[House Report 110-370]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-370

======================================================================



 
                  FREE FLOW OF INFORMATION ACT OF 2007

                                _______
                                

October 10, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 2102]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred 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, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill as 
amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     4
Hearings.........................................................     8
Committee Consideration..........................................     8
Committee Votes..................................................     8
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     9
Performance Goals and Objectives.................................    10
Constitutional Authority Statement...............................    10
Advisory on Earmarks.............................................    10
Section-by-Section Analysis......................................    10
Changes in Existing Law Made by the Bill, as Reported............    12
Additional Views.................................................    12

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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.

                          Purpose and Summary

    H.R. 2102, the ``Free Flow of Information Act of 2007,'' 
ensures that members of the press may utilize confidential 
sources without causing harm to themselves or their sources. It 
does this by providing a qualified privilege that prevents a 
reporter's source material from being revealed except under 
certain narrow circumstances, such as where it is necessary to 
prevent an act of terrorism or other significant and specified 
harm to national security or imminent death or significant 
bodily harm. The bill thus strikes a balance with respect to 
promoting the free dissemination of information and ensuring 
effective law enforcement and the fair administration of 
justice.

                Background and Need for the Legislation

                               BACKGROUND

The First Amendment and Freedom of the Press
    The First Amendment of the Constitution states that 
``Congress shall make no law . . . abridging the freedom of 
speech, or of the press.''\1\ Historically, the press has 
played an essential role in disseminating information to the 
public.\2\ In addition to providing general news about crimes 
against the State, the press has been thought to further the 
values of the First Amendment by providing information on 
issues of public concern, including on public officials and 
government corruption.\3\ Thus, it has been recognized that the 
press should be free from most government restrictions on 
dissemination of information if it is to provide newsworthy 
information to the general public.\4\ The Supreme Court has 
recognized this and has struck down laws that have restricted 
the press's ability to broadcast information of public 
concern.\5\ Since confidential sources are thought to be 
particularly important to bringing unrestricted information of 
public interest to light, it has been argued that the First 
Amendment offers protection against the compulsory disclosure 
of these confidential sources by the Federal Government.\6\
---------------------------------------------------------------------------
    \1\U.S. Const. amend. I.
    \2\See Bradley S. Miller, The Big Chill: Third-Party Documents and 
the Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96) 
(discussing the importance of the press in getting useful information 
about government to the people); see also Citizen Pub. Co. v. United 
States, 394 U.S. 131, 139-40 (1969) (explaining that a free press is 
key to a free society as it ensures widespread and diverse dispersal of 
information).
    \3\See New York Times v. Sullivan, 376 U.S. 254, 270 (1964) 
(stating that ``debate on public issues should be uninhibited, robust, 
and wide-open''); see also Mills v. Alabama, 384 U.S. 214, 218 (1966) 
(asserting that ``a major purpose of that Amendment was to protect the 
free discussion of government affairs''); Garrison v. Louisiana, 379 
U.S. 64, 77 (1964) (suggesting that there is ``paramount public 
interest in a free flow of information to the people concerning public 
officials''). See generally David A. Anderson, The Origins of the Press 
Clause, 30 UCLA L. Rev. 455 (1983) (detailing history of Press Clause).
    \4\See Bradley S. Miller, The Big Chill: Third-Party Documents and 
the Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96) 
(arguing that the press must be free of governmental restrictions so it 
can remain the ``investigative arm of the people,'' uncovering 
government corruption and other crimes detrimental to American people); 
see also New York Times v. United States, 403 U.S. 713, 728 (1971) 
(Stewart, J., concurring) (arguing that in certain areas of government, 
the only checks and balances against such government may be 
``enlightened citizenry,'' and an alert and free press is essential to 
bestow knowledge on the public).
    \5\See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 
580 (1980) (overruling limitations on press access to judicial 
proceedings); Sullivan, 376 U.S. at 281 (establishing ``actual malice'' 
standard for defamation claims by public officials).
    \6\Mark Gomsak, Note, The Free Flow of Information Act of 2006: 
