    [Senate Report 113-118]
    [From the U.S. Government Publishing Office]

                                                           Calendar No. 238
    113th Congress                                                   Report
                                     SENATE
     1st Session                                                    113-118

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

                       FREE FLOW OF INFORMATION ACT OF 2013

                                    _______

                    November 6, 2013.--Ordered to be printed

                                    _______

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

                                  R E P O R T

                                 together with

                         ADDITIONAL AND MINORITY VIEWS

                             [To accompany S. 987]

          [Including cost estimate of the Congressional Budget Office]

        The Committee on the Judiciary, to which was referred the
    bill (S. 987), 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 amendment, and recommends that the bill, as
    amended, do pass.

                                    CONTENTS

                                                                       Page
      I. Purpose of the Free Flow of Information Act of 2013..............2
     II. Background and Need for the Free Flow of Information Act of 2013.3
    III. History of the Bill and Committee Consideration.................12
     IV. Section-by-Section Summary of the Bill..........................16
      V. Congressional Budget Office Cost Estimate.......................22
     VI. Regulatory Impact Evaluation....................................24
    VII. Conclusion......................................................24
    VIII.Additional and Minority Views...................................25

     IX. Changes to Existing Law Made by the Bill, as Reported..........144

             I. Purpose of the Free Flow of Information Act of 2013

        Senators Schumer and Graham introduced the Free Flow of
    Information Act, S. 987, to create a qualified privilege for
    journalists to withhold information that they obtain under the
    promise of confidentiality. This bill strikes a balance between
    journalists' need to maintain confidentiality in order to
    preserve the public's right to know about important issues with
    the necessity of effective law enforcement. The bill provides
    standards that would govern when a person or organization that
    is covered by the Act may be compelled to reveal the identity
    of a confidential source or information that was provided under
    a promise of confidentiality. These standards would apply to
    governmental and private entities in both civil and criminal
    investigations and cases.
        Unlike some States that have created an absolute privilege
    against compelling journalists to turn over protected material,
    this bill creates a qualified privilege. Under this bill, a
    journalist who possesses information that was provided under
    the promise of confidentiality might--in certain
    circumstances--be compelled by a court to produce the source of
    the information. Those circumstances would depend on whether
    the litigant's demand for information arises in a civil,
    criminal, or other context, and whether it relates to an
    investigation or case implicating national security or
    classified material.
        In certain situations, the Act's protections categorically
    do not apply, and the journalist will be required to turn over
    protected information. The Act does not apply to information
    obtained as a result of the journalist's eyewitness observation
    of an alleged crime, or as a result of alleged criminal conduct
    by the journalist. The only crime to which this section does
    not apply is when the communication of the material is itself
    the alleged criminal conduct. The Act also does not apply when
    the disclosure of confidential-source information is reasonably
    necessary to stop, prevent, or mitigate a specific case of
    death, kidnapping, substantial bodily injury, certain offenses
    against minors, or incapacitation of critical infrastructure.
        Further, the Act contains specific provisions to ensure
    that law enforcement maintains access to needed national
    security-related information, an issue that is unique to the
    Federal Government and not addressed in any state media shield
    law.
        In cases that involve alleged unauthorized disclosures of
    properly classified information (``leaks''), the Act allows a
    court to compel the disclosure of confidential-source
    information where disclosure would assist in preventing or
    mitigating an act of terrorism or acts that are reasonably
    likely to cause significant and articulable harm to national
    security. However, the potential for a subsequent unlawful
    disclosure of information by the source sought to be identified
    is not sufficient to establish likely significant and
    articulable harm to national security. In cases that do not
    involve a leak of properly classified information, the Act
    allows the court to compel the disclosure of confidential-
    source information in order to identify the perpetrator of an
    act of terrorism or acts that have caused, or are reasonably
    likely to cause, significant and articulable harm to national
    security.

      II. Background and the Need for the Free Flow of Information Act of
                                      2013

        A free press is vital to a healthy democracy, and a
    journalist's ability to effectively gather information is, in
    turn, central to a free press. However, there is no Federal
    statute or consistent body of common law that provides clear
    rules about when a journalist must disclose his or her
    confidential source information. The absence of a uniform
    Federal standard for protecting confidential source information
    has resulted in a confusing collage of Federal court decisions
    on the issue and has discouraged informants and whistleblowers
    from coming forward with important information regarding, for
    example, corporate wrongdoing or Government fraud, abuse, or
    mismanagement. The Free Flow of Information Act is needed to
    clarify the law in this area and to provide clear guidance to
    courts, journalists, and Federal law enforcement regarding when
    the disclosure of confidential source information can be
    compelled.

          A. THE STATES' RECOGNITION OF THE NEED FOR MEDIA SHIELD LAWS

        The universal recognition of the need for a media shield
    law is demonstrated by the fact that 48 States and the District
    of Columbia recognize protections for the press through their
    constitutions, legislation, and in common law.\1\ Specifically,
    39 States plus the District of Columbia have passed a media
    shield statute in some form, and nine States have recognized a
    privilege in their state constitutions or common law. While 10
    States have created an absolute privilege that protects
    journalists in all circumstances, many states' shield laws have
    adopted a balancing test--weighing the interests of law
    enforcement against the public's interest in the free flow of
    information.
    ---------------------------------------------------------------------------
        \1\See generally, 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.
    ---------------------------------------------------------------------------
        The widespread need for state media shield statutes sparked
    commentary as early as 1970, as the seminal case of Branzburg
    v. Hayes, ultimately decided in 1972 and discussed in more
    detail infra, made its way through the Federal courts. In
    Branzburg, the United States Supreme Court held that there is
    no right under the First Amendment to the U.S. Constitution for
    a journalist to withhold confidential information in a grand
    jury proceeding. The Court noted, however, that although the
    Constitution does not require a privilege for journalists in
    the grand jury context, ``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 may dictate.'' Branzburg v. Hayes, 408 U.S. 665,
    706 (1972).
        After the Branzburg decision, the call for state media
    shield laws issued loudly and was heeded by the majority of
    States in the decade that followed.\2\ As one commentator wrote
    at the time, ``[I]t is important to recognize a qualified
    privilege for reporters in both criminal and civil cases. It is
    essential that the First Amendment interests of the press in
    gathering and disseminating information be supported through
    the privilege avenue.''\3\
    ---------------------------------------------------------------------------
        \2\See Paul Marcus, The Reporter's Privilege: An Analysis of the
    Common Law, Branzburg v. Hayes, and Recent Statutory Developments,
    Faculty Publications Paper 569 (1983), available at http://
    scholarship.law.wm.edu/facpubs/569.
        \3\See id. at 4.
    ---------------------------------------------------------------------------
        Today, every State court system except Hawaii\4\ and
    Wyoming is governed by a constitutional, legislative or common
    law protection for journalists. Collectively, these States have
    recognized that the press plays a legally enshrined role in
    maintaining an informed citizenry, and Government intrusion
    upon the media must be balanced against the values inherent in
    the unfettered operation of the press. As the State Supreme
    Court of Florida recognized before that State enacted a
    legislative protection for journalists, ``The First Amendment
    is clearly implicated when Government moves against a member of
    the press because of what she has caused to be published.''\5\
    ---------------------------------------------------------------------------
        \4\The Hawaii legislature passed a media shield law in 2008, but it
    expired in June 2013.
        \5\Morgan v. State, 337 So.2d 951, 956 (Fl. Sup. Ct. 1976)
    (quashing a grand jury subpoena where the investigation involved a
    grand jury leak, not the investigation of a crime itself).
    ---------------------------------------------------------------------------
        Drawing from this lengthy history of carefully calibrated
    state protections for journalists, the Free Flow of Information
    Act similarly adopts a series of balancing tests in order to
    address the needs of law enforcement and civil litigants on one
    hand, and the freedom of the press and the public's right to
    know, on the other.

    B. INCREASE IN FEDERAL SUBPOENAS TO JOURNALISTS AND CONGRESS' RESPONSE
                      IN THE FREE FLOW OF INFORMATION ACT

