[House Report 111-61]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     111-61

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



 
                  FREE FLOW OF INFORMATION ACT OF 2009

                                _______
                                

 March 30, 2009.--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

                            DISSENTING VIEWS

                        [To accompany H.R. 985]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 985) 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 without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     6
Committee Consideration..........................................     7
Committee Votes..................................................     7
Committee Oversight Findings.....................................     7
New Budget Authority and Tax Expenditures........................     7
Congressional Budget Office Cost Estimate........................     7
Performance Goals and Objectives.................................     9
Constitutional Authority Statement...............................     9
Advisory on Earmarks.............................................     9
Section-by-Section Analysis......................................     9
Dissenting Views.................................................    11

                          Purpose and Summary

    H.R. 985, the ``Free Flow of Information Act of 2009,'' 
ensures that members of the press may engage in effective 
journalism and utilize confidential sources without harming 
themselves or their sources, by providing a qualified privilege 
that prevents a reporter's source material from being revealed 
except under certain 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 careful 
balance with respect to promoting the free dissemination of 
information and ensuring effective law enforcement and the fair 
administration of justice, while containing substantial 
protections for law enforcement and ensuring that information 
needed to protect the national security or other critical 
interests will be accessible when needed.
    H.R. 985 is identical to H.R. 2102 from the 110th Congress, 
in the amended form in which it passed the House of 
Representatives on October 16, 2007, by a recorded vote of 398-
21.

                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 the conduct and actions of 
public officials and instances of government corruption.\3\ 
Thus, it has been recognized that the press should be protected 
from undue government interference when gathering and 
disseminating 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 government power 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 commandeering 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 retribution, 
embarrassment, or harm. Those informants could be deterred by 
the risk of being compulsorily named; 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, as ``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 
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\
---------------------------------------------------------------------------
    \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. 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
---------------------------------------------------------------------------
    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.''\15\ He explained 
that a court could quash a subpoena where ``legitimate First 
Amendment interests require protection.''\16\ In his dissent, 
Justice Stewart went a step further and proposed a specific 
balancing test.\17\ 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.\18\
---------------------------------------------------------------------------
    \15\Id. at 726 (Powell, J., concurring).
    \16\Id.
    \17\Id. at 743 (Stewart, J., dissenting).
    \18\Id.
---------------------------------------------------------------------------
    In the aftermath of Branzburg, there have been recurring 
calls for a Federal shield law or for a reconsideration of that 
decision.\19\ Although nearly one hundred bills was introduced 
in the 6 years after the Branzburg decision,\20\ none of these 
measures was passed, a failure that is partially attributed to 
an inability to reach consensus on the definition of 
``journalist,'' and to the insistence of the press on an 
absolute privilege, not a qualified one.\21\ In 1970 the 
Attorney General promulgated guidelines to govern the issue for 
the Department of Justice.\22\ 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.\23\
---------------------------------------------------------------------------
    \19\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 news-gathering media).
    \20\Id. at 867.
    \21\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).
    \22\See 28 C.F.R. 50.10 (1970).
    \23\Id.
---------------------------------------------------------------------------
    Also since the Branzburg decision, Federal courts have 
continued to develop a common law privilege on a case-by-case 
basis.\24\ 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.\25\ This lack of uniformity among the Federal courts 
has prompted calls from journalists and scholars for Federal 
legislation.
---------------------------------------------------------------------------
    \24\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'').
    \25\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 that between attorney and 
client, or between husband and 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. While 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.\26\ 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 (1) that the information is relevant or material; 
(2) that it is unavailable by other means, or through other 
sources; and (3) that a compelling need exists for the 
information.\27\ The States tend to vary on the last element, 
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.\28\ In Federal courts, 
however, there is no uniform set of standards governing when 
testimony can be sought from reporters.
---------------------------------------------------------------------------
    \26\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.
    \27\Id.
    \28\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. Over 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--Watergate and Iran-
Contra come to mind, among many others. 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.\29\ In the brief, the attorneys general recognized 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.\30\
---------------------------------------------------------------------------
    \29\Brief for the State of Oklahoma, et al. as Amici Curiae 
Supporting Petitioners, Miller v. United States, No. 04-1507 (May 27, 
2005).
    \30\Id.
---------------------------------------------------------------------------
    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, but will not prevent law enforcement or civil 
litigants from obtaining information that is truly needed to 
protect the national security or other significant interests 
and that is not reasonably available from any other source. 
H.R. 985 contains significant provisions carefully crafted 
during the last Congress to ensure a fair and practical balance 
between the public's right to know and the need to protect 
national security and other critical interests--provisions that 
resulted in a consensus measure that passed the House by an 
overwhelming margin of 398-21.

                                Hearings

    The full Committee on the Judiciary held 1 day of hearings 
on a predecessor bill, H.R. 2102, during the 110th Congress, 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 March 25, 2009, the Committee met in open session and 
ordered the bill, H.R. 985, favorably reported without 
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. 985.

