national security exception 
should not also be subject to the balancing test, I have no doubt that 
if a court finds that the disclosure of the source is necessary to 
prevent an act of terrorism or other harm to national security, it will 
also find that disclosure outweighs the public interest in gathering 
and disseminating the information.
  So it is our responsibility, Congress's responsibility, to ensure the 
press is able to perform its job adequately. The Free Flow of 
Information Act is an important part of fostering the continued growth 
of a free and independent press in the United States. It will encourage 
increased dialogue on the issues that face this country; and, in doing 
so, it will strengthen the foundation of our democracy.
  This legislation receives wide support. Over 100 editorial boards, a 
diverse group of over 50 media companies and organizations, including 
the Newspaper Association of America, the National Association of 
Broadcasters, the Associated Press, News Corp, the Newspaper Guild, 
ABC, NBC, and journalist organizations like the Reporters Committee for 
Freedom of the Press and the American Society of Newspaper Editors.
  Please join with us on both sides of the aisle so that we can support 
and pass this important piece of legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  First of all, I would like to say to my colleagues that beginning 
last night in the early evening and continuing and extending to this 
morning, a number of us have been in touch with each other about the 
provisions of this bill with the hope and expectation that we might be 
able to resolve our differences. I have been in touch with the White 
House. I have been in touch with the principal sponsors of the 
legislation; and I think we had engaged in some good-faith efforts to 
try to, as I say, resolve our differences.
  Specifically, I had been hopeful that the other side would accept 
some of the provisions that had been in an amendment that I had hoped 
to offer today. Unfortunately, that amendment was not allowed by the 
Rules Committee. So Members of the House are not going to be able to 
vote on that amendment, which, in my judgment, would have improved the 
bill. There were a couple of provisions in that amendment, though, that 
I thought would be of interest to the sponsors of the bill and to the 
other side, and I regret that we were not able to come to a meeting of 
the minds, because I think that would have improved the bill and also 
yielded a better result when the bill perhaps becomes law.
  Mr. Speaker, I also want to say to my colleagues that, if anything, I 
have a sympathy for the media, for the press. Long ago and far away, I 
was a newspaper reporter and spent 2 years writing articles, and so I 
have stood in the shoes of those who are reporters today. After being a 
reporter for a couple of years, I went to law school; and while in law 
school I actually wrote an article for the Texas Bar Journal called 
``Politicians Versus the Press: Libel in Texas,'' and I actually came 
down on the side of the press. So that is where my sympathies lie.
  However, in the case of this bill, I am afraid I cannot support it. 
And because we were not able to reach a compromise on the bill, I 
remain opposed to the bill, the White House remains opposed to the 
bill, the Director of National Intelligence remains opposed to the 
bill, and the Department of Justice remains opposed to the bill. 
Unfortunately, it is still so flawed that we cannot support it.
  Mr. Speaker, a free press strengthens democracy. In our Nation the 
first amendment of the Constitution guarantees the press their freedom 
to report. And for 200 years in this Nation, the press, in fact, has 
flourished. Information has flowed freely. And that is why I believe 
this bill is simply a solution in search of a real problem.

[[Page 27302]]

  Members of the private sector and law enforcement officials believe 
H.R. 2102 diminishes legal rights, public safety, and our national 
security. We must ensure that whistleblowers can expose crimes, waste, 
and wrongdoing. But we should not create a protection so broad that 
those who would destroy people's reputations, businesses, and privacy 
can hide behind it.
  The Federal Government defends our national security; so we must 
weigh the benefits of a reporter's privilege with the problems it may 
cause for those who protect our country.
  I thank the primary authors of H.R. 2102, Mr. Boucher and Mr. Pence, 
for working with the Department of Justice, interested groups, and 
Members to develop alternative language to address legitimate concerns 
of industry and law enforcement authorities. Despite efforts to 
accommodate their concerns, the Justice Department and the acting 
Director of National Intelligence, as I mentioned a while ago, still 
oppose this bill for very good reasons. The White House also opposes 
the bill and a veto is likely. The President's senior advisers, in 
fact, have recommended a veto of this bill. They believe the stakes are 
too high in a post-9/11 world to support the Free Flow of Information 
Act.
  For example, they have pointed out that the exceptions language fails 
to address misconduct that the Justice Department confronts on a daily 
basis. To illustrate, neither the bill nor the manager's amendment that 
will be offered contains exceptions language allowing DOJ to obtain the 
identity of a new source with the knowledge of a child prostitution 
ring, an online purveyor of pornography, gang violence, or alien 
smuggling, all examples.
  And the text governing source disclosure exceptions only addresses 
prospective events, not past events. For example, the Department may be 
able to acquire information about a source's identity to prevent a 
terrorist attack like September 11; but if al Qaeda decides to tell a 
media outlet on September 12 how it planned and carried out the attack, 
DOJ could not compel that media outlet to reveal its terrorist sources 
while conducting an investigation.
  If a child molester spoke to a journalist and revealed that he 
molested a child yesterday, under this bill Justice officials could not 
compel that journalist to reveal his sources and cooperate in the 
investigation. The Department of Justice will be hamstrung as it goes 
about the business of conducting investigations and prosecuting 
criminals.
  Yes, numerous States have shield laws, but they run the gamut; and 
many are not near as broad as the Federal shield law proposed today. 
But the key difference is that the States are not entrusted with the 
responsibility of defending our country; the Federal Government is. 
Under the bill, DOJ carries the burden of trying to establish a 
national security imperative which can still be negated by a judge's 
subjective notion of what constitutes the public interest in news 
gathering. The bill's terms will be subject to the different opinions 
of hundreds of Federal judges across the country.
  The bill is simply a solution in search of a problem. It has been 35 
years since the Supreme Court ruled that the first amendment does not 
shield journalists in grand jury proceedings. The Justice Department 
has issued only 19 subpoenas to reporters seeking confidential source 
information since 1991. Only 19 subpoenas since 1991. The system is not 
broken. So why are we trying to fix it?
  I simply believe we must err on the side of caution and not support 
legislation that could make it harder to apprehend criminals and 
terrorists or to deter their activities.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself 1 minute before turning to 
the gentleman from Virginia (Mr. Boucher).
  I want to just take this time to say to the distinguished ranking 
member of Judiciary, Lamar Smith, how much we appreciate his 
constructive work with the working group that has been trying to come 
together to reach an agreement on this bill. At all times he has been 
straightforward, candid; and we think that the work that we are doing 
should go on, even though we are bringing the bill up today and it is 
moving forward. And I invite his continued working with us so that we 
can reach as much conclusion as we can on the several points that are 
outstanding.
  Mr. Speaker, I now yield 4 minutes to the gentleman who has put so 
much work into this matter, the distinguished gentleman from Virginia, 
Rick Boucher, the author of this bill.
  Mr. BOUCHER. Mr. Speaker, I thank the gentleman from Michigan, the 
distinguished chairman of the House Judiciary Committee, for yielding 
this time to me. I want to thank Chairman Conyers also for his strong 
leadership and his persistent effort that has resulted in this 
bipartisan measure's coming to the floor of the House this afternoon. 
His leadership has been invaluable to the success that we will 
experience when this measure is approved by the House later today.
  I also want to commend the outstanding work of the gentleman from 
Indiana (Mr. Pence), who has devoted his personal time and his 
commitment to this bipartisan undertaking. He is the lead Republican 
sponsor of this bill, and I want to say to him how much I appreciate 
the productive partnership that he and I have formed and the tremendous 
work that he has done in moving this measure forward. We truly would 
not be where we are today without the constructive work of Mr. Pence.
  He and I are joined by a total of 71 House cosponsors, who, on a 
bipartisan basis, believe that the time has arrived for the Congress to 
extend to journalists a privilege to refrain from revealing their 
confidential sources of information in Federal court proceedings.
  The privilege our bill provides is similar to those currently 
extended by statutes in 34 States and in the District of Columbia. The 
ability to assure confidentiality to people who provide information is 
essential to effective news gathering and reporting. Typically, the 
best information that can be received about events like corruption in 
government or misdeeds in a large private organization, such as a 
corporation or a large public charity, will come from someone on the 
inside who feels a responsibility to contact a reporter and bring that 
sensitive information to public scrutiny.
  But that person has a lot to lose if his or her identity becomes 
known. In many cases the person responsible for the corruption or the 
misdeeds can punish that individual through dismissal from employment 
or through more subtle means if the identity of that confidential 
source is disclosed. In most sensitive cases it is only by assuring 
anonymity to the source that a reporter can gain access to the 
information and bring that information to public light.
  By granting to reporters a qualified privilege to refrain from 
revealing their confidential news sources, we are clearly protecting 
the public's right to know. And public knowledge of misdeeds can lead 
to the corrective action of criminal charges or of the passage, 
perhaps, of legislation.
  While extending a broad privilege, we have included some exceptions 
for instances in which source information can and should be disclosed 
where a strong public interest compels that disclosure. The exceptions 
include disclosures to prevent an act of terrorism or to prevent an 
imminent and actual harm to national security, to prevent imminent 
death or significant bodily harm, or to determine who has disclosed 
trade secrets or personal health or personal financial information in 
violation of law.

                              {time}  1600

  An amendment that I will be offering shortly, along with Mr. Pence, 
will permit disclosure in a number of other instances, including the 
instance of the leak of certain kinds of classified information.
  In every instance, an exception to the privilege will only apply if 
the court determines that the public interest and disclosure outweighs 
the public

[[Page 27303]]

interest in protecting news gathering and news dissemination. Our 
measure extends a needed privilege; it will protect the public's right 
to know.
  I again want to thank Chairman Conyers and his outstanding staff for 
the work that they have done which leads to this measure arriving on 
the floor today. And I thank my partner, Mr. Pence, for his outstanding 
efforts.
  Mr. SMITH of Texas. Mr. Speaker, before I yield to a colleague, I 
want to yield myself 1 minute.
  Mr. Speaker, what I want to do is read an excerpt from the Statement 
of Administration Policy that might respond to some of the points that 
have been made.
  The administration said that if H.R. 2102 were presented to the 
President in its current form, his senior advisers would recommend that 
he veto the bill, and here's one of the reasons why:
  ``The bill would impose an unreasonable and unjustified evidentiary 
burden on prosecutors seeking to issue a subpoena to a member of the 
news media, placing authorities in an untenable position.
  ``In order to satisfy the bill's requirements, prosecutors 
essentially must prove the existence of specific criminal activity in a 
hearing before a judge, with notice to the subjects of the 
investigation, before they will be able to undertake the necessary 
investigative steps to determine whether a crime has occurred. Thus, in 
many cases, prosecutors will have to conduct a minitrial before their 
investigation has concluded, and in some cases, even before their 
investigation has gotten off the ground.''
  Mr. Speaker, I am now happy to yield to the gentleman from Missouri, 
the minority whip (Mr. Blunt).
  Mr. BLUNT. Mr. Speaker, I thank the gentleman for yielding.
  I want to also thank my good friends, Mr. Pence and Mr. Boucher, for 
working so hard on this legislation. I think it was first introduced 3 
years ago. I was a cosponsor of it at the time and I am a cosponsor 
today. And I want to mention the hard work that Mr. Conyers has done to 
get this legislation to this point today after a long effort, and also 
to suggest that the hard work of my good friend, Mr. Smith, is deeply 
appreciated.
  I'm always hesitant when I rise on the House floor with any position 
that's different than his, but this is a place where I really do think 
that it's important to draw a line, and important, a bright line, 
between the information that people have access to and how they get it. 
I certainly can't say that I agree with everything I read in a 
newspaper article or that I see on the evening news or that I hear on a 
local radio program, but I can say that the public is best served by 
maintaining the free flow of information on matters of public interest.
  As James Madison said in the report of 1800, arguing against the 
Sedition Act, ``To the press alone, checkered as it is with abuses, the 
world is indebted for all the triumphs that have been gained by reason 
and humanity over error and oppression.'' Madison, Jefferson and our 
history lead to the conclusion that a free press is essential for a 
free people.
  In the past few years, there have been too many instances where the 
pendulum has swung against the free flow of information and in favor of 
the government. I was troubled by the instances I've seen where 
reporters have been jailed or threatened with jail for simply 
protecting their sources. Journalists should be the last resort, not 
the first stop, for civil litigants and for prosecutors attempting to 
obtain the identity of confidential sources.
  In my view, continuing to compel reporters to reveal the identity of 
their confidential sources will result in a chilling effect on the free 
flow of information and be detrimental to the public interest. 
Nevertheless, the privileges that reporters have should not be 
unlimited, they should not be absolute, and this bill defines those 
exceptions in an important way. This bill says that in cases where it's 
necessary to reveal a source to prevent an act of terrorism, to prevent 
other significant harm to national security, to prevent imminent death 
or significant bodily harm, the reporter can be compelled. It also 
includes an exception in cases where a properly classified national 
security secret along with financial information, a trade secret or 
personal medical information has been improperly leaked, where that 
reporter can face a penalty.
  Finally, it excludes from protection terrorists and their media arms. 
Yes, there are times when confidentiality must be breached, and I 
believe this bill strikes that balance. Forty-nine States and the 
District of Columbia have legislation similar to this, but this 
establishes a national standard.
  Again, I thank my colleagues for the hard work to bring this to the 
floor. I look forward to the vote today, and I urge my colleagues to 
support this bill.
  Mr. CONYERS. Mr. Speaker, I am pleased now to yield 1 minute to Ms. 
Shelley Berkley of Nevada.
  Ms. BERKLEY. I thank the gentleman from Michigan for being in the 
forefront of this issue as well as all other issues regarding the civil 
liberties of our fellow Americans, and a special thank you to Mr. 
Boucher and Mr. Pence for their outstanding work on this particular 
piece of legislation.
  Mr. Speaker, I rise in strong support of the Free Flow of Information 
Act. This legislation strikes a careful balance by protecting 
journalists from being forced to reveal confidential sources unless 
there is an imminent threat to our national security.
  I've heard from journalists and broadcasters in my district about the 
importance of being able to protect their sources without risking 
prosecution. Without this protection, stories involving conditions at 
the Walter Reed Army Medical Center, prisoner abuse at Abu Ghraib, and 
the unmasking of the culprits behind the Enron scandal might never have 
been written.
  I wholeheartedly support this legislation, and I urge my colleagues 
to do the same.
  Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman 
from Indiana, a distinguished member of the Judiciary Committee and one 
of the original sponsors of the legislation we are debating today.
  Mr. PENCE. I thank the gentleman for yielding.
  I want to thank Ranking Member Smith for his spirit of cooperation on 
this legislation. While we may differ ultimately on the vote today, he 
is a public-minded man deeply committed to the free press, and I 
appreciate his engagement.
  My heartfelt thanks to Chairman Conyers for his yeoman's work in 
moving this legislation forward. And I also want to express my profound 
gratitude to the gentleman from Virginia, Congressman Rick Boucher, who 
is the lead sponsor of this legislation today and has been my partner 
these last 3 years as we've moved the Free Flow of Information Act to 
this moment on the House floor.
  This legislation today is a direct result of his bold and thoughtful 
leadership, and it is a result of a bipartisan partnership that has 
been a singular, personal and professional pleasure for me.
  As a conservative who believes in limited government, I believe the 
only check on government power in real time is a free and independent 
press. The Free Flow of Information Act is not about protecting 
reporters; it's about protecting the public's right to know.
  Not long ago, reporters' assurance of confidentiality was 
unquestionable, but today the press cannot currently make the same 
assurances, and we face a time when there may never be another Deep 
Throat. Compelling reporters to testify, in particular, compelling them 
to reveal the identity of confidential sources is a detriment to the 
public interest.
  The Free Flow of Information Act has been carefully crafted after 
reviewing internal Department of Justice guidelines, State shield laws, 
and other gathering input from interested parties. In most instances, 
under our bill, a reporter will be able to use the shield provided to 
refrain from testifying or providing documents or revealing a