        This bill responds, in part, to an increase in the
    frequency with which subpoenas are issued to journalists by
    Federal entities. There is clear evidence that the number of
    subpoenas continues to grow, despite a lack of consensus on the
    actual number.
        In a September 26, 2007, views letter to the Judiciary
    Committee, the Department of Justice (``DOJ'') stated: ``Since
    1991, the Department has approved the issuance of subpoenas to
    reporters seeking confidential source material in only 19
    cases.''\6\ However, there is some doubt as to whether this
    number is accurate.\7\ Assuming for the sake of argument that
    this number is accurate, it does not fully capture the
    burgeoning problem of subpoenas to reporters for the following
    reasons: First, it does not take into account subpoenas from
    special prosecutors. For example, there were at least 10
    subpoenas issued in the Valerie Plame CIA leak case that were
    not counted among the 19 subpoenas cited by the Department
    because they were issued by Special Prosecutor Patrick
    Fitzgerald.\8\
    ---------------------------------------------------------------------------
        \6\According to data provided to the Committee by the Department of
    Justice, the Department has issued ``source-related'' subpoenas in 12
    cases between January 2007 and September 2013. The Department defines
    ``source-related'' subpoenas to included subpoenas and court orders
    (issued pursuant to section 2703(d) of the Electronic Communications
    Privacy Act) that seek information that could reveal or disclose the
    identity of a confidential source. According to the Department, the
    Attorney General has authorized the issuance of subpoenas to members of
    the news media seeking information about the identify of a source of
    leaks of law enforcement information, where the news media did not
    maintain that the individual was a confidential source, on two
    occasions since 2007. The Attorney General has also authorized the use
    of a subpoena or 2703(d) court order to identify a person who used, or
    attempted to use, the news media to threaten the health or safety of a
    public official on three occasions since 2007, according to the data
    provide by Department of Justice.
        \7\In 2001, the Bush Administration asserted that between 1991 and
    2001, the Attorney General authorized 17 subpoenas to the media for
    confidential source information in criminal cases. See Letter from
    Daniel J. Bryant, Assistant Attorney General, Department of Justice, to
    the Hon. Charles E. Grassley, United States Senate, Nov. 28, 2001. This
    would suggest that only two more had been issued after 2001, although
    public records reveal that at least 12 reporters were subpoenaed for
    confidential information between 2001 and 2007.
        \8\See, e.g., Susan Schmidt, ``Reporters' Files Subpoenaed,'' The
    Washington Post, A16, September 10, 2004, available at http://
    www.washingtonpost.com/wp-dyn/articles/A9890-2004Sep9.html.
    ---------------------------------------------------------------------------
        Second, the number provided by the Department of Justice in
    2007 does not take into account Federal subpoenas for
    confidential information in civil cases. Federal courts have
    recently started compelling journalists to disclose the
    identities of confidential sources to civil litigants seeking
    monetary damages--a break from a nearly 50-year precedent of
    not requiring journalists to disclose confidential sources in
    civil cases to which they are not parties. Recently,
    journalists have been subpoenaed in high-profile civil cases,
    such as in the Privacy Act lawsuit against the Government
    brought by Steven Hatfill as ``a person of interest'' in the
    2001 anthrax investigations, in which at least a dozen
    subpoenas were issued to reporters, as well as in the Wen Ho
    Lee Privacy Act lawsuit that resulted in six reporters being
    subpoenaed.\9\
    ---------------------------------------------------------------------------
        \9\See Rachel Smolkin, ``Under Fire,'' American Journalism Review,
    February/March 2005, available at http://www.ajr.org/
    article.asp?id=3810.
    ---------------------------------------------------------------------------
        Indeed, according to one published empirical study, a
    survey of newsrooms revealed that in 2006 alone, 34 Federal
    subpoenas were issued for confidential information, with an
    estimated 21 of these specifically seeking information that
    would identify a confidential source. Statistical extrapolation
    of the data in this study suggests that the total number of
    Federal subpoenas in 2006 for confidential information was
    likely 67, and that 41 of those sought information that would
    identify a confidential source.
        The Justice Department's statistics also fail to account
    for the recent increase in Federal subpoenas related to leak
    investigations. Indeed, the need for the Free Flow of
    Information Act has never been more pressing than now.
        In May 2013, the Associated Press (``AP'') learned that the
    Justice Department had secretly subpoenaed AP call records from
    April and May 2012, affecting more than 100 journalists and
    covering more than 20 phone lines, including work, home, and
    cell phones; bureaus in three different cities (New York City;
    Hartford, CT; and Washington, DC); and the AP line at the House
    of Representatives press gallery. Because the AP received no
    notice before the Justice Department obtained its records, it
    could not challenge the subpoena in court. As for why
    negotiations with the AP were not initially pursued, the
    Department stated generally, ``Although the ongoing nature of
    the investigation prevents us from sharing additional details
    about this case, there are a number of reasons--depending on
    the circumstances of a given case--that may lead the Department
    to refrain from negotiating with a media organization before
    seeking a subpoena for telephone toll records. For example,
    through the negotiation process, the potential target (the
    leaker) could become aware of the investigation, its focus, and
    its scope, and seek to destroy evidence, create a false
    narrative as a defense, or otherwise obstruct the
    investigation.''\10\
    ---------------------------------------------------------------------------
        \10\Letter from Principal Deputy Attorney General Peter J. Kadzik
    to Hon. Bob Goodlatte, June 4, 2013.
    ---------------------------------------------------------------------------
        The investigation was related to the unauthorized
    disclosure of classified information in violation of the
    Espionage Act in connection with a May 7, 2012, story by the AP
    about how the CIA thwarted a second attempted underwear bomb
    plot. According to AP President and CEO Gary Pruitt, ``We held
    that story until the government assured us that the national
    security concerns had passed. Indeed, the White House was
    preparing to publicly announce that the bomb plot had been
    foiled.''\11\ However, the Justice Department maintains that
    the publication of the story did grave harm to national
    security and that the Department had only informed the AP that
    concerns over the physical safety of the source had been
    alleviated prior to the publication.
    ---------------------------------------------------------------------------
        \11\Statement from Gary Pruitt, President and CEO of The Associated
    Press, May 14, 2013, available at: http://blog.ap.org/2013/05/13/ap-
    responds-to-intrusive-doj-seizure-of-journalists-phone-records/.
    ---------------------------------------------------------------------------
        Also in May 2013, it was revealed that the Justice
    Department had seized the content of Fox News reporter James
    Rosen's Gmail account in 2010. In obtaining the warrant, the
    Justice Department had convinced a judge that there was
    probable cause to believe that Rosen was an ``an aider and
    abettor and/or co-conspirator'' to a violation of the Espionage
    Act. The Justice Department had also subpoenaed Rosen's phone
    records and State Department security badge access records.
    These efforts were in support of the prosecution of former
    State Department official Stephen Jin-Woo Kim, who was charged
    under the Espionage Act for allegedly sharing with Rosen that
    North Korea had planned to respond to new UN sanctions with
    another nuclear test.
        James Risen, a book author and New York Times investigative
    reporter, was subpoenaed three times in the Espionage Act
    prosecution of former CIA official Jeffrey Sterling, who was
    accused of being the source for a chapter in Risen's book,
    ``State of War: The Secret History of the CIA and the Bush
    Administration,'' about a failed CIA operation against Iran's
    nuclear program. First, a Federal grand jury issued a subpoena
    under the Bush Administration, but the grand jury's term
    expired and Risen was not forced to testify about his source. A
    second grand jury subpoenaed Risen under the Obama
    Administration, but the Federal judge presiding over the case
    granted Risen's motion to quash. Finally, the Federal
    prosecutor issued a trial subpoena. The judge again quashed the
    subpoena, but her ruling was overturned in July 2013 by the
    U.S. Court of Appeals for the Fourth Circuit. Risen's request
    for a re-hearing en banc by the Court of Appeals was denied on
    October 15, 2013.\12\
    ---------------------------------------------------------------------------
        \12\See United States v. Sterling, No. 11-5028, Order, October 15,
    2013.
    ---------------------------------------------------------------------------
        At the very least, regardless of whether the Free Flow of
    Information Act would have affected the final outcome (the
    production of material from the covered journalist or a third
    party) in any of these scenarios, the Act would have provided
    for a predictable balancing test--a test that would be
    administered by an Article III judge.
        In sum, Federal subpoenas for confidential source
    information come from a number of parties, including the
    Justice Department and special prosecutors appointed by the
    Justice Department, as well as civil litigants in Federal
    courts where Federal judges make determinations on motions to
    quash such subpoenas. A Federal shield law is needed in order
    to protect against a return to the late 1960s, when subpoenas
    to reporters had become not only frequent but virtually de
    rigueur.\13\
    ---------------------------------------------------------------------------
        \13\See, e.g., Lucy A. Daglish & Casey Murray, Deja Vu All Over
    Again: How A Generation of Gains in Federal Reporters' Privilege Is
    Being Reversed, 29 Univ. Ark. Little Rock L. Rev. 13 (2006) (explaining
    the history of Federal subpoenas to reporters).
    ---------------------------------------------------------------------------

       C. HOW THE FREE FLOW OF INFORMATION ACT ADDRESSES CURRENT PROBLEMS

        In order to provide predictable guidelines in Federal court
    and curb the use of subpoenas (or other compulsory process) to
    covered journalists, this bill provides for the following clear
    rules.
        In criminal cases, the bill provides that the party seeking
    to compel disclosure must first exhaust all reasonable
    alternative sources of the protected information; that there
    must be reasonable grounds to believe that a crime has
    occurred; that there must be reasonable grounds to believe that
    the information is essential to the investigation, prosecution,
    or defense of a crime or criminal case (from sources other than
    the journalist); that the Attorney General must certify that
    he, or she, has complied with the applicable regulations
    governing compelled disclosure from journalists; and finally,
    that the burden is on the covered journalist to show by clear
    and convincing evidence that forced disclosure of the
    confidential information would be contrary to the public
    interest. This language ensures that the court gives full force
    to the criminal justice system's need for ``every man's
    evidence''\14\ while taking account of the press' need to
    function without undue governmental interference.
    ---------------------------------------------------------------------------
        \14\8 Wigmore, Evidence 2191, 2192, 2285 (McNaughton rev. 1961).
    ---------------------------------------------------------------------------
        In civil cases, the bill provides that disclosure may not
    be compelled unless the party seeking disclosure first exhausts
    all reasonable alternative sources of the protected
    information; that the protected information is essential to the
    resolution of the case; and that the party seeking disclosure
    demonstrates that ``the interest in compelling disclosure
    clearly outweighs the public interest in gathering and
    disseminating the information or news at issue and maintaining
    the free flow of information.'' This language ensures that the
    Act's protections against disclosure in civil litigation are
    significantly stronger than under the Act's analogous
    provisions governing criminal cases, and also stronger than the
    current protections that have been applied by Federal courts on
    an ad hoc basis.
        In cases involving alleged leaks of properly classified
    information, the bill allows the Government to obtain
    confidential source material from a covered journalist when it
    can show by a preponderance of the evidence that the
    information would ``materially assist . . . in preventing or
    mitigating an act of terrorism or other acts that are
    reasonably likely to cause significant and articulable harm to
    national security.'' Additionally, the potential for a
    subsequent unlawful disclosure of information by the source
    sought to be identified is not sufficient to establish likely
    significant and articulable harm to national security. In any
    other case that involves national security, the Government may
    obtain the information if it can show by a preponderance of the
    evidence that the information would ``materially assist in
    preventing, mitigating, or identifying the perpetrator of an
    act of terrorism or other acts that have caused or are
    reasonably likely to cause significant and articulable harm to
    national security.'' If the Government is not able to make
    these showings in a national security case, the court would be
    required to apply the balancing test applicable to ordinary
    criminal cases as set forth in Section 2.
        In these cases, a Federal court shall give appropriate
    deference to a specific factual showing by the Federal
    government--something courts are accustomed to doing in
    analogous contexts, such as Freedom of Information Act
    cases.\15\
    ---------------------------------------------------------------------------
        \15\See, e.g., Center for Int'l Env. Law v. Office of U.S. Trade
    Representative, 718 F.3d 899 (D.C. Cir. 2013). As evidenced by this and
    other cases, courts can and do routinely make decisions about the
    Government's national security interest (as in state secrets cases) and
    classification decisions (as in Freedom of Information Act cases).
    ---------------------------------------------------------------------------
        These balancing tests--coupled with the exceptions to the
    privilege that are also created by the bill--give generous
    berth for the Government to obtain the vital information that
    it needs in order to protect public safety, as well as for
    private litigants and criminal defendants to obtain information
    in appropriate circumstances.\16\ At the same time, these
    provisions prevent journalists from becoming the witnesses of
    choice in civil and criminal cases.
    ---------------------------------------------------------------------------
        \16\Contrary to the assertions made in the ``Additional Views,''
    the Free Flow of Information Act will not interfere with legitimate law
    enforcement or national security investigations. First, the vast
    majority of the hypothetical and factual scenarios posited in the
    ``Additional Views'' did not, and would not, involve protected
    information obtained from covered journalists. Second, the remaining
    scenarios discussed in the Additional Views would likely have been
    capably handled in Section 5 of the Act. Finally, the authors of the
    Additional Views make internally contradictory arguments against the
    Act. It cannot be that the need for the bill is minimal because
    ``subpoenas to journalists are rare,'' and at the same time, argue that
    the enactment of the bill ``would seriously impede important criminal
    investigations and prosecutions.'' In fact, as evidenced by the fact
    that every state except Hawaii and Wyoming has a reporters' privilege
    in place, criminal enforcement has not historically been hampered by
    the presence of such a protection. The authors of the Additional Views
    do not discuss the myriad other tools at the disposal of law
    enforcement other than subpoenas to journalists who rely on
    confidential information.
    ---------------------------------------------------------------------------

      D. THE CHILLING EFFECT OF THE CURRENT STATE OF THE LAW ON THE FREE
                                     PRESS

        Current uncertainty--exacerbated by well-publicized cases
    of reporters being held in contempt of court or turning over
    information that was subject to a promise of confidentiality--
    has risked creating a broad chilling effect. As William Safire,
    conservative columnist for the New York Times has explained,
    ``the essence of newsgathering is this: if you don't have
    sources you trust and who trust you, then you don't have a
    solid story--and the public suffers for it.'' Former Time
    magazine Editor Norman Pearlstine, in testimony before the
    Senate Judiciary Committee, stated that after Time Magazine
    complied with a court order and turned over notes of journalist
    Matt Cooper, Time lost valuable sources ``who insisted that
    they no longer trusted the magazine and that they would no
    longer cooperate on stories.''
        More recently, and in light of the increase in Federal
    subpoenas described above, editors and reporters have noticed a
    renewed chilling effect that compelled disclosure of
    confidential sources has had on newsgathering. According to AP
    Chief Executive and President Gary Pruitt, ``some of our long-
    trusted sources have become nervous and anxious about talking
    to us--even on stories that aren't about national security.''
    Pruitt went on to say that ``[i]n some cases, government
    employees that we once checked in with regularly will no longer
    speak to us by phone and some are reluctant to meet in
    person.''\17\
    ---------------------------------------------------------------------------
        \17\Lindy Royce-Bartlett, CNN, ``Leak probe has chilled sources, AP
    exec says'' (June 19, 2013), http://www.cnn.com/2013/06/19/politics/ap-
    leak-probe/index.html.
    ---------------------------------------------------------------------------
        Historically, the use of subpoenas by the Federal
    Government has ebbed and flowed such that the use of subpoenas,
    even when legitimate, has the taint of politicization. As one
    scholar observed:

              Prior to the late 1960s and early 1970s, there were
            few cases in which either the government or private
            parties subpoenaed reporters. In the late 1960s and
            early 1970s, the government subpoenaed journalists with
            increased regularity, attributed to the rise of ``left
            wing'' groups that were perceived by the government as
            a threat to American society. Since Branzburg [v.
            Hayes], the volume of subpoenas directed at reporters
            has not subsided; rather, it has markedly
            increased.\18\
    ---------------------------------------------------------------------------
        \18\Joel G. Weinberg, ``Supporting the First Amendment: A National
    Reporter's Shield Law,'' 31 Seton Hall L.J. 149, 162 (2006).