Settling the Journalist's Privilege Debate, 45 Brandeis L.J. 597, 601 
(2007).
---------------------------------------------------------------------------
    There are typically two bases in the First Amendment 
supporting the privilege: (1) the need to protect the free flow 
of information and ideas, and (2) the need to keep the 
government from interfering with the press or using it as an 
investigative arm.\7\ With respect to the first point, the 
right to publish is worthless without the right to gather 
information; shield law protection is necessary because some 
reporting is dependent on informants, and some informants are 
unwilling to be named because of fear of embarrassment or harm. 
Those informants could be deterred by the threat of being named 
and, as a result, reporters would neither have access to nor be 
able to publish important information.
---------------------------------------------------------------------------
    \7\Id. at 601.
---------------------------------------------------------------------------
    With respect to the second point, it is often argued by the 
press that the extent of interference with the journalistic 
process is significant: ``subpoenas are inherently, invariably, 
inescapably burdensome.''\8\ Responding to subpoenas requires 
much time and expense, and the subpoenas often seek information 
that is only marginally relevant.\9\ The press further asserts 
that complying with a subpoena may also have an adverse impact 
on a journalist's credibility, as, in addition to losing 
credibility with their sources, testifying for one side may 
make the journalist appear biased.\10\
---------------------------------------------------------------------------
    \8\Id. at 608 (arguing that subpoenas devour time and resources 
better used for other purposes and entangle people in the criminal 
process).
    \9\See id. at 609 (citing Judge Richard Posner's statement that 
subpoenas can lawfully require testimony about activities both 
``intensely private and entirely marginal to the purpose of the 
inquiry'').
    \10\Bradley S. Miller, The Big Chill: Third-Party Documents and the 
Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96) 
(suggesting that the subpoena threat may puncture the cooperative 
atmosphere between reporter and source by redirecting attention to the 
question of the reporter's loyalties); see, e.g., Cohen v. Cowles Media 
Co., 501 U.S. 663, 665 (1991) (concluding that the First Amendment does 
not prohibit a plaintiff from recovering damages for a reporter's 
breach of a promise of confidentiality).
---------------------------------------------------------------------------
The Issue of Journalistic Privilege
    In Branzburg v. Hayes,\11\ the Supreme Court ruled on a 
claim of journalists' privilege for the first time.\12\ In an 
opinion by Justice White, the Court held that a journalist 
could not rely on an absolute First Amendment-based privilege 
to refuse to testify when questioned by a grand jury, unless 
the grand jury investigation was ``instituted or conducted 
other than in good faith.''\13\ The Court reasoned that the 
public's interest in prosecuting crime outweighed its interest 
in journalists' being permitted to preserve their confidential 
relationships. The Court, however, noted that there was ``merit 
in leaving state legislatures free, within First Amendment 
limits, to fashion their own standards'' regarding journalists' 
privilege.\14\ The Court also specifcally invited Congress to 
craft its own Federal shield law: ``Congress has freedom to 
determine whether a statutory newsman's privilege is necessary 
and desirable and to fashion standards and rules as narrow or 
broad as deemed necessary to deal with the evil discerned and, 
equally important, to refashion those rules as experience from 
time to time dictate.''\15\
---------------------------------------------------------------------------
    \11\408 U.S. 665 (1972).
    \12\The first claim by a reporter that the First Amendment 
justified a refusal to provide information came in a case in which a 
columnist reported several allegedly defamatory statements from an 
anonymous CBS source about actress Judy Garland. See Garland v. Torre, 
259 F.2d 545, 547 (2d Cir. 1958). Garland sued CBS; in her deposition, 
the reporter refused to answer questions about the source of the 
statements. Id. The Second Circuit held that the First Amendment did 
not confer a right to refuse to answer questions, at least when the 
questions ``went to the heart of the . . . claim.'' Id. at 548-50.
    \13\408 U.S. 665, at 707.
    \14\Id. at 706.
    \15\Id.
---------------------------------------------------------------------------
    Justice Powell's concurrence in Branzburg stressed the need 
for a test to strike the ``proper balance between freedom of 
the press and the obligation of all citizens to give relevant 
testimony with respect to criminal conduct.''\16\ He explained 
that a court could quash a subpoena where ``legitimate First 
Amendment interests require protection.''\17\ In his dissent, 
Justice Stewart went a step further and proposed a specific 
balancing test.\18\ Under his test, in order to make a 
journalist comply with a subpoena to appear before a grand jury 
and reveal confidential sources and information, the government 
must: (1) show that there is probable cause to believe that the 
reporter has information that is clearly relevant to a specific 
probable violation of law; (2) demonstrate that the information 
sought cannot be obtained by alternative means less destructive 