[[Page 27304]]

source, but the privilege is not absolute or unlimited. Testimony or 
documents can be forced if all other reasonable alternative sources 
have been exhausted, it's critical to a criminal prosecution, and a 
judge determines, through a balancing act, that its disclosure is in 
the public interest.
  In a situation where a reporter is being asked to reveal the identity 
of a source, the bill provides several exceptions where a reporter can 
be compelled to reveal a source, and in the Boucher-Pence manager's 
amendment we will add additional exceptions to this bill under which 
compelled disclosure of a source will be permitted in cases of 
unauthorized leaks of national security secrets.
  It is important to know what the bill does not do. It does not give 
reporters a license to break the law, the right to interfere with 
police or prosecutors; it simply gives journalists certain rights and 
abilities to seek sources and report information without intimidation.
  Lastly, let me say how humbling it is for me to have played a small 
role in moving this legislation forward. From my youth, I have enjoyed 
a fascination with freedom and the Constitution. I learned early on 
that freedom's work is never finished, that it falls on each generation 
to preserve the freedoms we inherit. The banner of the Indianapolis 
Star in my home State reads below the name, ``Where the spirit of the 
Lord is, there is freedom.'' I opened my Bible this morning for my 
devotions, and it was that verse that happened to be in my daily 
readings; just happened to be. It reminded me of when we do freedom's 
work by putting a stitch in a tear in the fabric of the Bill of Rights, 
His work has truly become our own.
  I urge my colleagues and both parties to join us in freedom's 
unfinished work. Say ``yes'' to the Free Flow of Information Act.
  Mr. CONYERS. Mr. Speaker, I am pleased to have the gentleman from 
Kentucky working with us (Mr. Yarmuth) and I yield to him 2 minutes in 
support of this measure.
  Mr. YARMUTH. I thank the chairman. And I also want to thank Mr. 
Boucher and Mr. Pence for inviting me to become an original cosponsor 
of this important piece of legislation.
  As the only member of the Society of Professional Journalists in 
Congress and as a former journalist, I fully understand how assurances 
of anonymity put a frightened insider at ease and turn a reluctant 
source into an eye-opening wealth of information.
  At my newspaper in Louisville, we were able to open doors for the 
community on several occasions due to confidential accounts of 
protected sources which would have otherwise remained closed to us 
forever. Also, at Louisville, we saw what happens when we fail to 
protect a source's identity. There, Jeffrey Wigand, the famous tobacco 
whistle-blower, was victimized by threats and intimidation, ultimately 
losing his job, his family and his home. He is considered a hero today, 
but for many the lesson from that episode was, if you have 
incriminating information that will benefit the American public, just 
keep it to yourself.
  The first amendment to the Constitution demands the right to free 
press. Now it falls on Congress to help facilitate that freedom 
pursuant to our authority vested in us by the first article of the 
Constitution. And speaking of article I of the Constitution, the 
article vests all legislative power in the Congress of the United 
States. It doesn't ask us to ask the White House first whether it 
approves of what we do. It actually imposes on us, not just the right, 
but the responsibility to legislate in the best interests of the 
country. And that's what we are doing with this legislation.
  Without the Free Flow of Information Act, we, as a country, will be 
in the dark on certain issues, conscientious journalists will be 
imprisoned, and potential sources will remain tight lipped.
  I urge my colleagues to join me in supporting this crucial measure.
  Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my friend from 
North Carolina (Mr. Coble), a distinguished member of the Judiciary 
Committee and the ranking member of the Intellectual Property 
Subcommittee of the Judiciary Committee.
  Mr. COBLE. I thank the gentleman.
  H.R. 2102 was approved by the House Committee on the Judiciary by 
voice vote.
  I feel strongly, Mr. Speaker, that the administration's opposition to 
this legislation is misguided.
  Former Solicitor General of the United States, Theodore Olson, wrote 
that ``the legislation is well balanced and long overdue, and it should 
be enacted.''
  The bill is good policy, and I urge all Members to vote in support of 
final passage and in support of the manager's amendment.
  In closing, I want to thank the sponsors of the legislation, the 
distinguished gentleman from Virginia, the distinguished gentleman from 
Indiana, Representatives Boucher and Pence, respectively. Both have 
been champions for H.R. 2102 and have diligently worked to address all 
concerns throughout the legislative process, as have Chairman Conyers 
and Ranking Member Smith.
  Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to the gentleman 
from Florida (Mr. Keller), a diligent member of the Judiciary 
Committee.
  Mr. KELLER of Florida. I thank the gentleman for yielding.
  Mr. Speaker, I rise in strong support of the Free Flow of Information 
Act. This media shield legislation is important because off-the-record, 
confidential sources are needed to help journalists get to the truth, 
and I don't want reporters thrown in jail for doing their jobs.
  Our history is full of examples of confidential sources exposing 
corruption, fraud and misconduct. For example, the Watergate scandal 
was blown wide open by Deep Throat, a confidential source we now know 
to be Mark Felt, the number two person at the FBI. Confidential sources 
also exposed the cooked books at Enron, and the unacceptable treatment 
of soldiers recovering at Walter Reed.
  A free and independent press which protects the public's right to 
know is needed for a healthy democracy and government accountability. 
That's why a majority of States already have media shield laws on the 
books, and why we need this law on the Federal level.
  I urge my colleagues to vote ``yes'' on the Free Flow of Information 
Act.

                              {time}  1615

  Mr. SMITH of Texas. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, I would like to read an excerpt from the Department of 
Justice's letter in opposition to the bill we are discussing: ``Given 
the extensive safeguards already in place, the Department strongly 
opposes H.R. 2102 and similar legislative efforts to provide a 
`journalist's privilege' that would prevent the disclosure of relevant 
testimony and evidence critical to the fair disposition of 
investigations and trials.
  ``H.R. 2102 would make it virtually impossible to enforce certain 
Federal criminal laws, particularly those pertaining to the 
unauthorized disclosure of classified information, and would seriously 
impede other national security investigations and prosecutions, 
including terrorism prosecutions.
  ``H.R. 2102 would undermine national security and other law 
enforcement investigations by permitting compelled disclosure of a 
media source only when necessary to prevent a terrorist attack against 
the United States and only when the bill's other burdensome 
prerequisites are satisfied.''
  But the problem here is that it would not allow us to get to the 
information after the fact. You could not force a journalist to 
disclose information, for instance, after a terrorist attack when you 
want to find out who was involved in that attack. For that reason, we 
should oppose the bill.
  Mr. CONYERS. Mr. Speaker, I yield myself 5 minutes.
  Mr. Speaker, I would like to begin by complimenting Mike Pence of 
Indiana, a distinguished member of the Judiciary Committee who has been 
working on this bill before the 110th Congress. He was a leader in 
supporting this legislation in the 109th Congress and may

[[Page 27305]]