        The Free Flow of Information Act would create more
    certainty for journalists, law enforcement, and confidential
    sources so that the free flow of information between
    journalists and their sources--and ultimately the public--is
    protected from unnecessary interference, and legitimate uses of
    compelled disclosure are preserved.
        As stated in a letter submitted by a broad coalition of
    media groups to the Committee in support of S. 987: ``The press
    is the public's watchdog charged with uncovering government and
    corporate abuses. Government surveillance of journalists
    creates a chilling effect in newsrooms and among potential
    sources, depriving the American people of important news and
    public accountability. The only way to limit this government
    overreach is through passage of a law that lays out clear rules
    for when the government can obtain information about
    journalists and their sources.''\19\
    ---------------------------------------------------------------------------
        \19\Letter in Support of S.987 (July 26, 2013), signed by A&E
    Television Networks, LLC; A.H. Belo Corporation; ABC Inc.; Advance
    Publications, Inc.; Allbritton Communications Co.; American Society of
    News Editors; Associated Press Media Editors; Association of
    Alternative Newsmedia; Association of American Publishers, Inc.; Below
    Corp.; California Newspaper Publishers Association; CBS Corporation;
    Center for Public Integrity; CNN; Cox Enterprises, Inc.; Cox Media
    Group; Daily News, LP; Dow Jones & Company, Inc.; E.W. Scripps; First
    Amendment; First Amendment Coalition of Arizona; First Amendment
    Project; Forbes Inc.; Fox News Network LLC; Fox Television Stations,
    Inc.; Fusion; Gannett Co., Inc.; LIN Media; McGraw Hill Financial,
    Inc.; McGraw-Hill Education; Media Law Resource Center; MP--The
    Association of Magazine Media; National Association of Broadcasters;
    National Cable & Television Association; National Geographic Society;
    National Newspapers Association; National Press Club; National Press
    Photographers Association; National Writers Union; NBCUniversal; News
    Corporation; Newspaper Association of America; North Jersey Media Group
    Incl.; NPR; Online News Association; Pennsylvania NewsMedia
    Association; POLITICO LLC; Radio Television Digital News Association;
    Raycom Media, Inc.; Regional Reporters Association; Reporters Committee
    for Freedom of the Press; Reuters; Society of Professional Journalists;
    Software and Information Industry Association; Stephens Media; Student
    Press Law Center; Texas Association of Broadcasters; Texas Press
    Association; The Associated Press; The Authors Guild; The McClatchy
    Company; The New York Times Company; The Newspaper Guild-CWA; The
    Newsweek/Daily Best Company LLC; The Washington Post; Time Inc.;
    Tribune Company; U.S. News & World Report; USA Today.
    ---------------------------------------------------------------------------

                      E. STATUS OF THE CURRENT FEDERAL LAW

        The current confusion regarding the scope of a Federal
    journalists' privilege arose 41 years ago when the Supreme
    Court decided Branzburg v. Hayes, 408 U.S. 665 (1972). In
    Branzburg, the Court held that the press' First Amendment right
    to publish information does not include a right to keep
    information secret from a grand jury that is investigating a
    criminal matter. The Supreme Court also held that the common
    law did not exempt a reporter from every other citizen's duty
    to provide information to a grand jury.
        The Court reasoned that just as newspapers and journalists
    are subject to the same laws and restrictions as other
    citizens, they are likewise subject to the same duty to provide
    information to a court as other citizens. However, Justice
    Powell, who joined the 5-4 majority, wrote a separate
    concurrence in which he explained that the Court's holding was
    not an invitation for the Government to harass journalists. If
    a journalist could show that the grand jury investigation was
    being conducted in bad faith, she could ask the court to quash
    the subpoena. In the most influential part of his concurrence,
    Justice Powell indicated that courts might assess such claims
    on a case-by-case basis by balancing the freedom of the press
    against the obligation to give testimony relevant to criminal
    conduct.
        In the 41 years since Branzburg, the Federal courts have
    split on the question of when the balancing test set forth in
    Justice Powell's concurrence creates a qualified privilege for
    journalists in the Federal system.
        With respect to Federal criminal cases, six circuits--the
    First, Fourth, Fifth, Sixth, Seventh and District of Columbia
    Circuits (the latter in the context of a grand jury subpoena)--
    have applied Branzburg so as not to allow journalists to invoke
    the First Amendment to withhold information absent governmental
    bad faith.\20\ Four other circuits--the Second, Third, Ninth,
    and Eleventh Circuits--recognize a qualified privilege, which
    requires courts to balance the freedom of the press against the
    obligation to provide testimony on a case-by-case basis.\21\
    ---------------------------------------------------------------------------
        \20\In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004)
    (finding no privilege for documents prepared without the intent of
    public dissemination); McKevitt v. Pallasch, 339 F.3d 530, 532-33 (7th
    Cir. 2003) (finding no Federal common law reporter's privilege); United
    States v. Smith, 135 F.3d 963, 968-69 (5th Cir. 1998) (holding that
    reporters do not enjoy a qualified reporter's privilege protecting non-
    confidential work product); In re Shain, 978 F.2d 850, 852-53 (4th Cir.
    1992) (holding that absent evidence of governmental harassment or bad
    faith, reporters have no testimonial privilege different from any other
    citizen); In re Grand Jury Proceedings, 810 F.2d 580, 584-86 (6th Cir.
    1987) (finding no reporter's privilege excusing their testimony before
    a grand jury); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141
    (D.C. Cir. 2006).
        \21\In re Grand Jury Proceedings, 5 F.3d 397, 402-03 (9th Cir.
    1993) (finding a qualified reporter's privilege protecting grand jury
    testimony where the investigation is instituted or conducted in bad
    faith); United States v. Caparole, 806 F.2d 1487, 1504 (11th Cir. 1986)
    (compelling production from reporters only upon proof that the
    information at issue is highly relevant, necessary for proper
    presentation of the case, and unavailable from other sources); United
    States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (holding that
    defendants had not satisfied their burden of showing subpoenaed
    documents were highly material, relevant, necessary to the claim, and
    unavailable from other sources to overcome the reporter's privilege);
    United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)
    (extending a qualified reporter's privilege to resource materials and
    unpublished materials).
    ---------------------------------------------------------------------------
        With respect to Federal civil cases, 9 of the 12 circuits
    apply a balancing test when deciding whether journalists must
    disclose confidential sources.\22\ One circuit affords
    journalists no privilege in any context.\23\ Two other circuits
    have yet to decide whether journalists have any privilege in
    civil cases.
    ---------------------------------------------------------------------------
        \22\Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005) (applying a
    three-part balancing test to determine if information can be compelled
    from a reporter evaluating relevance, necessity to the case, and
    availability); Lee v. Dep't of Justice, 413 F.3d 53, 60-61 (D.C. Cir.
    2005) (finding a Federal reporter's privilege but compelling production
    because the information sought went ``to the heart'' of the case and
    all other sources of the information had been ``exhausted''); Cusumano
    v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998) (employing a
    balancing test weighing the effects of disclosure on First Amendment
    interests and the free flow of information against the interest of the
    party seeking disclosure of the reporter's information); LaRouche v.
    Nat'l Broadcasting Co., Inc., 780 F.2d 1134, 1139 (4th Cir. 1986)
    (adopting a balancing test for determining whether a reporter's
    privilege will protect a confidential source-reporter relationship);
    United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (drawing no
    distinction between civil and criminal cases when applying a balancing
    test to determine reporter's privilege); Miller v. Transamerican Press,
    Inc., 621 F.2d 721, 726 (5th Cir. 1980) (applying a three-part test to
    determine the scope of the privilege not to reveal the identity of a
    confidential source in civil suits addressing relevance, availability,
    and compelling interest in the information); Riley v. City of Chester,
    612 F.2d 708, 716 (3d Cir. 1979) (applying a three-part balancing test
    to determine whether a person seeking disclosure from a journalist has
    overcome the privilege by showing that the information is material,
    relevant and necessary to the party's claims or defenses); Silkwood v.
    Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977) (applying a
    balancing test evaluating relevancy, accessibility, and the
    consequences of granting disclosure against the qualified First
    Amendment privilege); Farr v. Pitchess, 522 F.2d 464, 469 (9th Cir.
    1975) (applying a balancing test to determine reporter's privilege
    weighing First Amendment interests against the interests in
    disclosure).
        \23\McKevitt v. Pallasch, 339 F.3d 530, 532-533 (7th Cir. 2003)
    (finding no Federal reporter's privilege).
    ---------------------------------------------------------------------------