                      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. 985, 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, March 27, 2009.
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. 985, the ``Free 
Flow of Information Act of 2009.''
    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,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable Lamar S. Smith.
        Ranking Member
H.R. 985--Free Flow of Information Act of 2009.
    CBO estimates that implementing H.R. 985 would have no 
significant effect on the federal budget. H.R. 985 would exempt 
journalists from being compelled to produce documents or 
provide testimony unless a court finds that one of the 
following exceptions apply:

         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;

         LIn cases where a source's identity could be 
        revealed, the document or testimony sought is necessary 
        to prevent certain actions, including an act of 
        terrorism, among others; and

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

    The bill also would limit the content of subpoenaed 
testimony or documents. Finally, 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 (there were a total of 19 over the 1991-2007 period) 
and that it is unlikely that the bill would substantially 
increase such requests. Thus, CBO assumes that there would be 
very few instances each year when such a subpoena could be 
challenged in court.
    Journalists already challenge some subpoenas under current 
law, and H.R. 985 would clarify the instances when a journalist 
would be compelled to produce information or testify. The bill 
might increase federal attorneys' litigation duties if more 
subpoenas would be challenged than under current law, but given 
the small number of potential cases, 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. 985 would have no significant 
budgetary impact.
    H.R. 985 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 CBO staff contact for this estimate is Leigh Angres. 
This estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    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. 
985 is intended to ensure the free flow of information to the 
public by setting conditions on federally compelled disclosure 
of information from 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:
    Section 1. Short Title--Section 1 sets forth the bill's 
short title as the ``Free Flow of Information Act of 2009.''
    Section 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 a Federal entity may not compel a 
journalist 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 and an opportunity to be heard:

        1)
           LThe party seeking production must have exhausted 
        all reasonable alternative sources of the information.

        2)
           LIf it is 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. If it is a civil 
        investigation, the information must be critical to the 
        successful completion of the case.

        3)
           LIf the information could reveal the identity of a 
        confidential source, disclosure is only allowed when 
        necessary to:

           (A) Lprevent an act of terrorism against the United 
        States or its allies, other significant harm to 
        national security, or to identify the perpetrator of 
        such an act;

           (B) Lprevent imminent death or significant bodily 
        harm;

           (C) Lidentify 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; or

           (D) Lidentify for purposes of criminal prosecution a 
        person who made unauthorized disclosure of properly 
        classified information, where the disclosure caused or 
        will cause significant harm to national security.

        4)
           LIf the three requirements above are met, the party 
        seeking production must also establish by a 
        preponderance of the evidence that the public interest 
        in compelling disclosure outweighs the public interest 
        in gathering or disseminating news or information. 
        Subsection (b) of this section expressly permits the 
        court to consider the extent of any harm to national 
        security in conducting this balancing.

    Subsection (c) states that, where disclosure is ordered, 
the content of any information ordered to be produced should 
not be overbroad, unreasonable, or oppressive, and should, 
where appropriate, be limited to the purpose of verifying 
published information or describing surrounding circumstances 
relevant to the accuracy of the published information. 
Subsection (c) also states that the content should be narrowly 
tailored in subject matter and period of time so as to avoid 
the production of peripheral, nonessential, or speculative 
information.
    Subsection (d) states that nothing in the bill should be 
construed to apply to state-law defamation, slander, or libel 
claims or defenses.
    Section 3. Compelled Disclosure From Communications Service 
Providers--Section 3(a) provides that the protections of 
section 2 apply equally to an attempt by a Federal entity to 
get information from a communication service provider (``CSP'') 
that relates to a business transaction between the CSP and a 
covered person as to an attempt to get the information directly 
from the covered person--for example, if the government 
attempts to obtain a reporter's e-mails from the reporter's 
Internet service provider instead of directly from the 
reporter.
    Subsection (b) requires that a court give the covered 
person notice and opportunity for hearing before ordering a CSP 
to disclose information described in subsection (a). Notice 
must be given no later than the time the subpoena or request is 
issued. Subsection (c) provides that notice may be delayed only 
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.
    Section 4. Definitions--Section 4 defines the following 
terms:

        1)
           L``Communications service provider'' is a person 
        that transmits information of a customer's choosing by 
        electronic means and includes a telecommunications 
        carrier, an information service provider, and an 
        information content provider (as those terms are 
        defined in the Communications Act).

        2)
           L``Covered person'' is a person who, for a 
        substantial portion of the person's livelihood, or for 
        substantial financial gain, is regularly engaged in 
        journalism (including supervisors, employers, parents, 
        subsidiaries, or affiliates of a covered person). A 
        covered person does not include any person who is a 
        foreign power or agent of a foreign power under Section 
        101 of the Foreign Intelligence Surveillance Act; any 
        foreign terrorist organization as designated by the 
        Secretary of State in accordance with section 219 of 
        the Immigration and Nationality Act; any person 
        identified as a financial supporter of a terrorist 
        organization in the Annex to Executive Order 13224, or 
        whose assets are blocked under that order; any person 
        designated as a terrorist under 31 C.F.R. 595.311; or 
        any terrorist organization as defined in Section 
        212(a)(3)(B)(vi)(II) of the Immigration and Nationality 
        Act.