have been working on it even before then. So when I listened to my 
other colleagues on the other side who have been working on and 
continue to support this legislation, I think it is very easy to 
perceive that with the working group, with the leaders on both sides of 
the aisle working with Rick Boucher on this for so long, we have now 
come to a point where most of the concerns have been addressed; and I 
deeply thank my colleagues on the Judiciary Committee for the 
constructive role they played not only in their independent capacity, 
but in the working group that has been working behind the scenes on 
this, as well.
  Now, Members of the House, there has been something said about the 
importance of national security information. Sometimes it is just as 
important that the press report on information that the government has 
tried to hide in the name of national security. Because the problem 
frequently is that if we keep going after journalists trying to shut 
them up, trying to put them in jail, or threatening to prosecute them, 
they will be afraid to report some of the important stories that I am 
going to relate to you that up until now journalists have had to take 
it on their own risk to decide what to do. I don't think that is 
appropriate, nor is it necessary, nor is it contrary to any of our 
concerns about national security.
  The history of the American press provides ample evidence of certain 
stories that would have never been known to the general public without 
the news media's use of confidential sources. Oftentimes these stories 
shed light on government misconduct, on corporate waste, fraud and 
abuse, and other matters of concern. The free flow of information to 
the public is vitally important to the operation of our democracy and 
to oversight our most powerful public and private institutions.
  Now, here are a few examples of issues that were made known to the 
public through news reports based on confidential source information. 
Reporters decided that they would honor the confidence of their 
resources no matter what happened to them. These are courageous people 
of the media that had to take this on themselves. So this shield law is 
to take people out of this bind, out of this fear of having to be 
coerced because we don't know what is going to happen. This draws a 
very bright line for everybody to understand how we should proceed in 
the future.
  Here is a matter that is important: the unsafe and deteriorating 
conditions at the Walter Reed Army Medical Center. Here is another 
public interest matter: the exposure of fertility fraud in Southern 
California based upon clinical records provided by anonymous sources, 
reporting more than 250 accounts of fertility fraud and revealed 
coverups, intimidation of clinical employees and bribery. Because of 
this reporting, the American Medical Association issued new guidelines 
for fertility clinics.
  Here is another story that was of some consequence: a hospital 
scandal of patient dumping by a Los Angeles County emergency aid 
program. Reporting that article prompted a government investigation 
that brought it to an end. Rampant steroid use in Major League Baseball 
by world-class athletes which, in part, led Major League Baseball and 
its players union to open up its labor contract and adopt a steroid 
testing policy.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my friend and 
colleague from Texas (Mr. Poe).
  Mr. POE. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, The Free Flow of Information Act helps ensure that our 
press remains free. Our Constitution provides for a free press in the 
first amendment. The first amendment is first for a reason. It is the 
most important. Without the first amendment freedom of press, speech, 
religion and assembly, all the rest of the amendments are meaningless. 
A free press provides for a free flow of information.
  I agree with the doctrine: a free press will ensure a fair press. The 
president and publisher of the Houston Chronicle, Jack Sweeney, said 
today: ``Journalists should be the last resort, not the first stop for 
civil litigants and prosecutors attempting to obtain the identity of 
confidential sources. This bill would protect the public's right to 
know, while at the same time honoring the public interest in having 
reporters testify in certain circumstances.''
  This bill really does not create a new special protection. It gives 
journalists the protection that is already afforded to them in 49 
States which protect the confidentiality of reporters' sources. Federal 
protection is long overdue.
  Mr. Speaker, I gladly cosponsor this bill, and that's just the way it 
is.
  Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my distinguished 
colleague from Oregon (Mr. Walden).
  Mr. WALDEN of Oregon. Mr. Speaker, as a graduate of the School of 
Journalism at the University of Oregon and as the owner of radio 
stations with award-winning journalists, I am a firm believer in the 
need for journalists to be able to protect their confidential sources 
so they can have a vibrant and free press in America.
  This bill is about much more than simply shielding reporters. It is 
about protecting the public's right to know. Jailing reporters to force 
them to divulge their sources has a chilling affect on whistleblowers 
and investigative reporters.
  Thomas Jefferson said: ``Our liberty cannot be guarded but by the 
freedom of the press nor that be limited without danger of losing it.'' 
A vote for the Free Flow of Information Act is a vote to protect 
citizens and taxpayers from an ominous and oppressive government that 
seeks to silence its critics. And in America, such government power 
would threaten our freedom and our informed democracy.
  Mr. SMITH of Texas. Mr. Speaker, may I ask how much time remains on 
each side.
  The SPEAKER pro tempore (Mr. Serrano). The gentleman from Texas has 
11 minutes remaining. The gentleman from Michigan has 9\1/2\ minutes 
remaining.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes.
  Mr. Speaker, I would like to read for my colleagues an excerpt of a 
letter we received from the Office of the Director of National 
Intelligence:
  ``We are joining the Department of Justice in opposing H.R. 2102, the 
Free Flow of Information Act of 2007. We share the Department's strong 
opposition to H.R. 2102 articulated in its letter of July 31, 2007.
  ``The government must retain the ability to obtain information from 
the press that would both prevent harm to the United States and its 
citizens and to identify and bring to justice those who cause such 
harm. Unfortunately, press reports on U.S. intelligence activities have 
been a valuable source of intelligence to our adversaries. Former 
Russian military intelligence Colonel Stanislav Lunev wrote: `I was 
amazed, and Moscow was very appreciative, at how many times I found 
very sensitive information in American newspapers. In my view, 
Americans tend to care more about scooping their competition than about 
national security, which made my job easier.''
  What an indictment.
  Finally, and I am quoting from the letter: ``The bill, as drafted, 
would require that identification of the source be necessary to prevent 
an act of terrorism or other significant and specified harm to the 
national security. It would not, however, allow the government to 
compel the identification of a source if it was necessary to identify 
the perpetrators of a completed act of terrorism or an act that harmed 
the national security. Similarly, the bill could authorize the 
government to compel the identification of a source in order to prevent 
imminent death or bodily harm, but would not allow the government to 
compel disclosure of a source in order to identify a murderer.
  ``For these reasons and for the reasons set out in the letter from 
the Department of Justice, we urge the Congress to reject this bill.''
  Mr. Speaker, that is a letter from the Office of the Director of 
National Intelligence.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, during our negotiations led by the Boucher-Pence team, I

[[Page 27306]]

would like to bring to the attention of the ranking member and manager 
of this bill before us an important change that was made in the 
manager's amendment which may or may not have come to his attention 
because it was made so late in the day. We now have a manager's 
amendment that would allow the government to pierce the journalistic 
shield to prevent a terrorist attack, but also to identify any 
perpetrators of a terrorist attack. I wanted to make sure that my 
friend and colleague was aware of this very important change because it 
was made at the very last minute.
  Mr. Speaker, I will submit a number of articles from newspapers, 
mostly editorials, that deal with the support of the shield law that is 
before the Congress at this time.
  We have a contribution from the Post-Standard in Syracuse, New York, 
entitled, ``The Shield Law Moves Closer to Reality,'' dated 14 October 
of this year.
  In the Baltimore Sun, we had an opinion written yesterday in that 
newspaper, ``In Search of Shield,'' in support of the legislation.
  We have heard from the Detroit Free Press from today's paper, ``Vote 
to Pass Law to Shield Reporters,'' in support of this legislation.
  The Los Angeles Times earlier in May wrote an article: ``Shielding 
Journalists: Reporters, and the Country, Would Benefit from a Proposed 
Federal Law to Protect Confidential Sources.''
  The Detroit News in May of this year wrote, ``Why a Federal Shield 
Law is Necessary,'' authored by Christine Tatum.
  The New York Times in two different instances in September and 
October of this year, ``A Shield for the Public,'' was the editorial 
page comment, and in October, ``The Public's Right to Know,'' another 
important article in support of this legislation.

                              {time}  1630

  Here's one that the ranking member would be interested in. The San 
Antonio Express-News: ``Smith's Decision on Shield Law Critical.'' We 
hope that had come to his attention before today.
  The Washington Post, in September: ``Protecting Sources.''
  Another important contribution: ``A Much-Needed Shield for 
Reporters,'' written by Theodore B. Olson in The Washington Post in 
June of this year.
  Finally, from USA Today: ``Our Views on Prosecutors and the Press: 
Jailing of Reporters Chills Free Flow of Information.''
  These are only a few of a notebook full of materials that we wouldn't 
dare introduce this many pieces of material into the Congressional 
Record. I will include for the Record the items that I cited.

                   Submissions to Record on H.R. 2102

       ``Shield Law Moves Closer to Reality.'' The Post-Standard. 
     Syracuse, NY: Opinion Section. 14 October 2007.
       ``In Search of Shield.'' The Baltimore Sun, Baltimore, MD: 
     Opinion Section. 15 October 2007.
       ``Vote to Pass Law to Shield Reporters.'' Detroit Free 
     Press. Detroit, MI: Opinion Section. 16 October 2007.
       Shielding Journalists: Reporters, and the Country, Would 
     Benefit from a Proposed Federal Law to Protect Confidential 
     Sources.'' The Los Angeles Times. Los Angeles, CA: Editorial 
     Page. 27 May 2007.
       Tatum, Christine. ``Why a Federal Shield Law Is 
     Necessary.'' The Detroit News. Detroit, MI. 23 May 2007.
       ``A Shield for the Public.'' The New York Times. New York, 
     NY: Editorial Page. 20 September 2007.
       ``The Public's Right to Know.'' The New York Times. New 
     York, NY: Editorial Page. 9 October 2007.
       ``Smith's Decision on Shield Law Critical.'' San Antonio 
     Express-News. San Antonio, TX: Editorial Page. 28 July 2007.
       ``Protecting Sources.'' The Washington Post. Washington, 
     DC: A-18. 21 September 2007.
       ``Olson, Theodore B. ``A Much-Needed Shield for 
     Reporters.'' The Washington Post. Washington, DC: A-27. 29 
     June 2007.
       ``Our Views on Prosecutors and the Press: Jailing of 
     Reporters Chills Free Flow of Information.'' USA Today. 
     McLean, VA: Editorial page. 14 May 2007.
                                  ____


                 [From the Detroit News, May 23, 2007]

                 Why a Federal Shield Law Is Necessary

                          (By Christine Tatum)

       Regardless of whether you think journalists use too many 
     anonymous sources, it's hard to argue that they don't need to 
     promise confidentiality sometimes.
       Many of the biggest investigative stories of our age have 
     been based in part on information shared with a reporter by 
     someone who wanted to keep his or her identity a secret. 
     Anonymous sources handed over the Pentagon Papers and 
     unmasked the culprits behind Watergate and Enron. They have 
     outed some of the nation's worst corporate polluters. They 
     have helped inform Americans' debates about the Iraq War, the 
     proliferation of nuclear weapons and global warming.
       Yes, sources almost always have an agenda when they speak 
     up, but sometimes they have information of vital interest to 
     the general public and much to lose if they're caught passing 
     it along. If journalists can't protect their sources' 
     identities, you will be much less informed about the world.
       Currently, 49 states (Wyoming is the only unenlightened 
     one) have shield laws or operate under court rulings that 
     grant journalists and their sources a ``privilege'' much like 
     those afforded to clergy, lawyers and their clients and 
     therapists and their patients. This protection applies only 
     to local and state cases, not federal ones.
       Lately, federal prosecutors have dragged too many 
     journalists into court, flaunting subpoenas for notes, work 
     product and recollections of private conversations. The feds' 
     arrogant insistence that journalists should be compelled to 
     act as arms of law enforcement undermines free speech, a free 
     press and an informed citizenry.
       Journalists need a federal shield law. Thankfully, one has 
     been reintroduced in Congress. The Free Flow of Information 
     Act of 2007 has bipartisan support in the House and Senate. 
     The bill's sponsors include Reps. Mike Pence, R-Ind., and 
     Rich Boucher, D-Va., and Sens. Richard Lugar, R-Ind., and 
     Christopher Dodd, D-Conn. All four have fought for a federal 
     shield law for a couple of years, arguing that transparency 
     is good for democracy even if it exposes politicians to more 
     scrutiny.
       Among the bill's provisions: The federal government could 
     not compel a person covered by the shield to provide 
     testimony or produce documents without first showing the need 
     to do so by a ``preponderance of evidence.''; Journalists can 
     be compelled to reveal the identity of sources when the court 
     finds it necessary to prevent ``imminent and actual harm to 
     national security'' or ``imminent death or significant bodily 
     harm.'' Journalists also may be compelled to identify a 
     person who has disclosed trade secrets, health information or 
     nonpublic personal information of any consumer in violation 
     of current law; and people covered by the shield would be 
     those ``engaged in journalism.'' Journalism is defined as 
     ``the gathering, preparing, collecting, photographing, 
     recording, writing, editing, reporting or publishing of news 
     and information for dissemination to the public.'' The bill 
     does not explicitly protect bloggers, but to the extent a 
     court determines they are engaged in the practice of 
     journalism, they are likely to be shielded.
       Even with the protection of a federal shield law, 
     journalists should use anonymous sources sparingly and take 
     great care to explain to the public why a source's identity 
     needs to remain secret. More Capitol Hill reporters should 
     insist their conversations are on the record. Newsrooms 
     should tighten rules regarding the use of anonymous sources, 
     which undermine the credibility of the news and leave 
     journalism with black eyes at the hands of more reporters 
     than we have the space to name here.
       A federal shield law won't end journalists' abuse of 
     anonymous sources, and it won't end prosecutorial witch 
     hunts. It will, however, help the public have access to 
     important information, and that, in the end, is what really 
     matters.
                                  ____


               [From the New York Times, Sept. 20, 2007]

                        A Shield for the Public

       For freedom of the press to be more than a promise and for 
     the public to be kept informed about the doings of its 
     government, especially the doings that the government does 
     not want known, reporters must be able to pursue the news 
     wherever it takes them. One of the most valuable tools they 
     have is the ability to protect the names of confidential 
     sources--people who provide vital information at the risk of 
     their jobs, their careers, and sometimes even their lives.
       That is why it is so important for Congress to finally pass 
     a federal shield law for journalists and why we commend 
     Senators Arlen Specter, Republican of Pennsylvania, and 
     Charles Schumer, Democrat of New York, for a compromise bill 
     designed to achieve passage.
       The bill would create a qualified privilege, which is what 
     this newspaper and other news organizations have sought, not 
     an absolute protection against revealing a source's name 
     under any conceivable circumstance.
       The new measure does not contain everything we would have 
     liked. The shield for sources in the sphere of national 
     security is weaker than in a bill approved by the House 
     Judiciary Committee in August and an earlier proposal by 
     Senators Richard Lugar, Republican of Indiana, and 
     Christopher Dodd, Democrat of Connecticut.
       Under the new bill, in order to compel disclosure of a 
     source, the government would have to show that withholding 
     the information is necessary to prevent a specific act of 
     terrorism against the United States or would

[[Page 27307]]

     create ``significant harm to national security'' that 
     outweighs the public interest in maintaining the flow of 
     information. That is a broad standard and much will depend on 
     judges exercising care to ensure that the government meets 
     its burden to prove that the alleged harm to national 
     security is real.
       However, some tweaking was necessary to reassure hesitating 
     senators that the bill would not permit journalists to 
     withhold information that is truly necessary to protect the 
     United States.
       The compromise has the support of dozens of news 
     organizations, including The New York Times Company. Having 
     worked for months to achieve this accord, Senators Specter 
     and Schumer, and the chairman of the Senate Judiciary 
     Committee, Patrick Leahy of Vermont, must do everything in 
     their power to make sure that there is no further watering 
     down of the protection for reporters and the whistle-blowers, 
     or other insiders who will not speak without a pledge of 
     confidentiality.
       Passage of a federal shield law would be a major 
     achievement. Some 32 states and the District of Columbia have 
     such laws, and 17 other states have recognized a reporter's 
     privilege to maintain the confidentiality of sources through 
     judicial decisions. Prosecutions have not suffered, and it is 
     past time for Congress to act.
       In fact, a virtue of the Specter-Schumer bill is that it 
     removes any excuse by lawmakers to avoid taking a step vital 
     for the press's ability to report, so the public can exercise 
     its right to know what government is doing and to make 
     informed judgments.
                                  ____