     F. DEPARTMENT OF JUSTICE GUIDELINES AND THE FREE FLOW OF INFORMATION
                                      ACT

        For 43 years, the Department of Justice has had in place
    its own guidelines for determining when the production of
    information may be compelled from a journalist.\24\ These
    Guidelines require, inter alia, approval of the Attorney
    General before such material can be compelled; the exhaustion
    of alternative sources of information; and notice to the
    journalist when the journalist's records are demanded from a
    third party. While the Guidelines do not have the force of law,
    they have informed the Free Flow of Information Act. Contrary
    to the assertions of the authors of the Additional Views,
    insofar as these Guidelines have been less than successful,
    such shortcomings stem not from their being ``amorphous,'' but
    from the lack of checks-and-balances on their application.
    ---------------------------------------------------------------------------
        \24\The Department of Justice first adopted a policy governing
    subpoenas to the news media on August 10, 1970. The policy was
    incorporated into the Code of Federal Regulations (50 C.F.R. 50.10) on
    Oct. 16, 1973, and updated on Nov. 19, 1980.
    ---------------------------------------------------------------------------
        Most notably, the Free Flow of Information Act incorporates
    the recent changes that were made to the Guidelines in the wake
    of the outcry over the investigations that involved the
    Associated Press and Fox News reporter James Rosen.\25\ These
    Guidelines revisions provide, inter alia, for a limit on the
    number of times that the Department can ask a court to delay,
    by 45-day increments, its obligation to notify a member of the
    press that the Department of Justice has sought that person's
    records. The new Guidelines will ensure that only one extension
    can be granted, thus requiring the Department to notify covered
    journalists within 90 days. Additionally, the Department's
    policies regarding the use of legal process to obtain
    information from, or records of, members of the news media will
    be revised to make clear that those principles apply to
    communication records of members of the news media that are
    stored or maintained by third parties. These changes are
    reflected in the Free Flow of Information Act as reported by
    the Committee.
    ---------------------------------------------------------------------------
        \25\Department of Justice Report on Review of News Media Policies
    (July 12, 2013), available at http://www.justice.gov/iso/opa/resources/
    2202013712162851796893.pdf.
    ---------------------------------------------------------------------------
        More generally, this Act will not dramatically affect the
    process that Department of Justice prosecutors must undergo to
    subpoena a journalist. Currently, prosecutors must seek
    Attorney General approval for such subpoenas pursuant to the
    Guidelines, and the Department uses a similar balancing test as
    that provided in the bill, weighing the importance of the press
    with the prosecution's need for information, to determine
    whether to issue a subpoena. This Act removes that decision
    from an internal Department matter to the Federal courts,
    ensuring more objectivity and independence in the decision-
    making process. This Act also removes such decision-making from
    taking place behind closed doors to the open court room,
    allowing for more public scrutiny and accountability. There may
    be times, however, when such decisions have to be made by a
    Federal court in camera or under seal to protect national
    security. This Act does not alter the Department's ability to
    request such protections or a Federal court's ability to make
    such a decision.
        Indeed, Attorney General Eric H. Holder, Jr., wrote a
    letter in support of the Act that renewed his support of the
    bill as ``strik[ing] a careful balance between safeguarding the
    freedom of the press and ensuring our nation's security and the
    safety of the American people.''\26\ The Attorney General
    expressed particular support for the expedited judicial review
    provisions, which ensure that the Department's determinations
    are afforded speedy external review. These provisions cannot be
    enacted through guidelines, but rather ``require legislative
    action,'' and therefore, merit the Department's support for the
    Act.\27\
    ---------------------------------------------------------------------------
        \26\Letter from Attorney General Eric H. Holder, Jr., July 29,
    2013; see also Letter from Attorney General Eric H. Holder and Director
    of National Intelligence Dennis C. Blair, November 5, 2009. (See
    Appendix).
        \27\The authors of the ``Additional Views'' rely exclusively for
    their support on letters written by members of law enforcement and the
    intelligence community before the bill was dramatically changed in
    2009, and garnered the support of law enforcement and the intelligence
    community. In fact, even before 2008, the Act had earned the support of
    law enforcement. See Letter from 41 State Attorneys General, June 23,
    2008 (see Appendix).
    ---------------------------------------------------------------------------

              III. History of the Bill and Committee Consideration

                             A. THE 109TH CONGRESS

        Congress has grappled with the question of whether to
    establish a qualified privilege for journalists through Federal
    legislation for several years. During the 109th Congress, there
    were a number of efforts to craft a journalists' privilege
    bill. On February 9, 2005, Senator Lugar introduced S. 340, the
    Free Flow of Information Act. On July 18, 2005, Senators Lugar,
    Dodd, Jeffords, Lautenberg and Nelson (FL) introduced a revised
    version of the Free Flow of Information Act (S. 1419). Senator
    Dodd introduced another journalists' privilege bill, S. 369,
    but later chose to cosponsor S. 1419. The Free Flow of
    Information Act went through another set of revisions and on
    May 18, 2006, was introduced as S. 2831 by Senators Lugar,
    Specter, Dodd, Schumer and Graham.
        Although three hearings were held on the Free Flow of
    Information Act, the Judiciary Committee did not report the
    bill during the 109th Congress. On July 20, 2005, the Committee
    held a hearing on ``Reporters' Privilege Legislation: Issues
    and Implications.'' The following witnesses appeared at the
    hearing: The Hon. Richard G. Lugar, United States Senator (R-
    IN); The Hon. Christopher J. Dodd, United States Senator (D-
    CT); The Hon. Mike Pence, United States Representative (R-IN);
    Matthew Cooper, White House Correspondent, Time Magazine Inc.;
    Norman Pearlstine, Editor-in-Chief, Time Inc.; William Safire,
    Political Columnist, New York Times Company; Floyd Abrams,
    Partner, Cahill, Gordon & Reindel; Lee Levine, Founding
    Partner, Levine, Sullivan, Koch & Schulz; and Geoffrey R.
    Stone, Professor of Law, University of Chicago Law School.
        On October 1, 2005, the Committee held a hearing entitled,
    ``Reporters' Privilege Legislation: An Additional Investigation
    of Issues.'' The following witnesses appeared at the hearing:
    The Hon. Chuck Rosenberg, United States Attorney for the
    Southern District of Texas; Joseph E. diGenova, Founding
    Partner, diGenova and Toensing; Steven D. Clymer, Professor of
    Law, Cornell Law School; Judith Miller, Investigative Reporter
    and Senior Writer, The New York Times; David Westin, President,
    ABC News; Anne K. Gordon, Managing Editor, The Philadelphia
    Inquirer; and Dale Davenport, Editorial Page Editor, The
    Patriot News.
        On September 20, 2006, the Committee held a hearing
    entitled, ``Reporters' Privilege Legislation: Preserving
    Effective Federal Law Enforcement.'' The following witnesses
    appeared at the hearing: Bruce A. Baird, Partner, Covington &
    Burling; Steven D. Clymer, Professor, Cornell Law School; Paul
    J. McNulty, Deputy Attorney General, United States Department
    of Justice; Theodore B. Olson, Partner, Gibson, Dunn &
    Crutcher; and Victor E. Schwartz, Partner, Shook, Hardy &
    Bacon.

                             B. THE 110TH CONGRESS

        On May 2, 2007, Senator Lugar introduced the Free Flow of
    Information Act of 2007, S. 1267. The bill had four original
    cosponsors: Senators Dodd, Graham, Domenici and Landrieu. It
    was later joined by Senator McCaskill (5/3/2007), Senator
    Lieberman (5/14/2007), Senator Johnson (6/11/2007), Senator
    Salazar (6/22/2007), Senator Bayh (9/17/2007), Senator Leahy
    (9/20/2007) and Senator Specter (9/26/2007). The bill was
    placed on the agenda for the Judiciary Committee executive
    business meeting on September 20, 2007. No further action on S.
    1267 was taken.
        On September 10, 2007, S. 2035, Senator Specter introduced
    the Free Flow of Information Act of 2007, S. 2035. The bill had
    two original cosponsors: Senators Schumer and Lugar. It was
    later joined by Senator Graham (9/25/2007), Senator Dodd (9/26/
    2007) and Senator Leahy (10/17/2007).
        On September 27, 2007, Chairman Leahy placed the bill on
    the agenda for the Judiciary Committee's executive business
    meeting. The Committee subsequently favorably reported the bill
    as amended by a roll call vote of 15-2, with 2 passes. The vote
    record is as follows:
        Tally: 15 Yeas, 2 Nays, 2 Pass
        Yeas (15): Leahy (D-VT), Specter (R-PA), Kennedy (D-MA),
    Hatch (R-UT), Biden (D-DE), Grassley (R-IA), Kohl (D-WI),
    Feinstein (D-CA), Feingold (D-WI), Graham (R-SC), Schumer (D-
    NY), Cornyn (R-TX), Durbin (D-IL), Cardin (D-MD), Whitehouse
    (D-RI)
        Nays (2): Kyl (R-AZ) Sessions (R-AL)
        Pass (2): Brownback (R-KS), Coburn (R-OK)

                             C. THE 111TH CONGRESS

        On February 13, 2009, Senators Specter, Schumer, Lugar and
    Graham again introduced the Free Flow of Information Act, S.
    448. Other Senators joined as co-sponsors: Senator Kirsten E.
    Gillibrand (D-NY) (3/23/2009); Senator Claire McCaskill (3/23/
    2009); Senator Amy Klobuchar (3/30/2009); Senator Patty Murray
    (D-WA) (3/30/2009) ; Senator Kay Hagan (D-NC) (5/18/2009);
    Senator Edward E. Kaufman (11/5/2009); Senator Tom Udall (D-NM)
    (11/18/2009); Senator Patrick J. Leahy (D-VT) (12/14/2009);
    Senator Mary Landrieu (D-LA) (2/4/2010); Senator Johnny Isakson
    (R-GA) (3/4/2010); and Senator Bernard Sanders (I-VT) (3/9/
    2010).
        The bill was first placed on the Judiciary Committee's
    Executive Calendar on April 23, 2009. After negotiations
    between the bill's sponsors and the federal law enforcement,
    intelligence, and defense communities, the bill was modified to
    further protect the Executive Branch's ability to obtain needed
    information in certain delineated situations. The changes
    garnered the support of the Administration. This amended
    version that resulted was introduced by Senators Schumer and
    Specter in Committee and adopted by unanimous consent on
    November 19, 2009 (HEN09B24). The November 19 version
    superseded two Schumer-Specter amendments that were introduced
    and adopted at earlier markups.
        The Committee subsequently favorably reported the bill as
    amended on December 10, 2009, by a roll call vote of 14-5. The
    vote record is as follows:
        Tally: 14 Yeas, 5 Nays
        Yeas (14): Leahy (D-VT), Kohl (D-WI), Hatch (R-UT),
    Feinstein (D-CA), Grassley (R-IA), Feingold (D-WI), Schumer (D-
    NY), Graham (R-SC), Cardin (D-MD), Whitehouse (D-RI), Klobuchar
    (D-MN), Kaufman (D-DE), Specter (D-PA), Franken (D-MN)
        Nays (5): Sessions (R-AL), Durbin (D-IL), Kyl (R-AZ),
    Cornyn (R-TX), Coburn (R-OK)

                             D. THE 113TH CONGRESS

        On May 16, 2013, Senators Schumer and Graham again
    introduced the Free Flow of Information Act, S. 987. Other
    Senators joined as co-sponsors of the bill: Senator Max Baucus
    (D-MT) (5/21/2013); Senator Michael F. Bennet (D-CO) (5/21/
    2013); Senator Barbara Boxer (5/21/2013); Senator Maria
    Cantwell (D-WA) (5/21/2013); Senator Tom Harkin (D-IA) (5/21/
    2013); Senator Amy Klobuchar (D-MN) (5/21/2013); Senator Patty
    Murray (D-WA) (5/21/2013); Senator Jon Tester (D-MT) (5/21/
    2013); Senator Tom Udall (D-NM) (5/21/2013); Senator Johnny
    Isakson (R-GA) (5/22/2013); Senator Tammy Baldwin (D-WI) (6/3/
    2013); Senator Richard Blumenthal (D-CT) (6/3/2013); Senator
    Blunt (R-MO) (6/3/2013); Senator Kirsten E. Gillibrand (D-NY)
    (6/10/2013); Senator Claire McCaskill (D-MO) (7/17/2013);
    Senator Christopher A. Coons (D-DE); Senator Mazie K. Hirono
    (D-HI) (7/25/2013); and Senator Patrick Leahy (D-VT) (9/12/
    2013).
        On July 25, 2013, Chairman Leahy placed the bill on the
    Judiciary Committee's business agenda. On August 1, 2013,
    Senator Schumer offered a substitute amendment to the bill
    (ALB13660) that the Committee adopted by unanimous consent.
        On September 12, 2013, the Committee resumed consideration
    of the bill and Senator Feinstein offered an amendment
    (ALB13737) that would provide a new definition for ``covered
    journalist'' to replace the definition of ``covered person'' in
    the bill. The Committee adopted the amendment by a roll call
    vote. The vote record is as follows:
        Tally: 13 Yeas, 5 Nays
        Yeas (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
    Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
    MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
    (R-IA), Hatch (R-UT), Graham (R-SC)
        Nays (5): Sessions (R-AL), Cornyn (R-TX), Lee (R-UT), Cruz
    (R-TX), Flake (R-AZ)