of First Amendment rights; and (3) establish a compelling and 
overwhelming interest in the information.\19\
---------------------------------------------------------------------------
    \16\Id. at 726 (Powell, J., concurring).
    \17\Id.
    \18\Id. at 743 (Stewart, J., dissenting).
    \19\Id.
---------------------------------------------------------------------------
    In the aftermath of Branzburg, there have been recurring 
calls for a Federal shield law or for a reconsideration of that 
decision.\20\ Although nearly one hundred bills were introduced 
in the 6 years after the Branzburg decision,\21\ none of these 
measures was passed, a failure that is partially attributed to 
an inability to reach consensus on the definition of a 
``journalist'' and to the insistence of the press on an 
absolute privilege, not a qualified one.\22\ In 1970 the 
Attorney General promulgated guidelines to govern the issue for 
the Department of Justice.\23\ These guidelines require the 
Department to: balance First Amendment values with the need for 
the information sought by the subpoena; make a reasonable 
attempt to get the information from alternative sources; 
negotiate with the news media before issuing a subpoena; obtain 
Attorney General approval before issuing a subpoena; and 
specify reasonable grounds for the Department's belief that the 
information sought by the subpoena is essential.\24\
---------------------------------------------------------------------------
    \20\Paul Marcus, The Reporter's Privilege: An Analysis of the 
Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25 
Ariz. L. Rev. 815, 866-67 (1984) (calling for a uniform national 
standard for the national newsgathering media).
    \21\Id. at 867.
    \22\23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal 
Practice and Procedure 5426, at 738-39 (1980) (concluding that the 
press eventually lost interest in seeking a Federal legislative 
solution to the subpoena problem).
    \23\See 28 C.F.R. 50.10 (1970).
    \24\Id.
---------------------------------------------------------------------------
    Also since the Branzburg decision, Federal courts have 
continued to develop a common law privilege on a case-by-case 
basis.\25\ Some Federal courts have recognized a qualified 
journalist's privilege in non-grand jury settings, some have 
extended it to both civil and criminal proceedings, and some 
have even extended the privilege to non-confidential 
sources.\26\ This lack of uniformity among the Federal courts 
has prompted calls from journalists, scholars, and State 
attorneys general for Federal legislation.
---------------------------------------------------------------------------
    \25\See Riley v. City of Chester, 612 F.2d 708, 714 n.6 (3d Cir. 
1979) (quoting a comment by the principal drafter of the Federal Rules 
of Evidence that ``the language of Rule 501 permits the courts to 
develop a privilege for newspaperpeople on a case-by-case basis'').
    \26\Paul Marcus, The Reporter's Privilege: An Analysis of the 
Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25 
Ariz. L. Rev. 815, 864 (1984).
---------------------------------------------------------------------------
The Federal Rules of Evidence
    Federal Rule of Evidence 501 states that except as provided 
by an Act of Congress or in rules prescribed by the Supreme 
Court, Federal privileges should be governed by the principles 
of common law. When courts recognize a privilege, it has been 
for the purpose of protecting information shared in the context 
of a special relationship, such as the attorney-client or 
husband-wife. Privileges are created to promote sharing 
information without the fear that either party will be forced 
to disclose to a third party.
    In 1996, the Supreme Court issued a three-part test for 
when a new privilege may be created: 1) whether the proposed 
privilege serves significant public and private interests; 2) 
whether the recognition of those interests outweighs any burden 
on truth-seeking that might be imposed by the States; and 3) 
whether such a privilege is widely recognized by the States.
State Shield Laws
    Since 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. Whereas 16 of these States 
recognize a reporter's privilege as a result of judicial 
decisions, only 13 States and the District of Columbia accord 
an absolute privilege for a journalist to withhold information, 
regardless of the State's demonstration of need for the 
information.
    The various State statutes range in scope, from broad 
protections that provide an absolute journalistic privilege to 
shield laws that offer a qualified privilege.\27\ The majority 
of State shield laws currently in place offer some form of a 
qualified privilege to reporters that protects 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) that a compelling need exists for such 
information.\28\ The States tend to vary on the last prong, 
with some requiring the compelling party to establish whether 
the need exists as to the party's case, and others whether the 
need serves a broader public policy.\29\ In Federal courts, 
however, there is no uniform set of standards governing when 
testimony can be sought from reporters.
---------------------------------------------------------------------------
    \27\Carey Lening & Henry Cohen, Journalists' Privilege to Withhold 
Information in Judicial and Other Proceedings: State Shield Statutes, 
Congressional Research Service Report for Congress, Mar. 8, 2005.
    \28\Id.
    \29\Id.
---------------------------------------------------------------------------