               [From the Washington Post, Sept. 21, 2007]

      Protecting Sources: Preserving the Free Flow of Information

       Next week, the Senate Judiciary Committee is scheduled to 
     take up the Free Flow of Information Act of 2007, sponsored 
     by Sens. Arlen Specter (R-Pa.) and Charles E. Schumer (D-
     N.Y.). This finally would bring to the federal government 
     something that exists in 49 states and the District of 
     Columbia: clear protection for the relationship between 
     journalists and their sources.
       Sometimes people who speak to journalists don't want it 
     publicly revealed that they were the source of information 
     that exposed ethically sketchy behavior or criminality; one 
     common reason is a fear of reprisals. The relationship 
     between reporters and confidential sources is rooted in 
     trust, and the accountability it fosters is a foundation of a 
     thriving democracy.
       As with a bill approved last month by the House Judiciary 
     Committee, the Senate measure does not give to reporters a 
     blanket protection against disclosure of sources but instead 
     offers a reasonable balancing of competing interests. 
     Information identifying sources who were promised 
     confidentiality would be covered by the new law. But courts 
     would still be able to compel disclosure in certain 
     circumstances--for example, if national security interests at 
     stake in the case outweighed ``the public interest in 
     gathering news and maintaining the free flow of 
     information.'' The Washington Post Co. and other media 
     organizations that have lobbied for a bill might want more 
     protection, but this represents a reasonable compromise that 
     many legislators, including Sens. Richard G. Lugar (R-Ind.) 
     and Christopher J. Dodd (D-Conn.), have labored to get right.
       More than 40 reporters have been questioned in recent years 
     by federal prosecutors about their sources, notes and reports 
     in civil and criminal cases. No doubt those who would talk to 
     the media confidentially have been chilled by such action. 
     Without adequate protection on the federal level, much 
     information that Americans have a right to know might never 
     be known. That's not good for journalism--and it isn't good 
     for the republic, either.
                                  ____

                                                     June 29, 2006

                   A Much-Needed Shield for Reporters

                         (By Theodore B. Olson)

       Journalists reporting on high-profile legal or political 
     controversies call1lot function effectively without offering 
     some measure of confidentiality to their sources. Their 
     ability to do so yields substantial benefits to the public in 
     the form of stories that might otherwise never be written 
     about corruption, misfeasance and abuse of power. A person 
     with information about wrongdoing is often vulnerable to 
     retaliation if exposed as an informant.
       Yet it has become almost routine for journalists to be 
     slapped with subpoenas seeking the identity of their sources 
     when their reports make it into print or onto the air. From 
     the Valerie Plame imbroglio and the Wen Ho Lee investigation 
     to the use of steroids by professional baseball players, it 
     is now de rigueur to round up the reporters, haul them before 
     a court, and threaten them with heavy fines and jail 
     sentences if they don't cough up names and details concerning 
     their sources.
       Unfortunately, the rules regarding what reporters must 
     disclose, and under what circumstances, remain a hopelessly 
     muddled mess. Ask any reporter today, or his publisher, or 
     his publisher's lawyer, whether a reporter must testify about 
     his sources and you will get a litany of ambiguity. The 
     answer may depend on which court issued the subpoena or the 
     predilections of the judge before whom the reporter is 
     summoned. State courts have their rules and federal courts 
     have another set of standards that differ from one part of 
     the country to another. That means that the journalist cannot 
     tell sources whether promises of confidentiality have any 
     teeth. And that, in turn, means that information vital to the 
     public concerning the integrity of government, or of the 
     national pastime, may never see the light of day.
       It certainly doesn't have to be this way. Reporters do not 
     expect to be above the law. But they should be accorded some 
     protection so that they can perform their public service in 
     ensuring the free flow of information and exposing fraud, 
     dishonesty and improper conduct without being exposed to an 
     unanticipated jail sentence. A free society depends on access 
     to information and on a free and robust press willing to dig 
     out the truth and spread it around. This requires some 
     ability to deal from time to time with sources who, for one 
     reason or another, require the capacity to speak freely but 
     anonymously.
       This is not a novel or threatening concept. Forty-nine 
     states and the District of Columbia have laws protecting the 
     confidentiality of reporters' sources. The Justice Department 
     has had internal standards providing protection to 
     journalists and their sources for 30 years. Yet no such 
     protection exists in federal law. Thus reporters may be 
     protected if they are subpoenaed in state court, but not 
     protected at all if the same subpoena is issued by a federal 
     court. No one benefits from that patchwork of legal 
     standards.
       Congress is moving forward to regularize the rules for 
     reporters, their sources, publishers, broadcasters and 
     judges. The Senate Judiciary Committee will soon take up a 
     bill entitled the Free Flow of Information Act of 2006, 
     sponsored by a bipartisan group of legislators and modeled in 
     large part on the Justice Department guidelines. It does not 
     provide an absolute privilege for confidential sources, but 
     it does require, among other things, that a party seeking 
     information from a journalist be able to demonstrate that the 
     need for that information is real and that it is not 
     available from other sources. Matters involving classified 
     information and national security are treated differently. 
     The current controversy over publications relative to the 
     administration's efforts to deter terrorists does not, 
     therefore, provide any basis for delaying or rejecting this 
     needed legislation.
       This legislation is long overdue and should be enacted. It 
     will not, contrary to its opponents' arguments, hamper law 
     enforcement. The 49 states and the District of Columbia that 
     have such protection have experienced no diminution of law 
     enforcement efforts as a result of these shield laws. Nor 
     will it give reporters any special license beyond the type of 
     common-sense protection we already accord to communications 
     between lawyers and clients, penitents and clerics, doctors 
     and patients and among spouses--where we believe that some 
     degree of confidentiality of communications furthers broad 
     social goals.
       The same is true for journalists and their sources. We all 
     know of stories that we might never have heard but for 
     hardworking reporters who were able to pry vital information 
     from reluctant sources. Watergate, of course, is the most 
     memorable and important example, but others occur every day.
       There is utterly no value served by the current state of 
     confusion regarding when a meaningful promise of 
     confidentiality may be made, or when it will simply be a 
     prelude to a jail sentence for a conscientious reporter.
                                  ____


                 Smith's Decision on Shield Law Crucial

           [From the San Antonio Express-News, June 28, 2007]

       Freedom of the press is crucial to the survival of American 
     democracy.
       And part of that freedom must be allowing journalists to 
     protect confidential sources.
       Whistle-blowers aren't as likely to reveal what is actually 
     happening in government if they are forced to risk all 
     through exposure.
       Knowing as much as possible about government activities is 
     the best way for the public to get a true picture and protect 
     itself from official malfeasance.
       That's why a federal shield law is crucial to preserving a 
     free press.
       Media organizations have been hit with an exponential 
     number of subpoenas from public and private entities seeking 
     to learn about confidential sources in recent years. The 
     harassment is costly, time-consuming and carries a chilling 
     effect on the flow of important information to the public.
       San Antonio Rep. Lamar Smith, the ranking Republican on the 
     House Judiciary Committee, is in a position to protect the 
     free press and the flow of information to the public.
       The panel is scheduled to consider a proposed federal 
     shield law, known as the Free Flow of Information Act, this 
     week.
       As the senior GOP leader on the judiciary panel, Smith's 
     vote will be closely watched.
       The Bush administration opposes the bipartisan legislation, 
     but committee leaders already have made changes to deal with 
     administration concerns about national security. Other 
     objections forwarded by the Justice Department frankly are 
     far-fetched.

[[Page 27308]]

       The legislation would allow prosecutors and others to 
     compel a journalist to testify if the information can't be 
     obtained elsewhere and they convince a judge that the 
     testimony is necessary.
       The legislation would not provide blanket protection for 
     journalists. But it would reduce efforts by lawyers to 
     undermine confidentiality agreements and take shortcuts in 
     the discovery process of routine cases.
       Smith has a record as a friend of a free press and open 
     government. He has advocated improvements in the Freedom of 
     Information Act to allow journalists and the public better 
     access to government records.
       It is vital that Smith again stand up for the public's 
     right to know by preserving the flow of information with the 
     shield law.

  Mr. Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentleman 
from Iowa (Mr. King), who is the ranking member of the Immigration 
Subcommittee of the Judiciary Committee.
  Mr. KING of Iowa. Mr. Speaker, I thank the ranking member from Texas 
(Mr. Smith) for yielding to me. I do appreciate the privilege to serve 
on this committee.
  Mr. Speaker, I rise in opposition to H.R. 2102, the Free Flow of 
Information Act. It would protect journalists in most circumstances 
from having to reveal their sources or produce documents and notes to 
government.
  This is not a problem. The press has flourished for over 200 years 
without a Federal privilege. The Department of Justice reports that 
since 1991 they have issued only 19 subpoenas to reporters seeking 
information. Only 19 since 1991. No one is above the law. Even 
reporters, as the Supreme Court has held, sometimes need to divulge 
information during the investigation of crimes. We have not seen the 
level of professionalism in journalism that we see in the medical 
profession, for example, and I think that is an argument we ought to 
weigh also.
  Mr. Speaker, I would bring up the issue of our national security. 
Some of the people who hide behind the shield of journalism today 
routinely release classified national security data and publish it as 
if it were their patriotic duty and hide behind the shield of 
journalism.
  H.R. 2102 places a heavy burden on the Department of Justice to 
demonstrate a compelling need for a reporter's source, which can be 
negated by the personal whims of hundreds of Federal judges who would 
handle these cases. The shield bill also makes it more difficult for 
the Department of Justice and other government agencies to fight crime 
and protect our national security. For example, the bill contains a 
limited number of examples where the privilege doesn't apply. Most of 
the Department of Justice crime fighting activity, such as efforts to 
combat child pornography or alien smuggling, is not addressed under 
this bill.
  For example, there is a flaw in the bill because the Department of 
Justice could obtain source information to prevent a terrorist attack 
but not acquire the same information after the fact, after an attack, 
say, on the Twin Towers or on the Capitol. Additionally, H.R. 2102's 
definition of a journalist is so broad it would protect the media 
outlets of designated terrorist organizations, even terrorists 
themselves. I know the chairman has addressed that issue, but the 
language still remains broad.
  Congress, State legislatures, and the courts have taken significant 
steps in certain circumstances to assure confidentiality, as have 49 
States. Examples of protected information include pre-patent research, 
a person's medical records, the fact that someone may have sought 
medical health care, information related to a victim of sexual 
violence. The list goes on.
  Mr. Speaker, with these very private subjects, there are significant 
legal, moral, or fiduciary obligations granted to protect people when 
their disclosure could cause serious and irrevocable hardships. People 
who improperly disclose them should not be protected through a media 
shield law just because they gave the information to a reporter or 
blogger, not someone else.
  Historically, when Congress has enacted public access legislation, it 
has balanced the competing rights of personal and business privacy. 
Consider the Freedom of Information Act. It is one of the most 
important ``public right to know'' statutes in this country's history. 
FOIA specifically exempts from disclosure information protected by law, 
proprietary or privileged business information, and information that 
could lead to unwarranted invasions of personal privacy. Similarly, 
whistle-blower laws only protect the reporting of information related 
to suspected wrongdoing, not the disclosure of all private information. 
Congress's long-standing commitment to these distinctions in protecting 
confidential and proprietary information can and should be continued.
  Mr. Speaker, H.R. 2102 protects the inappropriate leaking of a good 
deal of legitimately private information in the same way it protects a 
source who has disclosed information in an appropriate situation. For 
example, if a source told a reporter the name of a victim of a sexual 
assault, H.R. 2102 would block the victim from holding the leaker-
source accountable for any harm such a story could cause.
  The same would be true for information related to the location of a 
domestic violence safe house or employee records that might include 
Social Security numbers and credit information from stores and credit 
bureaus. It could also provide an absolute privilege when a source for 
purely personal purposes leaked information in violation of a specific 
court order protecting the contents of discovery or settlements that 
were sealed by a court. When and if such information appears in the 
media, the person harmed would be unable to use the judicial process to 
assure that the law fulfilled its purpose, even when every other avenue 
had been pursued to no avail.
  So my question is, Mr. Speaker, what are we trying to fix? What is 
the problem? Nineteen subpoenas since 1991, a handful of cases stacked 
up against a mountain of information that has been pored through in the 
public media, classified information leaked into the New York Times, 
for example, jeopardizing our national security, and what is Congress 
doing about that? We are coming here to produce a shield law to protect 
even more of the same behavior.
  Mr. CONYERS. Mr. Speaker, it is now my privilege to recognize the 
Speaker of the House, Ms. Nancy Pelosi, for 1 minute.
  Ms. PELOSI. Mr. Speaker, I thank the distinguished chairman for 
yielding, and I appreciate his strong leadership in protecting and 
defending the Constitution of the United States. He leads us well in 
honoring our oath of office that we take.
  I commend the cosponsors of this bipartisan legislation, Mr. Boucher 
and Mr. Pence, for their leadership and commitment to working in a 
bipartisan way on an issue central to our democracy.
  Thomas Jefferson once wrote, ``Our liberty depends on the freedom of 
the press, and that cannot be limited without being lost.'' Freedom of 
the press, protected by the first amendment, has been a cornerstone of 
our democracy, one that we cherish and promote around the world.
  A free press keeps our Nation informed and holds those of us in 
government accountable. It is critical to freedom of speech and 
expression in our country. Freedom of the press is fundamental to our 
democracy and it is fundamental to our security.
  Speaking truth to power is vital to our democracy today, as it has 
been throughout our history.
  Mr. Speaker, the recent contracting scandals in Iraq, the appalling 
care of our wounded soldiers at Walter Reed Hospital, and the hidden 
Medicare drug prescription estimates a few years ago are several of the 
many examples where press coverage shaped our debate and our actions. 
These stories are central to accountability, the accountability 
necessary to make our Nation stronger and to be better stewards of the 
taxpayers' dollars.
  However, the essential work of the press has been severely hampered 
by the lack of a consistent Federal standard or a federally recognized 
privilege concerning the disclosure of confidential sources by 
journalists. As a result,