        Senator Sessions offered an amendment (OLL13447) that would
    establish an exception for leaks of classified information. The
    Committee rejected the amendment by a roll call vote. The vote
    record is as follows:
        Tally: 6 Yeas, 11 Nays, 1 Present
        Yeas (6): Hatch (R-UT), Sessions (R-AL), Cornyn (R-TX), Lee
    (R-UT), Cruz (R-TX), Flake (R-AZ)
        Nays (11): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL),
    Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN), Coons (D-
    DE), Blumenthal (D-CT) Hirono (D-HI), Grassley (R-IA), Graham
    (R-SC)
        Present (1): Feinstein (D-CA)

        Senator Cornyn offered an amendment (ALB13708) that would
    ensure that all persons or entities that are protected under
    the Free Press Clause of the First Amendment are covered by the
    bill's privilege. The Committee rejected the amendment by a
    roll call vote. The vote record is as follows:
        Tally: 4 Yeas, 13 Nays, 1 Pass
        Yeas (4): Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R-
    AZ)
        Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
    Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
    MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
    (R-IA), Hatch (R-UT), Graham (R-SC)
        Pass (1): Feinstein (D-CA)

        Senator Cornyn offered an amendment (ALB13698) that would
    exempt a Federal employee's disclosure of any nonpublic
    personal information of a private citizen from the bill's
    privilege. The Committee rejected the amendment by a roll call
    vote. The vote record is as follows:
        Tally: 7 Yeas, 11 Nays
        Yeas (7): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
    Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R-AZ)
        Nays (11): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
    Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
    MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-
    SC)

        Senator Sessions offered an amendment (ALB13683) to ensure
    the secrecy of grand jury proceedings. The amendment was
    rejected by a roll call vote. The vote record is as follows:
        Tally: 7 Yeas, 11 Nays
        Yeas (7): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
    Cornyn (R-TX), Lee (R-UT), Cruz (R-TX) and Flake (R-AZ)
        Nays (11): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
    Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
    MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-
    SC)

        Senator Cornyn offered an amendment (ALB13701) that would
    exclude violations of Federal law related to material support
    of terrorism from the bill's privilege. The Committee rejected
    the amendment by a roll call vote. The vote record is as
    follows:
        Tally: 7 Yeas, 11 Nays
        Yeas (7): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
    Cornyn (R-TX), Lee (R-UT), Cruz (R-TX) and Flake (R-AZ)
        Nays (11): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
    Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
    MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-
    SC)

        The Committee then voted to report the Free Flow of
    Information Act of 2013, as amended, favorably to the Senate.
    The Committee proceeded by roll call vote as follows:
        Tally: 13 Yeas, 5 Nays
        Yeas (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
    Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
    MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
    (R-IA), Hatch (R-UT), Graham (R-SC)
        Nays (5): Sessions (R-AL), Cornyn (R-TX), Lee (R-UT), Cruz
    (R-TX) and Flake (R-AZ)

                   IV. Section-by-Section Summary of the Bill

    Section 1. Short title

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

    Section 2. Compelled Disclosure from Covered Journalists

        Generally, this section provides covered journalists (see
    Section 11(1)) with a qualified privilege when a Federal
    litigant seeks to compel them to provide confidential source
    information (see Section 11(7)). The qualified privilege
    applies differently in criminal and civil cases.
        In both civil and criminal cases, the court must determine
    that the party seeking disclosure ``has exhausted all
    reasonable alternative sources (other than a covered
    journalist) of the protected information.'' (Section 2(a)(1)).
    The exhaustion requirement does not apply to information
    subpoenaed under the exceptions for criminal conduct (Section
    3); death, kidnapping, bodily harm, certain offenses against
    children and harm to critical infrastructure (Section 4); nor
    to terrorist activity or harm to national security (Section 5).
        In criminal matters, Section 2(a)(2)(A) provides that the
    disclosure of confidential source information can only be
    compelled if: the Federal entity that is seeking to compel
    disclosure has reasonable grounds to believe that a crime has
    occurred, based on information obtained other than from the
    covered journalist; there are reasonable grounds to believe
    that the testimony or document sought is essential to the
    prosecution or the defense,\28\ also based on information
    obtained other than from the covered journalist; the Attorney
    General certifies that the decision to request compelled
    disclosure was made in conjunction with the U.S. Department of
    Justice's Policy With Regard to the Issuance of Subpoenas to
    Members of the News Media, 28 C.F.R. Sec. 50.10 (``the ``DOJ
    Guidelines'');\29\ and the covered journalist has not
    established by clear and convincing evidence that disclosure of
    the information would be contrary to the public interest in
    gathering and disseminating the news at issue and maintaining
    the free flow of information.
    ---------------------------------------------------------------------------
        \28\The defendant's right to present a defense and cross-examine
    evidence that is presented against him or her is enshrined in the
    Constitution, and in a case in which a defendant seeks to compel
    production of protected information, nothing in this Act would prevent
    a court from enforcing the full extent of a defendant's Constitutional
    rights.
        \29\To be amended pursuant to the Justice Department Report on
    Review of News Media Policies (July 12, 2013).
    ---------------------------------------------------------------------------
        In matters other than criminal matters, Section 2(a)(2)(B)
    states that the disclosure of confidential source material can
    only be compelled if: the party seeking to compel disclosure
    has exhausted all reasonable alternative sources; there are
    reasonable grounds to believe that the testimony or document
    sought is essential to the resolution of the matter; and the
    party seeking to compel disclosure has established that the
    interest in disclosing the information clearly outweighs the
    public interest in gathering and disseminating the news, and
    maintaining the free flow of information.
        When a litigant seeks information, he or she should not be
    able to peruse a journalist's files or demand answers to
    questions that are outside of the bounds of the information
    needed for the case at hand. Therefore, the Act places
    limitations on the content of the information, and, to the
    extent possible, requires that the information sought be
    narrowly tailored in purpose, subject matter and period of time
    in order to avoid compelling peripheral, nonessential, or
    speculative information (Section 2(b)). There will be times, of
    course, where such limitation is neither prudent nor
    practicable, especially in cases involving national security
    and impending harms. A Federal judge has the ability to make
    such a determination.
        Finally, Section 2(c) provides that, when the Government
    seeks to obtain the protected information from a third party,
    rather than submitting the request to the journalist directly,
    the legal process standards set forth in 18 U.S.C. Sec. 2703 of
    the Electronic Communications Privacy Act continue to apply.
    Specifically, 2(c)(1) states that the Act does not preempt the
    warrant requirement for Government access to certain
    communications records, including the communications content of
    a ``covered journalist,'' as set forth in Sec. 2703. Section
    2(c)(2) similarly clarifies that the Act does not preempt the
    requirements and procedures set forth in Federal Rule of
    Criminal Procedure 41.

    Section 3. Exception relating to criminal or tortious conduct

        The qualified privilege afforded to covered persons in
    Section 2 categorically does not apply to any information
    obtained as a result of the eyewitness observations, or the
    commission, of alleged criminal or tortious conduct (Section
    3(a)). In these cases, the covered journalist will have to
    provide the information. This exception shall not apply if the
    alleged criminal or tortious conduct is the act of
    communicating the information at issue (Section 3(b)). In that
    case, the standard privilege analysis in Section 2 will apply,
    subject to Sections 4 and 5 if the confidential information
    sought from the covered journalist would prevent death,
    kidnapping, serious bodily injury, an act of terrorism, or harm
    to national security as specified in those sections.\30\
    ---------------------------------------------------------------------------
        \30\Nota bene that the Privacy Protection Act generally prohibits
    the Government in a criminal investigation or prosecution from seizing
    materials from a member of the media (42 U.S.C. 2000aa). However, the
    Government may do so if there is probable cause to believe that the
    member of the media has committed a crime by receiving, possessing, or
    communicating national defense or classified information in violation
    of the Espionage Act. In contrast, the Free Flow of Information Act
    permits a covered journalist to challenge a subpoena or other
    compulsory process seeking information that could implicate the
    confidential sources even if the journalist may have engaged in
    criminal conduct by ``communicating the documents or information at
    issue.'' Thus, the Act is intended to preempt the Privacy Protection
    Act under these circumstances.
    ---------------------------------------------------------------------------

    Section 4. Exception to prevent death, kidnapping, or substantial
            bodily harm

        The qualified privilege in Section 2 shall not apply to any
    protected information that is reasonably necessary to stop,
    prevent, or mitigate a specific case of death, kidnapping,
    substantial bodily harm, conduct that constitutes a criminal
    offense that is a specified offense against a minor (as defined
    by Section 111 of the Adam Walsh Act), or incapacitation or
    destruction of critical infrastructure. The purpose of this
    section is to establish that the privilege does not apply to
    any information a journalist may obtain with regard to serious
    future and imminent harm. Thus, because prevention of serious
    and imminent harm is so fundamental to the public interest, a
    judge need not engage in the usual balancing in such
    circumstances. In these cases, the qualified privilege is
    inapplicable.

    Section 5. Exception to prevent terrorist activity or harm to national
            security

        Generally, this section provides the framework for Federal
    courts to use in cases involving leaks of properly classified
    information, as well as cases involving national security and
    acts of terrorism.
        In a criminal investigation or prosecution of the allegedly
    unlawful disclosure of properly classified information, Section
    2's privilege does not apply if the court finds by a
    preponderance of the evidence that the protected information
    would materially assist the Federal Government in preventing or
    mitigating an act of terrorism or other acts that are
    reasonably likely to cause significant and articulable harm to
    national security. (Section 5(a)(2)(A)). The potential for the
    subsequent unlawful disclosure of information by the source
    sought to be identified shall not, by itself, be sufficient to
    demonstrate such harm. (Section 5(d)).
        In any other criminal investigation or prosecution, Section
    2's privilege does not apply if the court finds by a
    preponderance of the evidence that the protected information
    would materially assist the Federal Government in preventing,
    mitigating, or identifying the perpetrator of an act of
    terrorist or other acts that have caused or are reasonably
    likely to cause significant and articulable harm to national
    security. (Section 5(a)(2)(B)).
        This section also provides that a court must give
    appropriate deference to the Administration's determination of
    what constitutes harm to national security, based on a
    ``specific factual showing . . . by the head of any executive
    branch agency or department.'' (Section 5(b)). As it stands,
    courts generally accord deference to the Administration's
    national security determinations, and this bill is intended to
    preserve that deference when a reviewable specific factual
    showing is made.
        This section also provides that in order to make the
    showing described above, the Government may not rely
    exclusively on the risk that further information may be
    revealed in the future. (Section 5(d)). Rather, additional
    facts and/or information must be submitted as well. This is to
    prevent a court from basing an order to compel testimony based
    only on a speculative assertion about future disclosures or
    leaks.\31\ If the Government is not able to make these showings
    in a national security case, the court would be required to
    apply the standards and balancing tests applicable to ordinary
    criminal cases as set forth in Section 2.
    ---------------------------------------------------------------------------
        \31\Additionally, neither this section of the Act, nor any other
    section, removes or limits a court's power to hold proceedings in
    camera, under seal, ex parte or use other methods provided for under
    the Classified Information Protection Act (CIPA) in order to protect
    vital national security information during these hearings.
    ---------------------------------------------------------------------------
        There is no question that the protection of national
    security is of utmost importance to the United States.
    Therefore, proper safeguards must be in place to allow the
    Government to protect and defend the nation. There is also no
    question that leaks of properly classified information, when
    they are likely to cause harm to the nation, must be
    investigated and prosecuted to the full extent of the law. This
    is why there is a different analytical framework--with
    heightened burdens for journalists--in Section 5, which covers
    national security and classified leak-related cases, than in
    Section 2, which covers run-of-the-mill criminal and civil
    cases. In order to protect the public's ability to understand
    the critical policy choices of the Federal Government and avoid
    a chilling effect on legitimate newsgathering, Section 5 does
    require the Government to make a credible showing that harm to
    national security or an act of terrorism is actually at stake.
    When that showing is made, the information may be obtained; a
    prosecutor should not, however, be able to hide behind an
    overbroad and unreasonable claim of harm. The Act allows the
    Government to obtain needed and important information in every
    case in which an appropriate and specific showing is made.