                        NEED FOR THE LEGISLATION

    This legislation is essential for journalists to be able to 
protect confidential sources. Without this protection, many 
sources of information may be unwilling to come forward with 
critical information. The privilege is necessary to preserve 
the free flow of information.
    Many people view the press as the fourth branch of 
government, serving in the checks and balances system that 
underlies our democracy. Throughout the years, the press has 
uncovered scandals and corruption in the government, and 
criminal behavior, often attributable to an undisclosed source. 
In fact, many stories would not have been published without a 
promise of confidentiality of sources, such as Watergate, the 
Pentagon Papers, and Iran-Contra. More recent news stories 
brought to light based on confidential sources include the 
conditions at the Walter Reed Army Medical Center, the Abu 
Ghraib prison scandal, and the abuse of steroids by baseball 
players.
    A Federal shield law is also needed because of the lack of 
uniform standards--at both the Federal level and State level--
to govern when testimony can be sought from reporters. This 
argument was made by 34 State attorneys general, including the 
District of Columbia, in an amicus brief filed May 27, 
2005.\30\ In the brief, the attorneys general recognize that 49 
States and the District of Columbia had some form of a shield 
law, and state that ``[l]ack of a corresponding Federal 
reporter's privilege undercuts the States' privileges 
recognized in forty-nine States and causes needless 
confusion.'' The attorneys general also suggested that three 
decades after Branzburg, the change in the State law landscape 
and the confusion in the Federal circuits made the 
consideration of a Federal reporter's privilege ripe for 
review.\31\
---------------------------------------------------------------------------
    \30\Brief for the State of Oklahoma, et al. as Amici Curiae 
Supporting Petitioners, Miller v. United States, No. 04-1507 (May 27, 
2005).
    \31\Id.
---------------------------------------------------------------------------
    Finally, because the privilege is not absolute, this law 
will prevent law enforcement officials from using journalists 
and the results of their fact-gathering as a shortcut to a 
proper investigation. With the reporter shield law, law 
enforcement will be forced to pursue other sources of 
information before being able to turn to journalists for their 
notes.

                                Hearings

    The full Committee on the Judiciary held 1 day of hearings 
on H.R. 2102 on June 14, 2007. Testimony was received from 
Rachel Brand, Assistant Attorney General for Legal Policy, U.S. 
Department of Justice; William Safire, columnist, N.Y. Times; 
Lee Levine, partner, Levine, Sullivan Koch and Schultz, LLP; 
Randall Eliason, Professional Lecturer in Law, George 
Washington University Law School and Washington College of Law, 
American University; and Jim Taricani, reporter, WJAR TV, 
Providence, Rhode Island.

                        Committee Consideration

    On August 1, 2007, the full Committee met in open session 
and ordered the bill H.R. 2102 favorably reported, with 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 2102.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2102, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, September 5, 2007.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2102, the Free 
Flow of Information Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Leigh Angres, 
who can be reached at 226-2860.
            Sincerely,
                                           Peter R. Orszag,
                                                  Director.

Enclosure

cc:
        Honorable Lamar S. Smith.
        Ranking Member
H.R. 2102--Free Flow of Information Act of 2007.
    CBO estimates that implementing H.R. 2102 would have no 
significant effect on the Federal budget. H.R. 2102 would 
exempt journalists from being compelled to produce documents, 
provide testimony, and identify confidential informants unless 
a court finds that one of the following exceptions applies:

         LThe party seeking information has exhausted 
        all reasonable alternative sources;

         LIn criminal investigations or prosecutions, 
        there are reasonable grounds to believe a crime has 
        occurred, and the testimony or document sought is 
        critical to the investigation, prosecution, or defense;

         LIn all other matters, the information sought 
        is critical to the completion of the matter;

         LIf the testimony or document sought could 
        reveal or lead to the discovery of the identity of a 
        source of information, the disclosure of such source is 
        necessary to prevent an act of terrorism, prevent 
        imminent death or significant bodily harm, or identify 
        a person that has exposed a trade secret, certain 
        health information, or nonpublic personal information;

         LThe public interest in compelling disclosure 
        of the information or document involved outweighs the 
        public interest in gathering or disseminating news 
        information.