[[Page 27309]]

in recent years, more than 40 reporters have been subpoenaed for the 
identities of confidential sources in nearly a dozen cases.
  Former Solicitor General Ted Olson, who served under President George 
W. Bush, wrote recently in The Washington Post, ``Journalists reporting 
on high-profile controversies cannot function effectively without 
offering some measure of confidentiality to their sources. Their 
ability to do so yields substantial benefits to the public in the form 
of stories that might otherwise never be written about corruption and 
abuse of power.''
  Nearly all States have some form of press shield protecting the 
confidentiality of journalist sources; however, that protection is 
lacking at the Federal level and in the Federal courts.
  It is for this reason that I have long supported a Federal press 
shield law, without which freedom of the press is threatened. The 
Federal Government's policies and actions should protect and preserve 
the press's ability to speak truth to power. And this legislation does 
so with appropriate national security safeguards, striking a careful 
balance between liberty and security.
  Freedom of the press has long been an issue of importance to many of 
us in this body. When I was the ranking member of the Intelligence 
Committee, I encouraged President Clinton to veto the Intelligence 
Committee authorization bill one year because it made it easier to 
prosecute journalists. We fixed those provisions and passed a bill that 
both protected our Nation and protected our fundamental freedoms.
  Mr. Speaker, we seek today to protect the freedom of the press that 
has served our Nation so well. We also seek to make clear to 
confidential sources that they will be protected in most circumstances 
when they bring forward public evidence of waste, fraud and abuse in 
government and in the private sector.
  As we protect and defend our Nation, we must now protect and defend 
the Constitution by enabling our press to be free, as our Founders 
envisioned.
  I urge my colleagues to support this legislation.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes for the 
purpose of engaging in a colloquy with my friend from Indiana (Mr. 
Pence). I have a question I would like to ask him.
  The bill states that the determination as to whether the testimony or 
document is critical to the underlying matter is to be made ``based on 
information obtained from a person other than the covered person,'' the 
covered person being the journalist. There has been some confusion as 
to what is meant by ``information from the covered person.''
  In the Washington Post on October 4, Patrick Fitzgerald, who was the 
U.S. Attorney in the Scooter Libby case, wrote, ``The bill puzzlingly 
requires that agents prove that the leak occurred without relying on 
the newspaper article.''
  Is Mr. Fitzgerald right? Does this provision mean that the party 
seeking the subpoena cannot use the very newspaper article at issue in 
the lawsuit to show why the reporter's testimony is needed?
  I yield to the gentleman from Indiana.
  Mr. PENCE. I thank the gentleman for yielding, and I thank him for a 
thoughtful question.
  The answer would be no, that was not our intent and it is not how 
this provision should be read. This provision is meant to close a 
potential loophole in the bill. Without this provision, we were 
concerned that a person would be able to call a journalist to testify 
or provide documents for the purpose of showing why the journalist's 
testimony or documents are needed in the litigation. That obviously 
would short-circuit the statute and would not make sense.
  The news article would be a matter of public record and would not be 
obtained from the journalist, and therefore could be used at such a 
hearing.
  Mr. SMITH of Texas. I thank the gentleman from Indiana for his answer 
to my question. That is much appreciated.
  Mr. Speaker, I am the last speaker on this side, and I know the 
chairman of the Judiciary Committee has the right to close. I wonder if 
he has any additional speakers.
  Mr. CONYERS. I have none.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my 
time.
  Mr. Speaker, let me summarize the objections to this legislation. The 
White House, the Justice Department, the Acting Director of National 
Intelligence and many law enforcement officials oppose H.R. 2102 
because they believe it diminishes legal rights, public safety and 
endangers national security. The Department of Justice is concerned 
that this legislation will impede its efforts to conduct investigations 
and prosecute criminals.
  For 200 years, information has flowed freely to the press. Congress 
need not enact H.R. 2102, when the status quo is working and the 
legislation's potential harm to our national security is so 
significant.
  Our Founders created a legal system where no one is above the law. 
But if the media shield bill passes, we will be carving out a special 
exception to that rule for reporters, tabloids and bloggers.

                              {time}  1645

  This is not what our Founders intended when they created a free 
press. No one should be above the law, not even the press. We must err 
on the side of caution and not support legislation that could make it 
harder to apprehend criminals and terrorists or deter their activities. 
I urge my colleagues to oppose this legislation.
  Mr. Speaker, I yield back the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time and 
just want to say that we have not given up on the possibility of 
winning some modest support from the ranking member of the Judiciary 
Committee. He has negotiated with us in good faith. We continue to work 
on any improvements. I am very proud of the work that the gentleman 
from Virginia (Mr. Boucher) and the gentleman from Indiana (Mr. Pence) 
have put forward, and I want to thank Members of the House on both 
sides. There is apparently a large number of bipartisan supporters for 
this measure. I want to assure the House that we are moving forward 
with deliberate speed, and it is in that sense that I continue to urge 
support for the measure.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise to speak in strong 
support of H.R. 2102, the Free Flow of Information Act of 2007, which I 
am proud to co-sponsor. This legislation provides a qualified immunity 
from prosecution or contempt to journalists for refusing to disclose 
confidential sources or information.
  Let me say, Mr. Speaker, that I am confident that this legislation 
adequately addresses and resolves the conflict between society's 
competing interests in a free and vigorous press, on the one hand, and 
not unduly hampering the ability of law enforcement to investigate and 
prosecute crimes.
  Mr. Speaker, when it comes to the freedom of the press, the 
Department of Justice's Statement of Policy is clear. It states 
``Because freedom of the press can be no broader than the freedom of 
reporters to investigate and report the news, the prosecutorial power 
of the government should not be used in such a way that it impairs a 
reporter's responsibility to cover as broadly as possible controversial 
public issues.'' 28 C.F.R. 50.10.
  I have long been a strong proponent of a qualified privilege for 
journalists. Indeed, in 2001 I spoke out in favor of the need for such 
a privilege when I went to the Federal Detention Center in Houston 
today to support the efforts of Professor Vanessa Leggett, a 33-year-
old freelance non-fiction writer who had been jailed without bond since 
July 20, 2001 for asserting her journalistic privilege and First 
Amendment right not to reveal confidential source information.
  After visiting Professor Vanessa Leggett I became convinced of the 
justice of her cause and the importance of her case. Professor Leggett 
had spent four years researching the 1997 murder of Doris Angleton. 
When she refused to give in to threats and intimidation by an 
overzealous prosecution, and asserted her First Amendment rights in a 
grand jury investigation, she was found in contempt and jailed.
  Mr. Speaker, like you I believe the First Amendment is the most 
important amendment in the Bill of Rights. And it is not a coincidence 
that the freedoms of speech and press are the first freedoms listed in 
the First Amendment.

[[Page 27310]]

  I believe allowing journalists the right to maintain the 
confidentiality of their sources when doing research must be protected 
because it is indispensable to a free press which is the sine qua non 
of a free society. We must heed the counsel of Justice
  Douglas's dissent in Branzburg v. Hayes, 408 U.S. 665 (1972): ``The 
people, the ultimate governors [of our democracy], must have absolute 
freedom of and therefore privacy of their individual opinions and 
beliefs.'' Justice Douglas reminds us that ``effective self-government 
cannot succeed unless the people are immersed in a steady, robust, 
unimpeded, and uncensored flow of opinion and reporting which are 
continuously subjected to critique, rebuttal, and re-examination.''
  Again, this principle, codified at Title 28 CFR 50.10 of the 
Department of Justice Statement of Policy, clearly recognizes and 
protects one of our most sacred democratic institutions: the media. It 
requires, for example, that the Department of Justice ``strike the 
proper balance between the public's interest in effective law 
enforcement and the fair administration of justice,'' while other 
subsections clearly require that sanctions, such as those administered 
by the Department of Justice in this case, shall be reviewed by the 
Attorney General. As such, this Section presents a tension with the 
Court precedents set in Branzburg and in Jascalevich.
  The Supreme Court's decisions in Branzburg v. Hayes, 408 U.S. 665 
(1972), and New York Times v. Jascalevich, 439 U.S. 1331 (1978) 
establish the precedent that a journalist cannot rely upon an absolute 
First Amendment-based privilege to justify refusal to testify when 
called by a grand jury, unless the grand jury investigation is 
instigated in bad faith. However, since the Court handed down its 
decision in Branzburg, 49 states and the District of Columbia now 
recognize some version of a shield law protecting the press, to varying 
degrees, from unfettered disclosure of sources, work product, and 
information generally.
  These various state protections range in type and scope, from broad 
protections that provide an absolute journalistic privilege to shield 
laws that offer only qualified protection. The majority of state shield 
laws currently in place offer some form of a qualified privilege to 
reporters, protecting source information in judicial settings, unless 
the compelling party can establish that the information is: (1) 
relevant or material; (2) unavailable by other means, or through other 
sources; and (3) a compelling need exists for that information. There 
is considerable variation among the states on the last prong, with some 
requiring the party seeking disclosure to establish a compelling need 
for the information. Other states require a compelling showing that 
disclosure is needed to achieve a broader and greater public policy 
purpose.
  In Federal courts, however, there is no current uniform set of 
standards to govern when testimony can be sought from reporters. 
Rather, the Federal jurisprudence has developed on an ad hoc, case-by-
case basis. That is why we need, and I support, H.R. 2102.
  H.R. 2102 establishes a procedure by which disclosure of confidential 
information from a journalist may not be compelled to testify or 
provide documents related to information obtained or created by the 
journalist unless the following conditions are met by a preponderance 
of the evidence and after notice to be heard: (1) The party seeking 
production must have exhausted all reasonable alternative sources of 
the information; (2) in the case of a criminal investigation, the party 
seeking production must have reasonable grounds to believe a crime has 
occurred and the information sought is critical to the case; (3) 
disclosure is necessary to: prevent an act of terrorism against the 
United States or other significant specified harm to national security 
or to prevent imminent death or significant bodily harm or to identify 
a person who has disclosed a trade secret actionable under 18 U.S.C. 
Sec. 1831 or Sec. 1832; or (4) the party seeking production must prove 
that the public interest in compelling disclosure outweighs the public 
interest in gathering or disseminating news or information.
  Mr. Speaker, section 4 of the bill defines the key terms used in this 
bill. A ``Covered Person'' is a person who, for financial gain or 
livelihood, is engaged in journalism, including supervisors, employers, 
parents, subsidiaries, or affiliates of a covered person. 
``Journalism'' is defined as the ``gathering, preparing, collecting, 
photographing, recording, writing, editing, reporting, or publishing of 
news or information that concerns local, national, or international 
events or other matters of public interest for dissemination to the 
public.''
  Mr. Speaker, I applaud and commend Mr. Boucher's efforts to address 
the many concerns of his colleagues relating to the scope of a 
``covered person'' and the definition of ``journalism.'' Initially, I 
was troubled that one day in the future some runaway court or wayward 
judge may construe these definitions so narrowly that situations like 
the one involving Vanessa Leggett that I have previously discussed 
would be excluded. However, based on my consultations with the lead 
sponsors, as well as my detailed discussions and consultations with 
groups like the Reporters Committee for Freedom of the Press, I am 
satisfied that the proposed language is broad enough to cover 
journalists who are in Vanessa Leggett's situation.
  Under this legislation, a freelance journalist facing a similar 
subpoena will be able to represent to a judge that at the time she was 
talking to sources, she represented to them that she was working on a 
story or non-fiction book that she planned to sell to a newspaper or 
magazine or publisher. A reasonable judge would have little choice but 
to find her to be covered by the statute.
  Mr. Speaker, it is interesting to note that the District Court and 
the 5th Circuit never questioned Vanessa Leggett's status as a 
journalist. Rather, the court assumed she was a journalist using the 
test of In re von Bulow, 828 F2d 94 (2d Cir. 1987). If the issue of a 
freelancer being covered was found to be vague in the statute, I 
believe a court would revert to the von Bulow standard, which holds 
someone is a journalist if she represented to her sources at the time 
of the interview that she was a journalist and was gathering 
information intending to write a story to disseminate to an audience.
  In short, Mr. Speaker, because I believe the language of the bill now 
leaves no doubt that the Congress specifically intends the Free Flow of 
Information Act to cover situations similar to the Vanessa Leggett 
case, I strongly support this legislation and urge my colleagues to 
join me in voting for H.R. 2102.
  Mr. UDALL of Colorado. Mr. Speaker, I support this legislation and 
urge its passage.
  The bill is intended to provide journalists with a limited, qualified 
shield against efforts by prosecutors or other officials to compel 
public disclosure of the identities of whistleblowers or other sources 
of information.
  Like 48 other States (and the District of Columbia), Colorado has 
already provided a similar protection for journalists, but of course 
that State law does not apply in Federal cases--for that a Federal 
statute is required, which is the purpose of this legislation.
  And while I recognize that the Justice Department thinks no such law 
is needed--their view is that their own guidelines adequately deal with 
the subject--I think our experience in Colorado shows that it is 
possible to provide the assured protection that comes with a statutory 
shield without compromising the investigation of wrongdoing or the 
vigorous prosecution of crime.
  I think this legislation does a good job of achieving a similar 
balance between protection for investigative journalists and their 
sources while maintaining the ability of the government to protect 
national security and conduct effective law enforcement.
  Under the bill, journalists would be required to testify if a judge 
finds that a prosecutor, criminal defendant or civil litigant has shown 
by a preponderance of the evidence that an applicable test for 
compelled disclosure has been met.
  For a prosecutor, that means showing that he or she had exhausted 
alternative sources before demanding information, that the sought-after 
material was relevant and critical to proving a case, and that the 
public interest in requiring disclosure would outweigh the public 
interest in news gathering.
  The bill includes special rules for cases involving leaks of 
classified information or involving a journalist's being an eye witness 
to a crime.
  The bill will enable federal law enforcement authorities to obtain an 
order compelling disclosure of the identity of a source in the course 
of an investigation of a leak of properly classified information. It 
also provides that disclosure of a leaker's identity can be compelled 
whenever the leak has caused or will cause ``significant and 
articulable harm to the national security.''
  And the bill also permits law enforcement to obtain an order 
compelling disclosure of documents and information obtained as the 
result of eyewitness observations by journalists of alleged criminal or 
tortious conduct, as well as cases involving alleged criminal conduct 
by journalists themselves.
  And, in addition to provisions designed to guard against impairing 
efforts to prevent acts of terrorism, threats to national security, and 
death or bodily harm to members of the public, there are similar 
provisions to guard and make sure the legislation will not thwart 
efforts to identify those who disclose significant trade secrets or 
certain financial or medical information in violation of current law.