    Section 6. Compelled disclosure from service providers

        In general, the privilege applies to requests for
    information about a person who is known to be, or reasonably
    likely to be, a covered person under this Act. The intent of
    this section is to prevent a litigant from undercutting the
    Free Flow of Information Act when a covered journalist's
    records are held by a third party. Therefore, the privilege
    applies to any requests to any commercial entity that maintains
    records related to a covered person and any person who
    transmits information of the customer's choosing by electronic
    means. A party or a court generally may not compel disclosure
    of this information unless the covered person has received
    notice of the request and an opportunity to be heard before a
    Federal judge.
        Section 6(a)(2) provides, however, that in the case of
    national security letters that are issued under 18 U.S.C.
    Sec. 2709, the requirements in Section 2 that there are
    reasonable grounds to believe that a crime has occurred and
    that the Attorney General has certified compliance with his or
    her own guidelines do not apply.
        Section 6(c) provides that a judge may delay notice and an
    opportunity to be heard for up to 45 days if the judge
    determines by clear and convincing evidence that such notice
    would pose a clear and substantial threat to the integrity of a
    criminal investigation, would risk grave harm to national
    security, or would present an imminent risk of death or serious
    bodily harm. A judge may extend this period by one additional
    45-day period based on a new and independent determination of
    such risk. Section 6(c)(3) defines ``substantial threat to the
    integrity of a criminal investigation'' as occurring when ``the
    target of the investigation may learn of the investigation and
    destroy evidence if notice is provided.'' It is assumed and
    expected that, logically, this subsection shall apply only to
    non-public investigations because in public investigations the
    target would have likely already heard of the investigation and
    attempted to destroy evidence. Section 6(c)(4) provides that a
    judge should consider whether notice to the journalist pursuant
    to a protective order is sufficient to protect the government's
    interests in lieu of delayed notice to the journalist.
        Section 6(e) clarifies that the Act is not intended to
    preempt the legal process standards in the Electronic
    Communications Privacy Act (pursuant to Section 2(c)); however,
    it is intended to preempt the notice and delayed notice
    provisions of these acts as set forth in 18 U.S.C. Sec. 2703
    and Sec. 2705(a).
        The requirements under Sec. 2703 and Sec. 2705(a), which
    govern when the Government seeks communications records from a
    third-party service provider, include notice provisions that
    vary based upon the records requested and the legal process
    used by the government. By contrast, the default requirement in
    Section 6 of the Act is that, regardless of the type of records
    requested from a covered service provider or the type of legal
    process used, the Government must notify the covered journalist
    account holder that his or her account information is sought
    from the service provider.
        Additionally, Sec. 2703 and Sec. 2705(a) provide that
    notice to a customer may be delayed for a 90-day period with
    additional, unlimited extensions of 90-day increments. The Act,
    however, provides for delayed notice for 45 days plus one
    additional 45-day increment. Section 6(e) of the Act preempts
    the delayed notice provisions of Sec. 2703 and Sec. 2705(a).
        The Act does not preempt 18 U.S.C. Sec. 2705(b), which
    permits the Government to obtain a court order commanding a
    service provider ``not to notify any other person of the
    existence of the warrant, subpoena, or court order'' seeking
    the disclosure of the communications records of the account
    holder when delayed notice is permitted.

    Section 7. Sources and work product produced without promise or
            agreement of confidentiality

        Section 7 provides that the Act does not supersede, dilute,
    or preclude any law or court decision regarding compelled
    disclosure of information identifying a non-confidential source
    (Section 7(1)) or of non-confidential journalism work product.

    Section 8. Procedures for review and appeal

        This section provides that upon a showing of good cause, a
    judge may consider ex parte submissions; in addition, a judge
    may find a covered journalist to be in contempt if the person
    fails to comply with an order compelling disclosure of
    protected information. This section also provides that a judge
    shall make a determination under this Act within 30 days of
    receiving the motion, and appeals shall be interlocutory and
    expedited.

    Section 9. Rule of construction

        This section provides that the Act does not preempt
    defamation claims; modify grand jury secrecy rules or the
    Privacy Act (5 U.S.C. Sec. 552a); create new obligations or
    modify authorities under the Foreign Intelligence Surveillance
    Act of 1978 (50 U.S.C. Sec. 1801 et seq.); or preclude the
    voluntary disclosure of information.

    Section 10. Audit

        This section requires the Inspector General of the
    Department of Justice to conduct a comprehensive audit under
    the Act, covering the period beginning on the date of enactment
    and ending on December 31, 2016. Such audit shall be provided
    to the Committees on the Judiciary and Intelligence in both the
    Senate and the House of Representatives, and shall be provided
    to the Director of National Intelligence for comment.

    Section 11. Definitions

        (1) Covered Journalist is defined in one of three ways:
              First, a covered journalist may be a person who is at
            the time of receiving the subpoena or other legal
            process, or was at the time of receiving the protected
            information an employee, independent contractor, or
            agent of an entity or service that disseminates news or
            information by means of a newspaper, nonfiction book,
            wire service, news agency, news website, mobile
            application or other news or information service, news
            program, magazine or other periodical, in a variety of
            formats; or through television or radio broadcast,
            multichannel video programming, or a variety of
            broadcast methods. This covered journalist must have
            had the primary intent to investigate and gather news
            by enumerated methods, had such intent at the beginning
            of the newsgathering process, and obtained the news in
            order to disseminate it.
              Second, a covered journalist may be a person who at
            the inception of the process of gathering the news or
            information, had the primary intent to investigate and
            gather news and obtained the news in order to
            disseminate it by a means listed in the previous
            definition, and, either had a relationship with an
            entity or service as outlined in subclause (i)(I)(aa)
            for a continuous one-year period within the last 20
            years or a continuous three-month period within the
            last five years; had substantially contributed in
            enumerated ways to a significant number of items within
            the last five years; or was a college journalist.
              Third, a covered journalist may be a person for whom
            a judge ``may exercise discretion [to find] . . . based
            on specific facts contained in the record'' should be
            protected ``in the interest of justice'' and if
            ``necessary to protect lawful and legitimate news-
            gathering activities under the specific circumstances
            of the case.''
              Covered journalist does not under any circumstance
            include a foreign power, foreign terrorist
            organization, or any entity that is defined or
            designated by: the Foreign Terrorist Surveillance Act
            of 1998 (50 U.S.C. Sec. 1801); the Immigration and
            Nationality Act (8 U.S.C. Sec. 1189(a)); a Specially
            Designated Global Terrorist by the Department of
            Treasury under Executive Order 13224 (50 U.S.C.
            Sec. 1701); 31 C.F.R. 595.311; or the Immigration
            Nationality Act (8 U.S.C. Sec. 1182(a)(3)(B)(vi)(II);
            or those who commit or attempt to commit the crimes of
            terrorism or providing material support to terrorism,
            as defined in various parts of Title 18. Aiders and
            abetters of the aforementioned are also excluded from
            coverage. In addition, a ``covered journalist'' does
            not under any circumstance include someone whose
            principal function is to publish primary source
            documents that have been disclosed without
            authorization.\32\ The judiciary discretion under
            paragraph (B) does not include any authority to make an
            exception to the exclusions under subparagraph
            (A)(iii).\33\
    ---------------------------------------------------------------------------
        \32\This carve-out is more than ample to address the issues
    pertaining to Pvc. Bradley Manning in the ``Additional Views.''
        \33\The authors of the ``Additional Views'' criticize the
    definition of ``covered journalist'' for being too broad, but also for
    being too narrow and thereby raising First Amendment concerns. In fact,
    the definition of ``covered journalist'' draws a clear and
    administrable line between those who are actual journalists and those
    who would try to hide behind the cloak of journalism in order to harm
    our country--a scenario which has never occurred. In addition, the bill
    does not purport to supplant the full scope of First Amendment
    protections offered to the press. The First Amendment allows everyone
    to publish, and journalists cannot be licensed by the government.
    However, not everyone can refuse to comply with an otherwise valid
    court order to testify. Other testimonial privileges like the attorney-
    client or the doctor-patient privileges are easy to apply: anyone who
    is a licensed attorney or physician cannot be compelled to testify
    about clients or patients. But because journalists are not licensed,
    the Free Flow of Information Act must include a definition of who
    qualifies to invoke the privilege to protect a confidential source.
    Thus, while every citizen is free to publish pursuant to the First
    Amendment, the Free Flow of Information Act would delineate who may
    resist a court order to testify in federal court and who may not. State
    shield laws also include similar definitions without impeding the right
    of all state residents to publish, and another federal statute--the
    Freedom of Information Act (FOIA)--includes a definition of ``news
    media'' for purposes of determining who may be granted a fee waiver
    under the law without undermining the right to publish.
    ---------------------------------------------------------------------------
        (2) Covered Service Provider means a telecommunications
    carrier or information service, an interactive computer
    service, a remote computing service, an electronic
    communications service, or any commercial entity that maintains
    records related to a covered journalist.
        (3) Document is defined as writings, recordings, and
    photographs as defined by Rule 1001 of Federal Rules of
    Evidence (28 U.S.C. App.)
        (4) Federal Entity is defined as a Federal court,
    legislative branch, or administrative agency of the Federal
    Government with the power to issue or enforce a subpoena or
    other compulsory process.
        (5) Judge of the United States includes judges of the
    courts of appeals, district courts, Court of International
    Trade and any court created by an Act of Congress. The term
    does not include magistrate judges or grand juries.
        (6) Properly classified information means information that
    is classified in accordance with any applicable Executive
    orders, statutes, or regulations.
        (7) Protected Information is defined as information
    identifying a source or any records, contents of communication,
    documents, or information obtained by a covered person engaged
    in journalism under the promise or agreement that such
    information would be confidential.
        (8) Relevant Date means the date on which the protected
    information sought was obtained or created by the person
    asserting protection under this Act.

                  V. Congressional Budget Office Cost Estimate

        The Committee sets forth, with respect to the bill, S. 987,
    the following estimate and comparison prepared by the Director
    of the Congressional Budget Office under section 402 of the
    Congressional Budget Act of 1974:
                                                      October 30, 2013.
    Hon. Patrick J. Leahy,
    Chairman, Committee on the Judiciary,
    U.S. Senate, Washington, DC.
        Dear Mr. Chairman: The Congressional Budget Office has
    prepared the enclosed cost estimate for S. 987, the Free Flow
    of Information Act of 2013.
        If you wish further details on this estimate, we will be
    pleased to provide them. The CBO staff contact is Martin von
    Gnechten.
                Sincerely,
                                                  Douglas W. Elmendorf.
        Enclosure.