        3)
           L``Document'' means writings, recordings, and 
        photographs (as defined in the Federal Rules of 
        Evidence).

        4)
           L``Federal entity'' is an entity or employee of the 
        judicial or executive branch or an administrative 
        agency with subpoena power.

        5)
           L``Journalism'' is 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.

                            Dissenting Views

    The United States has enjoyed a free press for over 200 
years because it is guaranteed by the First Amendment in the 
Constitution. Our Founders understood that a free press 
protects and perpetuates our democracy.
    There has been no federal media shield law to protect 
journalists' sources because there has been no evidence of a 
need. No more than 17 journalists during the past 25 years have 
been jailed for refusing to testify before a grand jury. They 
were not singled out for punishment. Every American called to 
testify before a grand jury must cooperate or face this 
consequence.
    Nor is there any evidence that potential sources have 
withheld critical information from reporters because of a fear 
of being revealed. Just look at the examples that are regularly 
revealed--from Watergate to the mistreatment of soldiers at 
Walter Reed Medical Center.
    H.R. 985 creates a press ``privilege'' under which courts 
cannot compel reporters, tabloids, or even some professional 
bloggers to provide information needed to fight crime.
    In the 37 years since the Supreme Court ruled that the 
First Amendment does not shield a reporter from testifying in a 
grand jury proceeding, the media have had no problem exposing 
corruption and injustice.
    While confidentiality is vital to the work of a reporter, 
national security is essential to the preservation of a free 
nation.
    Protecting anonymous sources should never be more important 
than protecting the American people or solving crimes that can 
help save lives.
    Unfortunately, this bill raises serious law enforcement and 
national security concerns.
    However well-intentioned, H.R. 985 will compromise the work 
of the Justice Department and other federal agencies charged 
with crime-fighting, intelligence-gathering, and national 
security matters.
    For example, the prospective nature of some of the most 
important exceptions in this bill--to prevent a terrorist 
attack or imminent bodily harm--will not help in investigations 
after the attack has occurred.
    Under the bill, law enforcement officials could have 
acquired relevant information identifying a reporter's source 
on September 10, 2001--to prevent the terrorist attacks--but 
could not have acquired that same information on September 12 
to track down terrorists.
    Similarly, officials could acquire information regarding a 
reporter's source to prevent the molestation of a child, but 
they could not get that same information to bring a sexual 
predator to justice after the assault.
    And in cases involving the identity of a reporter's source, 
look at the range of misconduct that falls outside the ``death 
or imminent bodily harm'' exception: corporate and financial 
crimes, human trafficking, gun and drug trafficking, gang 
activity, and other criminal activity that might not result in 
a direct risk of ``imminent death or significant bodily harm,'' 
even when such harm is a predictable result of the crime.
    This new privilege has no precedent in American legal 
history.
    All H.R. 985 does is create a privilege that allows 
reporters to avoid a civic duty. The bill goes beyond promoting 
a free press; it confers on the press a privileged position. It 
exempts journalists from the same responsibilities that we are 
all held to in the context of an investigation.
    And the media should be more forthcoming about their 
methods in promoting H.R. 985. We hear a lot from the media 
about the evils of lobbying and how Congress is captive to 
special interests.
    But media outlets, in a very self-serving way, are lobbying 
House Members to support H.R. 985 or face the consequences--
irate hometown newspaper editors and local TV and radio 
reporters.
    These media proponents are a lot like the lobbyists the 
media regularly criticize--those who advocate for their special 
interests without disclosing campaign contributions. But there 
is no way to quantify or report the value of a journalist's 
``in-kind'' contribution--a positive editorial if the Member 
supports the bill--or a negative editorial if the Member 
opposes the bill.
    There is an absence of transparency and accountability 
here. It is unseemly, and possibly unethical, to make phone 
calls and write editorials in support of this bill when the 
motive is so clearly one of self-interest.
    This bill is not about protecting the public's right to 
know about corruption or malfeasance. It is about giving a 
reporter a special privilege at the expense of our national 
crime-fighting efforts.
    Also, we have a new President who has said he generally 
supports the legislation. But conceptual support is not an 
unqualified endorsement of the bill's language. We may very 
well benefit from listening to the President and his Attorney 
General about the specific text of H.R. 985.
    As we have seen in recent days, the President sometimes 
modifies his support of legislation he has previously 
encouraged.
    To illustrate, it is very possible that the Justice 
Department may advocate that we change a number of provisions. 
This may include minimizing the restrictions on disclosure of 
source identification, eliminating the public interest 
``balancing test'' when national security is involved, and 
deleting the ``necessity'' standard when the government is 
trying to acquire information to prevent a terrorist attack.
    These and other changes would improve the bill. We hope the 
Administration and the bill supporters are open to working with 
us on further refinements to H.R. 985.
    We sympathize with journalists not wanting to reveal their 
sources. But as Members of Congress, we have a responsibility 
to see that the law enforcement and intelligence officials who 
keep us safe can do their jobs. H.R. 985 creates serious law 
enforcement and national security problems without sufficient 
justification.

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Darrell E. Issa.
                                   Steve King.
                                   Gregg Harper.

                                  