[[Page 27311]]

  Mr. Speaker, the need for this legislation was well expressed by 
former Solicitor General Theodore B. Olsen in an article published in 
the October 4th edition of the Washington Post.
  In that article, Mr. Olsen said:

       . . . journalists reporting on high-profile controversies 
     cannot function effectively without offering some measure of 
     confidentiality to their sources. Their ability to do so 
     yields substantial benefits to the public in the form of 
     stories that might otherwise never be written about 
     corruption and abuse of power. A person with information 
     about wrongdoing is often vulnerable to retaliation if 
     exposed . . . Yet it has become almost routine for 
     journalists to be slapped with federal subpoenas seeking the 
     identity of their sources.
       Reporters do not expect to be above the law. But they 
     should receive some protection so they can perform their 
     public service in ensuring the free flow of information and 
     exposing improper conduct without risking jail sentences.
       The lack of federal protection makes for an especially 
     strange state of affairs because the Justice Department has 
     had internal standards providing protection to journalists 
     and their sources for 35 years, and Special Counsel Patrick 
     J. Fitzgerald claimed to be adhering to those standards when 
     he subpoenaed reporters in the Plame affair. Thus, as Judge 
     Robert Sack of the U.S. Court of Appeals for the 2nd Circuit 
     has noted, the only real question is whether federal courts 
     should be given some supervisory authority to ensure that 
     prosecutors have, in fact, met governing standards before 
     forcing reporters to testify. The answer seems obvious: yes.
       The District and the 49 states with shield laws have 
     experienced no diminution of law enforcement efforts as a 
     result of those laws. The legislation would not give 
     reporters special license beyond the type of common-sense 
     protection we already accord to communications between 
     lawyers and clients, between spouses and in other contexts 
     where we believe some degree of confidentiality furthers 
     societal goals.
       This legislation is well balanced and long overdue, and it 
     should be enacted.

  I agree with Mr. Olson, and I urge all our colleagues to join me in 
voting for this bill.
  Mr. ISSA. Mr. Speaker, I rise in opposition to H.R. 2102, the Free 
Flow of Information Act. This bill goes too far in jeopardizing our 
national security.
  The freedom of the press is an immensely important principal in our 
democratic society. That is why the Department of Justice (DOJ) has for 
the past 35 years followed a policy that strictly limits when Federal 
prosecutors are allowed to issue subpoenas to the press. These 
standards are so difficult to meet that prosecutors, under this current 
policy, are commonly discouraged from even seeking a subpoena for a 
reporter in the first place.
  These protections, which are far reaching, should not be absolute. 
When critical, highly sensitive national security information is 
illegally disclosed to members of the news media and published for 
every enemy of America to see--Federal prosecutors must be empowered to 
aggressively investigate the disclosure of that information and the 
prosecution of those responsible. We simply cannot erect obstacles 
which hamstring Federal law enforcement when sensitive government 
secrets are divulged. Such disclosure can be treasonous, and reporters 
should not be able to protect individuals who jeopardize our national 
security. American lives are more important than the privilege of 
anonymity that reporters promise to a source who is compromising our 
nation's secrets.
  According to the DOJ, the ``unduly narrow exception to the 
legislation's broad prohibition on compelled disclosure would hinder 
efforts to investigate and prosecute those who have leaked classified 
information, undermine the ability of law enforcement to investigate 
national security breaches that have already occurred, and weaken 
Federal efforts to mitigate damage to national security that has 
already taken place.'' As a member of both the Committees on Judiciary 
and the Permanent Select Committee on Intelligence, I find these faults 
with the bill unacceptable.
  While I do not stand in opposition to my friends Representatives Mike 
Pence and Rick Boucher, the primary sponsors of this legislation, I 
must ask my colleagues to vote no on this bill. H.R. 2102 establishes 
new dangers without sufficient justification.
  Mr. STARK. Mr. Speaker, I rise today in support of freedom of the 
press and an informed public.
  The Free Flow of Information Act (H.R. 2102) is a straightforward 
bill that will protect journalists from being legally obligated to 
disclose their confidential sources of information. This will allow 
sources to speak more freely, allowing for the vibrant exchange of 
important information between reporters, their contacts and the public.
  Predictably, George Bush's Department of Injustice opposes today's 
legislation, in part because the Administration issued more than 300 
subpoenas last year alone. That's understandable. If I had a track 
record of wasting money on a failing war, abusing civil liberties, 
suppressing scientific research, and failing to enforce important 
consumer protections and environmental regulations, I too would want to 
keep the press and the public in the dark.
  But it is also despicable. Forty-nine states and the District of 
Columbia already recognize a reporter's privilege to keep confidential 
sources, and to do so without risking interrogation or prosecution. A 
federal media shield law would further protect the public's right to 
know about corruption, waste and mismanagement in and out of 
government.
  In the past few years, journalists have depended on confidential 
sources to inform them about the torture of Iraqi prisoners at Abu 
Ghraib, the disclosure of CIA prisons in Eastern Europe, and the 
President's warrantless wiretapping program. If we left it up to the 
administration to decide what went into news stories, we would have 
headlines that told us the war in Iraq is a smashing success and that 
Dick Cheney's hunting technique is unparalleled.
  The Constitution guarantees the right to a free press. That freedom 
depends on not having to worry about being punished for revealing 
information that the public has a right to know. I urge my colleagues 
to vote in support of this bill.
  Mr. HOLT. Mr. Speaker, I am pleased the House is taking action today 
to help protect reporters from prosecutions simply for doing their 
jobs.
  Over the last few years, more than forty reporters have been 
subpoenaed for the identities of confidential sources in nearly a dozen 
cases. Although the Department of Justice has promulgated voluntary 
guidelines for issuing subpoenas to the media and reporters, these 
guidelines do not apply to civil litigants in federal court and give 
unreviewable discretion to special prosecutors.
  H.R. 2102 would establish a Federal standard for all parties--
prosecutors, civil litigants, journalists and sources--and send a 
signal to potential sources that they will be protected in most 
circumstances when they pass to news organizations evidence of waste, 
fraud and abuse in government and in the private sector.
  The bill requires journalists to testify at the request of criminal 
prosecutors, criminal defendants and civil litigants who have shown by 
a preponderance of the evidence that they have met the various tests 
for compelled disclosure. The bill contains provisions to ensure that 
the privilege would not impair law enforcement's efforts to identify a 
person who has disclosed significant trade secrets or certain financial 
or medical information in violation of current law.
  In the case of national security issues, the test is that 
``disclosure of the identity of such a source is necessary to prevent 
an act of terrorism against the United States or its allies or other 
significant and specified harm to national security with the objective 
to prevent such harm.'' It is the latter half of this clause that would 
allow the Justice Department to compel testimony from reporters in 
national security leak cases.
  It is important that we ensure that information that is properly 
classified be protected from unauthorized disclosure. However, as we've 
seen repeatedly over the last century, too often government officials 
will misuse the classification system to hide evidence of their own 
lawbreaking. It will be important for Congress to carefully monitor how 
this particular provision is employed by the Department of Justice to 
ensure it is not abused in a way that prevents Congress and the public 
from learning about violations of law carried out in the name of 
protecting the nation's security.
  Organizations representing publishers, broadcasters, and journalists 
agree that this legislation provides a suitable framework for balancing 
the needs of a free press with the need to uphold our laws, and on 
balance, so do I. I urge my colleagues to vote for this important 
legislation.
  Mr. SHAYS. Mr. Speaker, as a cosponsor of H.R. 2102, the Free Flow of 
Information Act, I am pleased to support this legislation on the House 
floor today.
  I support this bill because I believe news reporting fosters public 
awareness of important public issues and is an important means of 
ensuring government accountability.
  This legislation would create criteria that must be met before a 
Federal entity may subpoena a member of the news media in any 
government, criminal or civil case.
  H.R. 2102 closely follows existing Department of Justice guidelines 
for issuing subpoenas to members of the news media.
  It simply makes the guidelines mandatory and provides protection 
against compelled disclosure of confidential sources.

[[Page 27312]]

  In doing so, I believe this legislation strikes a balance between the 
public's need for information and the fair administration of justice.
  Mr. Speaker, I urge support for this bill.
  Mrs. MALONEY of New York. Mr. Speaker, I rise today in strong support 
of the Free Flow of Information Act, H.R. 2102, legislation that would 
prevent journalists from being forced to reveal their confidential 
sources in legal proceedings.
  This important bill has strong bipartisan support and the endorsement 
of countless news organizations and the Newspaper Association of 
America.
  The ``press shield'' is critical to the functioning of our democracy. 
Compelling reporters to testify and reveal the identity of confidential 
sources hinders the free flow of information. Many people with 
important information about government wrongdoing would rather stay 
quiet than reveal their identities. Sometimes the only way a reporter 
can gain access to a source's information, and bring it to the public's 
attention, is by guaranteeing that source confidentiality.
  H.R. 2012 strikes a commonsense balance between the public's need for 
information and fair justice. It would compel reporters to reveal the 
identity of a source if the court finds it necessary to prevent 
``imminent and actual harm to national security'' or ``imminent death 
or significant bodily harm.''
  The First Amendment states that, ``Congress shall make no law . . . 
abridging the freedom of speech, or of the press.'' The Founding 
Fathers clearly envisioned a free press that would enable the 
electorate to make informed decisions and hold the government in check. 
That's precisely what this bill would do.
  I urge my colleagues to support H.R. 2012 and protect the free press 
that our Founders envisioned.
  Mr. CONYERS. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. All time for debate on the bill has expired.