    S. 987--Free Flow of Information Act of 2013

        S. 987 would exempt journalists from being compelled to
    disclose protected information (confidential sources or related
    records, communications, or documents) unless a court finds
    that a specified exception applies. Based on information
    provided by the Department of Justice (DOJ), CBO estimates that
    implementing the legislation would cost $2 million over the
    2014-2017 period, subject to the availability of appropriated
    funds. Enacting S. 987 would not affect direct spending or
    revenues; therefore, pay-as-you-go procedures do not apply.
        Under the legislation, journalists could be compelled to
    disclose protected information when at least one of the
    following exceptions applies:
         The party seeking protected information has
    exhausted reasonable alternative sources.
         In criminal investigations or prosecutions, there
    are reasonable grounds to believe a crime has occurred; the
    Attorney General has certified that the decision to request
    compelled disclosure is consistent with federal regulations;
    the sources or records sought are essential to the
    investigation, prosecution, or defense; and the journalist has
    not sufficiently shown that disclosure would be contrary to the
    public interest.
         The protected information sought is essential to
    the resolution of the matter, and the public interest in
    compelling disclosure of the information involved outweighs the
    public interest in gathering or disseminating news information.
         The protected information was obtained during the
    alleged criminal conduct of the reporter.
         The information sought is necessary to prevent
    certain actions, including death and kidnapping, among others.
         The information sought would materially assist the
    government in preventing or mitigating an act of terrorism or
    other act that could harm national security.
        Under the bill, covered service providers (including
    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.
        S. 987 also would require the DOJ Inspector General to
    conduct an audit of the effects of the bill's provisions during
    the period between enactment and December 31, 2016, and to
    submit a report to the Congress by June 30, 2017.
        Under current law, requests to subpoena journalists on
    matters related to federal cases typically originate within
    DOJ. Federal prosecutors can request a subpoena of a journalist
    from a court after an internal review by DOJ. Information from
    the department indicates that very few subpoena requests
    seeking confidential-source information are approved each year
    (there were a total of 12 over the 2007-2013 period) and that
    it is unlikely that the bill would substantially increase the
    number of such requests.
        Journalists may challenge some subpoenas under current law,
    and S. 987 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.
        Based on information provided by DOJ, we expect that the
    department would need to hire about three people to carry out
    the audits required by S. 987. CBO estimates that it would cost
    about $500,000 annually over the 2014-2017 period for DOJ to
    complete the audits and report required by the bill. Such
    spending would be subject to the availability of appropriated
    funds.
        S. 987 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 Martin von
    Gnechten. The estimate was approved by Peter H. Fontaine,
    Assistant Director for Budget Analysis.

                        VI. Regulatory Impact Evaluation

        In compliance with rule XXVI of the Standing Rules of the
    Senate, the Committee finds that no significant regulatory
    impact will result from the enactment of S. 987.

                                VII. Conclusion

        The Free Flow of Information Act establishes a clear,
    uniform Federal standard for protecting confidential source
    information that is long overdue. Enacting this legislation
    will ensure that confidential sources will continue to speak
    freely and openly to the press and ensure the free flow of
    information to the American public.

                              VIII. Minority Views

                                  ----------

                MINORITY VIEWS FROM SENATORS SESSIONS AND CORNYN

                                    OVERVIEW

    Introduction
        S. 987, the ``Free Flow of Information Act of 2013,'' would
    dramatically shift the process by which law enforcement goes
    about compelling disclosure of information from journalists.
    This bill would seriously impede important criminal
    investigations and prosecutions, including those dealing with
    cases of terrorism and harm to the national security.
        Members of the law enforcement and intelligence communities
    have had serious and longstanding concerns with similar
    legislation introduced in previous Congresses. Not only does
    the bill passed by the Judiciary Committee fail to address
    these concerns, but the Senate has not held a hearing on the
    issue of a journalist's privilege since 2006, failing to
    provide a forum in which these concerns could be voiced. Nor
    have members had the opportunity to hear from and pose
    questions to the intelligence community in a classified
    setting. As this bill would impose significant limitations upon
    the ability of federal prosecutors to investigate and prosecute
    serious crimes, including terrorist attacks, harms to national
    security, and leaks of classified information, we strongly
    oppose S. 987.
        Any great nation with worldwide interests must be able to
    conduct secret activities, carry on secure discussions
    internally and with foreign nations. These needs have not
    changed and will never change. In the last few years, we have
    witnessed the proliferation of the most damaging leaks of
    classified information in our country's history. For example,
    the media has reported on the existence of so-called terrorist
    ``kill lists,'' a highly classified network of clandestine CIA
    prisons in Europe for al-Qaeda captives, and a highly
    classified memorandum revealing administration misgivings about
    the prime minister of Iraq--a leak described by one government
    official as among the most damaging in recent memory. The leak
    of a highly classified report that the United States had been
    monitoring a major communications channel used by al-Qaeda
    leader Ayman al Zawahiri and Nasser al Wuhayshi, the head of
    the Yemen-based al-Qaeda in the Arabian Peninsula, recently was
    described by some Obama administration officials as having
    caused ``more immediate damage to American counterterrorism
    efforts than the thousands of classified documents disclosed by
    Edward Snowden, the former National Security Agency
    contractor.''\1\
    ---------------------------------------------------------------------------
        \1\Lindsay Wise and Adam Baron, Leaks alerted al Qaida leaders they
    were being monitored, U.S. officials claim, McClatchyDC, Sept. 30,
    2013.
    ---------------------------------------------------------------------------
        In 2010, Bradley Manning, an intelligence analyst for the
    U.S. Army, committed the largest leak of classified information
    in U.S. history by giving extraordinarily sensitive
    information, including videos of the July 12, 2007 Baghdad
    airstrike and the 2009 Granai airstrike in Afghanistan, and
    hundreds of thousands of U.S. diplomatic cables and army
    reports, to the website ``WikiLeaks.'' Former State Department
    spokesman P.J. Crowley stated that Manning's actions ``put real
    lives and real careers at risk.''\2\
    ---------------------------------------------------------------------------
        \2\Bradley Manning's supporters relieved over verdict (MSNBC
    television broadcast, July 31, 2013), available at http://
    video.msnbc.msn.com/now/52632120#52632120 (last visited Oct. 17, 2013).
    ---------------------------------------------------------------------------
        On June 5, 2013, The Guardian published a top secret court
    order leaked by former NSA and CIA contractor Edward Snowden,
    revealing critical details about U.S. surveillance programs.
    According to current and former intelligence officials,
    suspected terrorists have changed how they communicate and have
    become more difficult to track as a result, leading to a
    significant loss of intelligence. Director of National
    Intelligence (``DNI'') James Clapper said that the leaks did
    ``huge, grave damage'' to U.S. intelligence gathering efforts.
    Attorney General Eric Holder said ``[t]he national security of
    the United States has been damaged as a result of those leaks.
    The safety of the American people who reside in allied nations
    have been put at risk as a result.''\3\ As of the date of this
    printing, the extent of Snowden's crimes is unclear, as new
    leaks of classified information directly attributable to him
    continue to appear in the press.
    ---------------------------------------------------------------------------
        \3\Holder: Leaks damaged U.S. Security, CNN, June 5, 2012,
    available at http://www.cnn.com/2013/06/14/world/europe/nsa-leaks/
    index.html?hpt=hp_t1 (last visited Oct. 17, 2013).
    ---------------------------------------------------------------------------
        Recently, former FBI bomb technician Donald John Sachtleben
    pleaded guilty to providing national defense information to the
    Associated Press about the disruption of a terrorist plot by
    al-Qaeda in the Arabian Peninsula to bring down a civilian
    airliner headed for the United States.\4\ He also disclosed
    that during the investigation of the plot, authorities
    uncovered a bomb that was being examined at an FBI lab in
    Quantico where he sometimes worked. Officials described the
    disclosure, which came in the middle of a sensitive
    intelligence operation, as one of the most serious national
    security leaks in history, and led to the Justice Department's
    decision to subpoena phone records from the Associated Press.
    According to the FBI, Sachtleben was identified by its
    investigators as the source of this unlawful disclosure after
    analysis of the subpoenaed telephone records.
    ---------------------------------------------------------------------------
        \4\Sari Horwitz, Former FBI agent to plead guilty in leak to AP,
    The Washington Post, Sept. 23, 2013.
    ---------------------------------------------------------------------------
        The devastating consequences of such leaks were starkly
    illustrated when the Libyan Prime Minister, Ali Zeidan, was
    kidnapped in retaliation for allowing the United States to
    carry out a special operations raid that captured senior al-
    Qaeda leader, Nazih Abdul-Hamed al Ruqai, known as Abu Anas al-
    Libi.\5\ The Libyan government had denied any prior knowledge
    of the raid, but on October 9, 2013, the New York Times
    reported that ``[a]fter months of lobbying by American
    officials, the Libyans consented `some time ago' . . . to the
    United States operations.''\6\ The article cites ``more than
    half a dozen American diplomatic, military, law enforcement,
    intelligence and other administration officials'' as sources.
    ---------------------------------------------------------------------------
        \5\Marc A. Thiessen, Kidnapped Libyan prime minister pays the price
    for an Obama leak, The Washington Post, Oct. 10, 2013.
        \6\Michael S. Schmidt and Eric Schmitt, U.S. Officials Say Libya
    Approved Commando Raids, The New York Times, Oct. 9, 2013.
    ---------------------------------------------------------------------------
    This legislation is unnecessary
        S. 987 was introduced three days after the Associated Press
    wrote to Attorney General Holder to object to the above-
    mentioned subpoena, which it described as a ``massive and
    unprecedented intrusion'' by the Department of Justice
    (``DOJ''). Facing mounting criticism from the press, the White
    House called for this bill to be introduced. Just days later,
    it was revealed that the Attorney General had approved a
    warrant application that labeled Fox News' James Rosen an
    ``aider and abettor and/or co-conspirator'' under the Espionage
    Act for soliciting from State Department security analyst
    Stephen Jin-Woo Kim the disclosure of classified defense
    information regarding North Korea's response to a U.N. Security
    Council resolution condemning its nuclear and ballistic missile
    tests. Some have argued that, given this sequence of events,
    the administration's motives in calling for this legislation
    were to divert criticism and placate powerful media interests.
    Others have argued that the President's support for this bill
    is a tacit admission that his DOJ is unable to police itself.
    There is no question that the DOJ guidelines that set forth the
    procedures for obtaining information from the media are
    powerfully protective, and indeed, overly prescriptive in many
    cases. In fact, in response to this criticism, the DOJ
    tightened the guidelines even further. If they are faithfully
    adhered to, while ensuring the necessary flexibility to conduct
    timely and efficient investigations, they effectively ensure
    that government does not unlawfully or unfairly intrude on the
    press's right to legitimately report on issues of public
    controversy.
        Regardless, as S. 987's lead co-sponsors have conceded,
    this bill likely would not have changed the outcome of the
    Associated Press or Rosen matters. Indeed, rather than
    promoting the purported ``free flow of information,'' so-called
    ``media shield'' legislation is, in the words of former
    National Security Agency (``NSA'') and Central Intelligence
    Agency (``CIA'') Director General Michael Hayden, ``merely a
    solution in search of a problem.''\7\
    ---------------------------------------------------------------------------
        \7\Michael Hayden, The free flow of secrets, The Washington Times,
    Dec. 10, 2009 (``In my view, and indeed in the view of many in the
    American intelligence community, this seems to be a solution in search
    of a problem.''). See also Testimony of Deputy Attorney Gen. Paul J.
    McNulty, Reporters' Privilege Legislation: Preserving Effective Federal
    Law Enforcement, 109th Cong., 2nd Sess. (Sept. 20, 2006) (written
    statement) (statement of Deputy Attorney Gen. Paul J. McNulty), at 9.
    ---------------------------------------------------------------------------
        The lack of need for such legislation was initially raised
    in the September 27, 2007 DOJ views letter regarding similar
    predecessor legislation introduced in the 110th Congress, which
    states ``the Department believes that this legislation would
    work a dramatic shift in the law with no evidence that such a
    change is warranted.''\8\ The letter points out that ``[s]ince
    1991, the Department has approved the issuance of subpoenas to
    reporters seeking confidential source information in only 19
    cases. The authorizations granted for subpoenas of source
    information have been linked closely to significant criminal
    matters that directly affect the public's safety and
    welfare.''\9\ The letter continues: ``[t]hese numbers
    demonstrate a decrease in the number of cases in which the
    Department has approved the issuance of subpoenas seeking
    confidential source information in recent years: of the 19
    source-related matters since 1991, only four have been approved
    since 2001.''\10\
    ---------------------------------------------------------------------------
        \8\Letter from Brian A. Benczkowski, Principal Deputy Assistant
    Att'y Gen., U.S. Dep't of Justice, Office of Legislative Affairs, to
    the Hon. Patrick Leahy, Chairman, U.S. Senate Comm. on the Judiciary,
    U.S. Senate, at 4 (Sept. 26, 2007) (Appendix I).
        \9\Id. at 3.
        \10\Id. at 4 (emphasis in original).
    ---------------------------------------------------------------------------
        In 2008, then-Attorney General Michael Mukasey and then-DNI
    Michael McConnell submitted a views letter noting that similar
    predecessor legislation was ``unnecessary because all evidence
    indicates that the free flow of information has continued
    unabated in the absence of a Federal reporter's
    privilege.''\11\ The letter further states that the bill is
    ``unnecessary because, in the more than thirty-five years since
    the Supreme Court held in Branzburg v. Hayes, 408 U.S. 665
    (1972), that there is no First Amendment reporter's privilege
    to avoid a grand jury subpoena issued in good faith, there has
    been a dramatic increase in the flow of information available
    to the public on every conceivable topic through an ever-
    growing number of outlets.''\12\
    ---------------------------------------------------------------------------
        \11\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, to the Hon.
    Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch McConnell,
    Minority Leader, U.S. Senate (Apr. 2, 2008), at 1 (Appendix II).
        \12\Id. at 7.
    ---------------------------------------------------------------------------
        Judge Mukasey and Mr. McConnell pointed out that supporters
    of a journalist privilege make ``essentially the same arguments
    the litigants in Branzburg made,'' suggesting that ``without a
    reporter's privilege, journalists' sources will dry up,
    important news will go unreported, and the country will suffer
    as a result.'' Proponents of media shield legislation ``often
    punctuate this cautionary tale about the necessity of a Federal
    reporter's privilege by emphasizing the critical role played by
    confidential sources in informing the public about a long line
    of historic events--from Watergate and the Pentagon Papers to
    Enron and Abu Ghraib.'' As Judge Mukasey and Mr. McConnell
    emphasized, ``[t]here can be no doubt those confidential
    sources came forward even though there was no Federal media
    shield law in place to provide them with the protection that,
    if this bill's supporters are to be believed, is essential to
    ensuring that such stories continue to be reported.''\13\
    ---------------------------------------------------------------------------
        \13\Id. (emphasis in original).
    ---------------------------------------------------------------------------
        An examination of the facts reveals that subpoenas to
    journalists are rare. As indicated above, the DOJ approved 19
    source-related subpoenas from 1992 to 2006.\14\ According to
    the DOJ, since 2006, it has approved only 12 source-related
    subpoenas:
    ---------------------------------------------------------------------------
        \14\Letter from Brian A. Benczkowski, Principal Deputy Assistant
    Att'y Gen., U.S. Dep't of Justice, Office of Legislative Affairs, supra
    note 8, at 3 (emphasis added); see also n.2 (``In only two of those
    nineteen matters was the Government seeking to question a reporter
    under oath to reveal the identity of a confidential source. In one of
    the two matters, the media member was willing to identify his source in
    response to the subpoena. In the other matter, the Department withdrew
    the media subpoenas after it had obtained other evidence concerning the
    source of the information and that source agreed to plead guilty. Of
    the nineteen source-related matters since 1991, only four have been
    approved since 2001. While the nineteen source-related matters
    referenced above do not include any media subpoenas issued in matters
    from which the Attorney General was recused, the only recusal matter in
    which subpoenas were issued involved facts where all four federal
    judges to review the subpoena--the Chief Judge of the District Court
    and the three judge panel of the appeals court--found that the facts of
    the case warranted enforcement of the subpoena under any version of a
    qualified privilege, no matter how stringent. See In re Grand Jury
    Subpoena, Judith Miller, 438 F.3d 1141, 1150 (D.C. Cir. 2006). In that
    same case, it is important to note, the Special Prosecutor adhered to--
    and was found by the Court to have complied with--the Department's
    guidelines as set forth at 28 C.F.R. Sec. 50.10. See In re Special
    Counsel Investigation, 332 F. Supp.2d 26, 32 (D.D.C. 2004) (``Assuming,
    arguendo, that the DOJ Guidelines [for the issuance of subpoenas to the
    news media] did vest a right in the movants in these cases, this court
    holds that the DOJ guidelines are fully satisfied by the facts of this
    case as presented to the court in the ex parte affidavit of Patrick
    Fitzgerald.``)).