    The bill also would limit the content of subpoenaed 
testimony or documents. Additionally, under the bill, 
communication service providers (i.e., telecommunications 
carriers and Internet service providers) could not be compelled 
to provide testimony or documents relating to a reporter's 
phone, email, and computer use, unless one of the above 
exceptions applies.
    Under current law, requests to subpoena journalists on 
matters related to Federal cases typically originate within the 
Department of Justice (DOJ). Federal prosecutors can request a 
subpoena of a journalist from a court after an internal review 
by DOJ. Information from DOJ indicates that very few subpoena 
requests seeking confidential source information are approved 
each year and that the bill would not substantially change the 
number of such requests. The bill might increase Federal 
attorneys' litigation duties, but CBO estimates that any 
increase in Federal spending would be insignificant. In 
addition, based on information from the Administrative Office 
of the United States Courts, CBO expects that the bill would 
not appreciably increase the courts' workloads. Therefore, CBO 
estimates that implementing H.R. 2102 would have no significant 
budgetary impact.
    H.R. 2102 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The staff contact for this estimate is Leigh Angres, who 
can be reached at 226-2860. The estimate was approved by 
Theresa A. Gullo, Chief, State and Local Government Cost 
Estimates Unit, Budget Analysis Division.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
2102 is intended to ensure 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.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 18 of the 
Constitution and the First Amendment.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 2102 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short Title. Section 1 sets forth the short title 
of the bill as the ``Free Flow of Information Act of 2007.''
    Sec. 2. Compelled Disclosure from Covered Persons. Section 
2 establishes a procedure by which disclosure of confidential 
information from a journalist may be compelled. Subsection (a) 
states that in any matter arising under Federal law, a Federal 
entity may not compel a journalist to testify or provide 
documents related to information obtained or created by the 
journalist, unless four conditions are met by a preponderance 
of the evidence and after notice and an opportunity to be 
heard. First, the party seeking production must have exhausted 
all reasonable alternative sources of the information. Second, 
if the privilege pertains to a criminal investigation or 
prosecution, the party seeking production must have reasonable 
grounds to believe a crime has occurred and the information 
sought is critical to the investigation, prosecution, or 
defense of the case. If it is a civil investigation, the 
information must be critical to the successful completion of 
the case. Third, if the information could reveal the identity 
of a confidential source, disclosure is only allowed if it is 
necessary to: (1) prevent an act of terrorism against the 
United States or its allies or other significant and specified 
harm to national security; (2) prevent imminent death or 
significant bodily harm; or (3) identify a person who has 
disclosed a trade secret actionable under 18 U.S.C. Sec. 1831 
or Sec. 1832; individually identifiable health information as 
defined in section 1171(6) of the Social Security Act; or 
nonpublic personal information as defined in section 509(4) of 
the Gramm-Leach-Bliley Act. Fourth, the party seeking 
production must prove that the public interest in compelling 
disclosure outweighs the public interest in gathering or 
disseminating news or information.
    Subsection (b) states that the content of any information 
that can be compelled should not be overbroad, unreasonable or 
oppressive and, where appropriate, should be limited to the 
purpose of verifying published information or describing 
surrounding circumstances relevant to the accuracy of the 
published information, and be tailored in subject matter and 
period of time so it is not peripheral, nonessential, or 
speculative information.
    Subsection (c) states that this Act may not be construed to 
apply to civil defamation, slander or libel claims or defenses 
under State law, regardless of whether or not the claims or 
defenses are raised in State or Federal court. In providing for 
the application of State privilege law to State-law defamation, 
slander and libel claims or defenses, this section--like the 
Act as a whole--thus incorporates Federal Rule of Evidence 501, 
which provides that ``with respect to an element of a claim or 
defense as to which State law supplies the rule of decision, 
the privilege of a witness, person, government, State, or 
political subdivision thereof shall be determined in accordance 
with State law.''
    Sec. 3. Compelled Disclosure From Communications Service 
Providers. Section 3 applies when the Federal entity attempts 
to get information from a communications service provider 
(``CSP'') that relates to a business transaction between the 
CSP and the covered person. In that case, subsection (a) states 
that section 2 applies in the same manner to these 
transactions. Subsection (a) also clarifies that testimony or 
documents sought from the CSP of a non-covered person is not 
protected. Subsection (b) sets out the procedures for notice 
and hearing. A court may compel testimony or disclosure of 
documents only after the covered person has notice of the 
subpoena (no later than the time the subpoena is issued) and an 
opportunity to be heard before the disclosure is compelled. 
Subsection (c) provides that notice may be delayed if the court 
determines by clear and convincing evidence that not delaying 
it would pose a substantial threat to the integrity of a 
criminal investigation.
    Sec. 4. Definitions. Section 4 defines various terms. It 
defines ``communications service provider'' as a person that 
transmits information of a customer's choosing by electronic 
means. The term includes a telecommunications carrier, an 
information service provider, and an information content 
provider (as defined in Title 47 of the United States Code). 
``Covered person'' is defined as a person who, for financial 
gain or livelihood, is engaged in journalism, including 
supervisors, employers, parents, subsidiaries, or affiliates of 
a covered person. The term does not include any person who is a 
``foreign power'' or ``agent of a foreign power'' as defined in 
section 101 of the Foreign Intelligence Surveillance Act, or 
any person who is a foreign terrorist organization, designated 
by the Secretary of State, in accordance with section 219 of 
the Immigration and Nationality Act. The term ``document'' 
includes writings, recordings, and photographs (as defined in 
the Federal Rules of Evidence). The term ``federal entity'' is 
an entity or employee of the judicial or executive branch or an 
administrative agency with subpoena power. Section 4 defines 
``journalism'' as ``gathering, preparing, collecting, 
photographing, recording, writing, editing, reporting, or 
publishing of news of information that concerns local, 
national, or international events or other matters of public 
interest for dissemination to the public.''