                 Amendment No. 1 Offered by Mr. Boucher

  Mr. BOUCHER. Mr. Speaker, I have an amendment at the desk.
  The SPEAKER pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 1 printed in House Report 110-338 offered by 
     Mr. Boucher:
       Page 3, line 24, strike ``to prevent'' and insert ``to 
     prevent, or to identify any perpetrator of,''.
       Page 4, line 6, strike ``or''.
       Page 4, line 22, strike ``and'' and insert ``or''.
       Page 4, after line 22, insert the following:
       (D)(i) disclosure of the identity of such a source is 
     essential to identify in a criminal investigation or 
     prosecution a person who without authorization disclosed 
     properly classified information and who at the time of such 
     disclosure had authorized access to such information; and
       (ii) such unauthorized disclosure has caused or will cause 
     significant and articulable harm to the national security; 
     and
       Page 5, after line 19, insert the following:
       (d) Exception Relating to Criminal or Tortious Conduct.--
     The provisions of this section shall not prohibit or 
     otherwise limit a Federal entity in any matter arising under 
     Federal law from compelling a covered person to disclose any 
     information, record, document, or item obtained as the result 
     of the eyewitness observation by the covered person of 
     alleged criminal conduct or as the result of the commission 
     of alleged criminal or tortious conduct by the covered 
     person, including any physical evidence or visual or audio 
     recording of the conduct, if a Federal court determines that 
     the party seeking to compel such disclosure has exhausted all 
     other reasonable efforts to obtain the information, record, 
     document, or item, respectively, from alternative sources. 
     The previous sentence shall not apply, and subsections (a) 
     and (b) shall apply, in the case that the alleged criminal 
     conduct observed by the covered person or the alleged 
     criminal or tortious conduct committed by the covered person 
     is the act of transmitting or communicating the information, 
     record, document, or item sought for disclosure.
       Page 7, strike lines 14 through 18 and insert the 
     following:
       (2) Covered person.--The term ``covered person'' means a 
     person who regularly gathers, prepares, collects, 
     photographs, records, writes, edits, reports, or publishes 
     news or information that concerns local, national, or 
     international events or other matters of public interest for 
     dissemination to the public for a substantial portion of the 
     person's livelihood or for substantial financial gain and 
     includes a supervisor, employer, parent, subsidiary, or 
     affiliate of such covered person. Such term shall not 
     include--
       Page 7, line 22, strike ``or''.
       Page 7, line 26, strike the period and insert a semi-colon.
       Page 7, after line 26, insert the following:
       (C) any person included on the Annex to Executive Order 
     13224, of September 23, 2001, and any other person identified 
     under section 1 of that Executive order whose property and 
     interests in property are blocked by that section;
       (D) any person who is a specially designated terrorist, as 
     that term is defined in section 595.311 of title 31, Code of 
     Federal Regulations (or any successor thereto); or
       (E) any 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)).

  The SPEAKER pro tempore. Pursuant to House Resolution 742, the 
gentleman from Virginia (Mr. Boucher) and a Member opposed each will 
control 5 minutes.
  The Chair recognizes the gentleman from Virginia.
  Mr. BOUCHER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the amendment I am pleased to offer at this time, along 
with the principal co-author of this legislation, the gentleman from 
Indiana (Mr. Pence), incorporates recommendations that were made to us 
by a number of members of the House Judiciary Committee and other 
interested Members of the House both during the extensive markup of 
this legislation in the committee and in the time intervening between 
then and now.
  The legislation was broadly supported in that committee and was 
approved by voice vote in that committee, and the recommendations that 
we have received now incorporated into this manager's amendment came 
from members of the committee and other Members of the House both on 
the Democratic and Republican sides. We have folded those various 
recommendations into the manager's amendment.
  These amendments that are folded into the manager's amendment further 
limit the scope of the privilege that is conferred by the legislation 
itself.
  First, the amendment expands the instances in which source disclosure 
can be compelled to include a leak by the source of properly classified 
information where the leak has caused a significant and articulable 
harm to national security.
  Secondly, source disclosure could be compelled when the reporter 
personally witnesses criminal conduct or when the reporter is himself 
involved in criminal conduct.
  Third, source disclosure could occur when necessary to identify any 
perpetrator of an act of terrorism against the United States or other 
significant and specified harm to national security.
  The amendment also narrows the definition of the individuals who may 
assert the privilege to refrain from revealing confidential sources in 
Federal court proceedings. Under the amendment, only people who are 
regularly engaged in news gathering and reporting and who receive 
substantial financial gain or receive a substantial portion of their 
livelihood from the journalistic activity will qualify.
  The amendment will also deny the privilege to journalists who have 
been designated as terrorists pursuant to law or who are employed by a 
terrorist organization as designated pursuant to law.
  We offer this amendment on a bipartisan basis, and we ask for its 
approval by the House.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, although I am not opposed to the 
amendment, I ask unanimous consent to control the time in opposition to 
the amendment.
  The SPEAKER pro tempore. Without objection, the gentleman is 
recognized for 5 minutes.
  There was no objection.
  Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman 
from Indiana (Mr. Pence).
  Mr. PENCE. Mr. Speaker, under the provisions of the Free Flow of 
Information Act where a reporter is being asked to reveal the identity 
of a confidential source, the underlying bill here provides several 
exceptions where a reporter may be compelled to reveal a source. 
Sources can be revealed under exceptions for the prevention of 
terrorism, other harm to the Nation's security, to prevent bodily harm, 
in cases

[[Page 27313]]

where trade secrets and personal health information are revealed.
  As a result of Chairman Conyers' bipartisan working group, we have 
conceived of the Boucher-Pence bipartisan manager's amendment, and I 
rise to support it.
  It adds additional exceptions to the bill. Under it, compelled 
disclosure of a source will be permitted in cases of unauthorized leaks 
of national security secrets. Also, if a journalist is an eyewitness to 
a crime or tortious conduct, the journalist cannot claim the privilege 
of the shield and can be required to turn over information documents.
  Also, as Mr. Boucher said, the amendment makes two changes regarding 
the definition of a covered person. Covered persons are those who are 
able to use the shield, and we have been discussing how we define 
journalists throughout the history of this debate. In the manager's 
amendment, we restrict coverage to those people who regularly engage in 
journalism for substantial financial gain or a substantial part of 
their livelihood. And this way, the definition will exclude casual 
bloggers but not all bloggers, criminal offenders or the media wings of 
terrorist groups who are not practicing journalism. It also adds 
further exclusions to the list of terrorist organizations which are 
excluded in order to supplement the language already there to make it 
100 percent clear that terrorists cannot claim the privilege of this 
bill.
  I believe the Boucher-Pence manager's amendment, as the entirety of 
the bill, is a result of bipartisan cooperation. I believe the Boucher-
Pence manager's amendment improves the Free Flow of Information Act. I 
urge my colleagues on both sides of the aisle to support it.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my 
time.
  I support the manager's amendment offered by the gentleman from 
Virginia (Mr. Boucher). The provisions of the amendment do improve the 
bill by addressing some of the Justice Department's concerns. Despite 
this, it still does not cure the bill's fundamental flaws.
  The legislation will still make it impossible to enforce certain 
criminal laws and will impede national security investigation. While I 
commend the sponsors of the amendment for trying to address the Justice 
Department's concern, even if the amendment is adopted, the bill should 
still be opposed. So I urge Members to support the amendment and oppose 
the underlying bill.
  Mr. Speaker, I yield back the balance of my time.
  Mr. BOUCHER. Mr. Speaker, I am pleased to yield such time as he may 
consume to the distinguished chairman of the House Judiciary Committee, 
the gentleman from Michigan (Mr. Conyers).
  Mr. CONYERS. Mr. Speaker, I am delighted and I congratulate the 
ranking member for joining us in supporting the Boucher-Pence manager's 
amendment. We think that we can move even further. Here is an amendment 
that alters the standard for piercing the shield where national 
security is involved. Also, it enables law enforcement to obtain an 
order compelling disclosure of the identity of a source in the course 
of a leak investigation.
  So I am very happy about this. I think that it portends that there 
may be other areas of agreement that we will be able to reach. I thank 
the gentleman for yielding me the time.
  Mr. BOUCHER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. Pursuant to House Resolution 742, the 
previous question is ordered on the bill, as amended, and on the 
further amendment by the gentleman from Virginia (Mr. Boucher).
  The question is on the amendment offered by the gentleman from 
Virginia.
  The amendment was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.


            Motion to Recommit Offered by Mr. Smith of Texas

  Mr. SMITH of Texas. Mr. Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. SMITH of Texas. I am opposed in its current form.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Smith of Texas moves to recommit the bill H.R. 2102 to 
     the Committee on the Judiciary with instructions to report 
     the same back to the House forthwith with the following 
     amendment:
       Page 5, after line 2, insert the following subsection (and 
     redesignate subsequent subsections accordingly):
       (b) Authority To Consider National Security Interest.--For 
     purposes of making a determination under subsection (a)(4), a 
     court may consider the extent of any harm to national 
     security.

  Mr. SMITH of Texas (during the reading). Mr. Speaker, I ask unanimous 
consent that the motion be considered as read and printed in the 
Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Texas is recognized for 5 minutes in support of his motion.
  Mr. SMITH of Texas. Mr. Speaker, H.R. 2102 presumes that a journalist 
is entitled to a reporter's privilege unless the government can show a 
court otherwise. The government can only do this by meeting certain 
threshold requirements set forth in the bill.
  After all those requirements are met, the judge must then apply a 
balancing test. The judge must find that ``the public interest in 
compelling disclosure of the information or document involved outweighs 
the public interest in gathering or disseminating news or 
information.''
  My motion to recommit provides further guidance to the judge as to 
what criteria should be considered in weighing that decision.
  The motion to recommit simply states that the judge may consider the 
extent of any harm to national security. It does not dictate any 
result.
  The manager's amendment partly addresses this issue by creating an 
additional exception to the privilege that excludes from the privilege 
leaks of classified information that harm national security in criminal 
cases. I agree with that idea as far as it goes.
  This motion to recommit, though, goes further. It allows the judge to 
consider this factor in any case, not just a criminal case. It allows a 
judge to consider any leak that harms national security, not just a 
leak in violation of the laws on classified information.
  There are many kinds of information that can harm national security. 
One example is grand jury information. Suppose that the government is 
conducting a grand jury investigation of a suspected terrorist ring. If 
a grand juror were to reveal that to a reporter, it might allow the 
terrorist to escape to strike another day.
  Another example is information covered by various common law 
privileges like the attorney/client privilege. Suppose that an attorney 
knew his client, a former terrorist, was cooperating with authorities 
to avoid prosecution. If he revealed this to the press, it could reveal 
to the terrorist's former compatriots that they needed to change their 
plans.
  Another example is confidential business information that is 
protected by contractual relationships. Employees of a computer company 
might know and reveal without authorization that a certain new chip is 
coming to the market in a matter of months. This might allow a foreign 
enemy to stop their research on that type of chip and devote their 
resources to some other project.
  The problem is that any of these kinds of information could harm 
national security. If they do, a judge ought to be able to consider 
that in deciding what the public interest requires.
  In short, I think we are going in the same direction, but the 
manager's amendment does not go far enough. The motion to recommit 
protects national security against harmful leaks in all cases, not just 
criminal cases.

[[Page 27314]]

When national security is threatened by leaks, we must protect 
ourselves in all cases, not just criminal cases.
  I urge my colleagues to adopt this motion and protect our national 
security.
  Mr. Speaker, I yield back the balance of my time.