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that H.R. 
2102 makes no changes to existing law.

                            Additional Views

    I want to 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 the legitimate concerns of industry and law 
enforcement authorities.
    The proponents of H.R. 2102 have worked hard over the past 
three years to balance competing policy interests. The result 
is an improved bill.
    For example, the authors narrowed the definition of a 
``covered person'' to include only professional journalists.
    They addressed some of the Department of Justice's concerns 
by denying protection to persons covered by the Foreign 
Intelligence Surveillance Act as well as those affiliated with 
terrorist organizations designated by the Secretary of State.
    The manager's amendment adopted at full Committee markup 
also deletes the ``imminent and actual'' harm language from the 
section of the bill that lists exceptions to source protection. 
The new text would deny protection when disclosure is necessary 
to prevent ``an act of terrorism against the United States or 
other significant specified'' harm to national security.
    In addition, the manager's amendment broadens the trade 
secrecy, health, and non-public personal information exceptions 
by linking them to disclosures that are ``actionable under'' 
specific statutes.
    Further, the manager's amendment specifies that the 
protections afforded transactions between a covered person and 
a communications service provider do not apply to a non-covered 
person.
    And finally, the manager's amendment includes new 
limitations on information content that is compelled: it must 
not be ``overbroad, unreasonable or oppressive and, where 
appropriate,'' be limited to the purpose of verifying published 
information or describing any surrounding circumstances 
relevant to the published information's accuracy.
    But despite efforts to accommodate their concerns, the 
Justice Department still opposes the bill. They believe the 
stakes are too high in a post 9/11 world to support the Free 
Flow of Information Act.
    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.
    They have pointed out that the ``exceptions'' language 
fails to address misconduct that the Department confronts on a 
daily basis.
    To illustrate, the legislation prevents DoJ from obtaining 
the identity of a news source with knowledge of a child 
prostitution ring, an online purveyor of pornography, gang 
violence, or alien smuggling.
    And the new text governing source disclosure exceptions 
only addresses prospective events. The Department may be able 
to acquire information about a source's identity to prevent a 
terrorist attack. But the
    language does not help if an attack has already occurred 
and DoJ is searching for plotters or witnesses with knowledge 
about the event.
    Also, the H.R. 2102 does not address ``imminent attacks'' 
against our allies, soldiers, embassies, and US citizens in 
other countries.
    It protects trade secrets, but not national secrets.
    Despite the changes contained in the reported version of 
H.R. 2102, I am concerned that the Department will be hamstrung 
as it goes about the business of conducting investigations and 
prosecuting criminals.
    But DoJ should do more than complain; they should negotiate 
in good faith and provide the Committee with language that 
addresses their concerns.
    Although a close call, I could not support H.R. 2102 during 
the Committee markup. I simply believe we must err on the side 
of caution and not support legislation that could make it 
harder to apprehend criminals and terrorist or deter their 
activities.
    But DoJ can do a better job of working with the Committee 
to improve the bill between now and floor consideration of H.R. 
2102. Progress was made in the manager's amendment and we 
should continue to improve this bill before we go to the House 
floor. If the legitimate security concerns registered by the 
Department are addressed at that time then I will support H.R. 
2102.

                                   Lamar Smith.

                                 
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