                              {time}  1700

  Mr. CONYERS. Mr. Speaker, I rise in support of the motion to 
recommit.
  The SPEAKER pro tempore. Without objection, the gentleman from 
Michigan is recognized for 5 minutes.
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I thank the Speaker and note his surprise, 
and I want everyone to know that this motion is one that we on this 
side can concur with. We think it's thoughtful and appropriate and 
indicates the kind of rapprochement that we are trying to reach on any 
other matters of difference that might be outstanding.
  Allowing a court to take into account national security when 
considering the balancing test and allowing the court to retain full 
discretion on whether to consider this information, and it may consider 
this along with any other information it deems relevant, means that the 
ranking member's continued commitment to work on this issue is going on 
even now, and I thank him for his constructive efforts.
  Mr. Speaker, I yield to the author of the manager's amendment, Mr. 
Boucher of Virginia.
  Mr. BOUCHER. Mr. Speaker, I thank the gentleman from Michigan for 
yielding to me, and I concur in his statement that this motion to 
recommit is acceptable on our side, and in accepting this motion to 
recommit, we are clearly acting in furtherance of the bipartisan 
rapport that underlays the construction of the Free Flow of Information 
Act and its consideration here in the House today.
  The motion to recommit provides that in performing the balancing test 
under the bill, which weighs whether the public interest in disclosure 
outweighs the public interest in news gathering and dissemination, the 
court may consider the extent of any harm to national security.
  The extent of any harm to national security is clearly a relevant 
consideration when determining key questions relating to what is or is 
not in the public interest, and for that reason, Mr. Speaker, I'm 
pleased to join with the gentleman from Michigan in urging acceptance 
of the motion to recommit.
  The SPEAKER pro tempore. Without objection, the previous question is 
ordered on the motion to recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. SMITH of Texas. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair 
will reduce to 5 minutes the minimum time for any electronic vote on 
the question of passage.
  The vote was taken by electronic device, and there were--yeas 388, 
nays 33, not voting 10, as follows:

                             [Roll No. 972]

                               YEAS--388

     Ackerman
     Aderholt
     Akin
     Alexander
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Bachmann
     Bachus
     Baird
     Baker
     Baldwin
     Barrett (SC)
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Biggert
     Bilbray
     Bilirakis
     Bishop (GA)
     Bishop (NY)
     Bishop (UT)
     Blackburn
     Blumenauer
     Blunt
     Boehner
     Bonner
     Bono
     Boozman
     Boren
     Boswell
     Boucher
     Boustany
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Brady (TX)
     Braley (IA)
     Broun (GA)
     Brown (SC)
     Brown, Corrine
     Brown-Waite, Ginny
     Buchanan
     Burgess
     Burton (IN)
     Butterfield
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carter
     Castle
     Chabot
     Chandler
     Cleaver
     Coble
     Cohen
     Cole (OK)
     Conaway
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Cramer
     Crenshaw
     Crowley
     Cuellar
     Culberson
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (KY)
     Davis, David
     Davis, Lincoln
     Davis, Tom
     Deal (GA)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Dicks
     Doggett
     Donnelly
     Doolittle
     Doyle
     Drake
     Dreier
     Duncan
     Edwards
     Ehlers
     Ellison
     Ellsworth
     Emanuel
     Emerson
     Engel
     English (PA)
     Eshoo
     Etheridge
     Everett
     Fallin
     Farr
     Fattah
     Feeney
     Ferguson
     Flake
     Forbes
     Fortenberry
     Fossella
     Foxx
     Frank (MA)
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Giffords
     Gilchrest
     Gillibrand
     Gingrey
     Gohmert
     Gonzalez
     Goode
     Goodlatte
     Gordon
     Granger
     Graves
     Green, Al
     Green, Gene
     Hall (NY)
     Hall (TX)
     Hare
     Harman
     Hastert
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Herseth Sandlin
     Higgins
     Hill
     Hobson
     Hodes
     Hoekstra
     Holden
     Honda
     Hooley
     Hoyer
     Hulshof
     Hunter
     Inglis (SC)
     Inslee
     Israel
     Issa
     Jackson (IL)
     Jefferson
     Johnson (GA)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Jones (OH)
     Jordan
     Kagen
     Kanjorski
     Kaptur
     Keller
     Kennedy
     Kildee
     Kilpatrick
     Kind
     King (IA)
     King (NY)
     Kingston
     Kirk
     Klein (FL)
     Kline (MN)
     Knollenberg
     Kuhl (NY)
     LaHood
     Lamborn
     Lampson
     Langevin
     Lantos
     Larson (CT)
     Latham
     LaTourette
     Levin
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Loebsack
     Lofgren, Zoe
     Lowey
     Lucas
     Lungren, Daniel E.
     Lynch
     Mack
     Mahoney (FL)
     Maloney (NY)
     Manzullo
     Marchant
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (CA)
     McCarthy (NY)
     McCaul (TX)
     McCollum (MN)
     McCotter
     McCrery
     McDermott
     McGovern
     McHenry
     McHugh
     McIntyre
     McKeon
     McMorris Rodgers
     McNerney
     McNulty
     Meek (FL)
     Melancon
     Mica
     Michaud
     Miller (FL)
     Miller (MI)
     Miller (NC)
     Miller, Gary
     Mitchell
     Mollohan
     Moore (KS)
     Moran (KS)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murphy, Tim
     Murtha
     Musgrave
     Myrick
     Nadler
     Neal (MA)
     Neugebauer
     Nunes
     Oberstar
     Obey
     Ortiz
     Pallone
     Pascrell
     Pastor
     Pearce
     Pence
     Perlmutter
     Peterson (MN)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pomeroy
     Porter
     Price (GA)
     Price (NC)
     Pryce (OH)
     Putnam
     Radanovich
     Rahall
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reyes
     Reynolds
     Richardson
     Rodriguez
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Ross
     Rothman
     Roybal-Allard
     Royce
     Ruppersberger
     Rush
     Ryan (OH)
     Ryan (WI)
     Salazar
     Sali
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Saxton
     Schiff
     Schmidt
     Schwartz
     Scott (GA)
     Scott (VA)
     Sensenbrenner
     Serrano
     Sessions
     Sestak
     Shadegg
     Shays
     Shea-Porter
     Sherman
     Shimkus
     Shuler
     Shuster
     Simpson
     Sires
     Skelton
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Snyder
     Solis
     Souder
     Space
     Spratt
     Stearns
     Stupak
     Sullivan
     Sutton
     Tanner
     Tauscher
     Terry
     Thompson (CA)
     Thompson (MS)
     Thornberry
     Tiahrt
     Tiberi
     Tierney
     Towns
     Turner
     Udall (CO)
     Udall (NM)
     Upton
     Van Hollen
     Visclosky
     Walberg
     Walden (OR)
     Walsh (NY)
     Walz (MN)
     Wamp
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Weldon (FL)
     Weller
     Westmoreland
     Wexler
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Wu
     Wynn
     Yarmuth
     Young (AK)
     Young (FL)

                                NAYS--33

     Abercrombie
     Castor
     Clarke
     Clay
     Davis (IL)
     Dingell
     Filner
     Grijalva
     Gutierrez
     Hastings (FL)
     Hinchey
     Hinojosa
     Hirono
     Holt
     Jackson-Lee (TX)
     Kucinich
     Larsen (WA)
     Lee
     Lewis (GA)
     Meeks (NY)
     Miller, George
     Moore (WI)
     Napolitano
     Olver
     Paul
     Payne
     Rangel
     Schakowsky
     Slaughter
     Stark
     Velazquez
     Wasserman Schultz
     Waters

                             NOT VOTING--10

     Carson
     Clyburn
     Cubin
     Jindal
     Johnson, E. B.
     Peterson (PA)
     Tancredo
     Taylor
     Wilson (OH)
     Woolsey


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (during the vote). Members are advised that 2 
minutes remain in this vote.

                              {time}  1727

  Ms. MOORE of Wisconsin, Messrs. HOLT, DAVIS of Illinois, HINCHEY, 
GUTIERREZ, Ms. VELAZQUEZ, and Mr. MEEKS of New York changed their votes 
from ``yea'' to ``nay.''
  Ms. DeGETTE, Mrs. CAPPS, and Mr. JACKSON of Illinois changed their 
votes from ``nay'' to ``yea.''
  So the motion to recommit was agreed to.
  The result of the vote was announced as above recorded.

[[Page 27315]]


  Mr. CONYERS. Mr. Speaker, pursuant to the instructions of the House 
in the motion to recommit, I report the bill, H.R. 2102, back to the 
House with an amendment.
  The SPEAKER pro tempore. The Clerk will report the amendment.
  The Clerk read as follows:

       Amendment:
       Page 5, after line 2, insert the following subsection (and 
     redesignate subsequent subsections accordingly):
       (b) Authority To Consider National Security Interest.--For 
     purposes of making a determination under subsection (a)(4), a 
     court may consider the extent of any harm to national 
     security.

  The SPEAKER pro tempore. The question is on the amendment.
  The amendment was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 398, 
noes 21, not voting 12, as follows:

                             [Roll No. 973]

                               AYES--398

     Ackerman
     Aderholt
     Alexander
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Bachmann
     Bachus
     Baird
     Baker
     Baldwin
     Barrett (SC)
     Barrow
     Bartlett (MD)
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Biggert
     Bilbray
     Bilirakis
     Bishop (GA)
     Bishop (NY)
     Bishop (UT)
     Blackburn
     Blumenauer
     Blunt
     Boehner
     Bonner
     Bono
     Boozman
     Boren
     Boswell
     Boucher
     Boustany
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Brady (TX)
     Braley (IA)
     Broun (GA)
     Brown, Corrine
     Brown-Waite, Ginny
     Buchanan
     Burgess
     Burton (IN)
     Butterfield
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Castle
     Castor
     Chabot
     Chandler
     Clarke
     Clay
     Cleaver
     Coble
     Cohen
     Cole (OK)
     Conaway
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Cramer
     Crenshaw
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis (KY)
     Davis, David
     Davis, Lincoln
     Davis, Tom
     Deal (GA)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Dicks
     Dingell
     Doggett
     Donnelly
     Doolittle
     Doyle
     Drake
     Dreier
     Duncan
     Edwards
     Ehlers
     Ellison
     Ellsworth
     Emanuel
     Emerson
     Engel
     English (PA)
     Eshoo
     Etheridge
     Everett
     Fallin
     Farr
     Fattah
     Feeney
     Ferguson
     Filner
     Flake
     Forbes
     Fortenberry
     Fossella
     Foxx
     Frank (MA)
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Giffords
     Gilchrest
     Gillibrand
     Gingrey
     Gohmert
     Gonzalez
     Goode
     Goodlatte
     Gordon
     Granger
     Graves
     Green, Al
     Green, Gene
     Grijalva
     Hall (NY)
     Hall (TX)
     Hare
     Harman
     Hastert
     Hastings (FL)
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herseth Sandlin
     Higgins
     Hill
     Hinchey
     Hinojosa
     Hirono
     Hobson
     Hodes
     Hoekstra
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Hulshof
     Hunter
     Inglis (SC)
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (GA)
     Johnson (IL)
     Jones (NC)
     Jones (OH)
     Jordan
     Kagen
     Kanjorski
     Kaptur
     Keller
     Kennedy
     Kildee
     Kilpatrick
     Kind
     Kingston
     Kirk
     Klein (FL)
     Kline (MN)
     Knollenberg
     Kucinich
     Kuhl (NY)
     LaHood
     Lamborn
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Latham
     LaTourette
     Lee
     Levin
     Lewis (CA)
     Lewis (GA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Loebsack
     Lofgren, Zoe
     Lowey
     Lucas
     Lynch
     Mack
     Mahoney (FL)
     Maloney (NY)
     Manzullo
     Marchant
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (CA)
     McCarthy (NY)
     McCaul (TX)
     McCollum (MN)
     McCotter
     McCrery
     McDermott
     McGovern
     McHenry
     McHugh
     McIntyre
     McKeon
     McMorris Rodgers
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Michaud
     Miller (FL)
     Miller (MI)
     Miller (NC)
     Miller, Gary
     Miller, George
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murphy, Tim
     Murtha
     Musgrave
     Myrick
     Nadler
     Napolitano
     Neal (MA)
     Neugebauer
     Nunes
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pearce
     Pence
     Perlmutter
     Peterson (MN)
     Pickering
     Pitts
     Platts
     Poe
     Pomeroy
     Porter
     Price (GA)
     Price (NC)
     Pryce (OH)
     Putnam
     Radanovich
     Rahall
     Ramstad
     Rangel
     Regula
     Rehberg
     Reichert
     Renzi
     Reyes
     Reynolds
     Richardson
     Rodriguez
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Ryan (WI)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Saxton
     Schakowsky
     Schiff
     Schmidt
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sessions
     Sestak
     Shadegg
     Shays
     Shea-Porter
     Shimkus
     Shuler
     Shuster
     Simpson
     Sires
     Skelton
     Slaughter
     Smith (NE)
     Smith (NJ)
     Smith (WA)
     Snyder
     Solis
     Souder
     Space
     Spratt
     Stark
     Stearns
     Stupak
     Sullivan
     Sutton
     Tanner
     Tauscher
     Terry
     Thompson (CA)
     Thompson (MS)
     Tiahrt
     Tiberi
     Tierney
     Towns
     Turner
     Udall (CO)
     Udall (NM)
     Upton
     Van Hollen
     Velazquez
     Visclosky
     Walberg
     Walden (OR)
     Walsh (NY)
     Walz (MN)
     Wamp
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Weller
     Westmoreland
     Wexler
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Wu
     Wynn
     Yarmuth
     Young (AK)
     Young (FL)

                                NOES--21

     Abercrombie
     Akin
     Barton (TX)
     Brown (SC)
     Buyer
     Carter
     Culberson
     Herger
     Issa
     Johnson, Sam
     King (IA)
     King (NY)
     Lungren, Daniel E.
     Mica
     Petri
     Royce
     Sali
     Sensenbrenner
     Smith (TX)
     Thornberry
     Weldon (FL)

                             NOT VOTING--12

     Carson
     Clyburn
     Cubin
     Gutierrez
     Jindal
     Johnson, E. B.
     Peterson (PA)
     Sherman
     Tancredo
     Taylor
     Wilson (OH)
     Woolsey


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (during the vote). Members are advised that 
there is 1 minute remaining on this vote.

                              {time}  1736

  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________