    ----------------------------------------------------------------------------------------------------------------
                                                            Number of Cases in Which Source- Related Subpoenas Were
                             Year                                                   Approved
    ----------------------------------------------------------------------------------------------------------------
    2007.................................................                                                         1
    2008.................................................                                                         4
    2009.................................................                                                         2
    2010.................................................                                                         3
    2011.................................................                                                         1
    2012.................................................                                                         0
    2013.................................................                                                         1
    ----------------------------------------------------------------------------------------------------------------

        It should be noted that some supporters of media shield
    confuse matters by lumping together the DOJ's statistics on
    subpoenas seeking source-related information with subpoenas
    that either did not seek confidential source information or
    were issued by non-DOJ attorneys.\15\ If the supporters of such
    legislation are concerned about an increase in subpoenas from
    private litigants, they ought to make that argument--and they
    ought to have data to back it up. But to use subpoenas from
    non-DOJ attorneys as a justification for severely constraining
    the ability of federal prosecutors to seek such subpoenas is a
    non-sequitur, especially when there is simply no evidence that
    the DOJ is approving such subpoenas in anything but a cautious
    manner. For the purposes of a discussion of the present
    legislation, the only relevant data are those data that concern
    federal subpoenas and other compulsory process that seek
    confidential source information--because, quite simply, that is
    the only information for which the current legislation would
    provide a shield.
    ---------------------------------------------------------------------------
        \15\See, e.g., American Society of News Editors, Number of
    subpoenas issued, Nov. 2, 2007, available at http://asne.org/
    blog_home.asp?display=661 ``761 responding news organizations reported
    receiving a total of 3,602 subpoenas seeking information or material
    relating to newsgathering activities in calendar year 2006'') (last
    visited Oct. 17, 2013). For example, a study conducted by Professor
    RonNell Jones of Brigham Young University Law School simply does not
    bear the weight that some media shield supporters claim. See RonNell A.
    Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas
    Received by the News Media, 93 Minn. L. Rev. 585 (2008), available at
    http://ssrn.com/abstract=1125500. As an initial matter, the study
    relies on self-reporting from newspapers and broadcast outlets, and, as
    such, must assume the accuracy of those outlets' characterizations and
    descriptions of the subpoenas they received. Id. at 622. And regardless
    of how thorough and accurate the survey that the author of the study
    conducted, the author still must rely on earlier data in order to
    provide a point of comparison by which a determination can be made as
    to whether the number of subpoenas is going up or down. The survey the
    author uses as this point of comparison is a 2001 survey by the
    Reporters' Committee on the Freedom of the Press, a survey that the
    author herself readily admits ``did not purport to be scientific or
    neutral.'' Id. at 621. And even assuming that the reported results are
    accurate, it is important to note that the author of the study states:
    ``Overall, the data does not reveal an `avalanche' of subpoenas, and it
    may well be that journalists in the country are alarmed about the
    subpoena issue to a greater degree than is warranted by the actual
    numerical increases.'' Id. at 667.
    ---------------------------------------------------------------------------

    Previous concerns go unaddressed

        Similar predecessor legislation was opposed by a host of
    executive branch agencies in the 110th and 111th Congresses.
    Although supporters of S. 987 may argue that, after a change at
    the Presidential level, these agencies are no longer opposed--
    which is not at all clear given that the Committee has yet to
    hear from any of the heads of these agencies, other than
    Attorney General Holder--what is relevant is that the reasons
    for the agencies' past and well-founded opposition have not
    been substantively addressed in the bill passed by the
    Judiciary Committee.
        As noted above, in the fall of 2007, the DOJ issued a
    letter expressing strong opposition to similar predecessor
    legislation ``because it would impose significant limitations
    upon--and in some cases would completely eviscerate--the
    ability of Federal prosecutors to investigate and prosecute
    serious crimes, while creating significant national security
    risks.''\16\
    ---------------------------------------------------------------------------
        \16\See Letter from Brian A. Benczkowski, Principal Deputy
    Assistant Att'y Gen., U.S. Dep't of Justice, Office of Legislative
    Affairs, supra note 8, at 4.
    ---------------------------------------------------------------------------
        The next day, the Office of the DNI also issued a letter
    ``strongly opposing'' media shield legislation.\17\ According
    to the letter, ``press reports on U.S. intelligence activities
    have been a valuable source of intelligence to our
    adversaries.'' Amplifying this point, the DNI letter referred
    to former Russian military intelligence colonel Stanislav
    Lunev, who 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.''\18\
    ---------------------------------------------------------------------------
        \17\Letter from Ronald L. Burgess, Jr., Acting Principal Deputy
    Dir. of Nat'l Intelligence, Office of the Dir. of Nat'l Intelligence,
    to the Hon. John D. Rockefeller, Chairman, and the Hon. Christopher S.
    Bond, Vice Chairman, Senate Select Comm. on Intelligence, U.S. Senate,
    at 1 (Sep. 27, 2007) (Appendix III).
        \18\Id. (quoting Stanislav Lunev with Ira Winkler, Through the Eyes
    of the Enemy: The Autobiography of Stanislav Lunev (Regnery Publishing
    1998)).
    ---------------------------------------------------------------------------
        In April 2008, then-Attorney General Mukasey and then-DNI
    McConnell issued the above-mentioned views letter reiterating
    their strong opposition to similar predecessor legislation.\19\
    In that letter, Judge Mukasey and Mr. McConnell stated that the
    legislation is:
    ---------------------------------------------------------------------------
        \19\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 11,
    at 1.

            both unwise and unnecessary: unwise because the
            statutory privilege created by this legislation would
            work a significant change in existing Federal law with
            potentially dramatic consequences for our ability to
            protect the national security and investigate other
            crimes; and unnecessary because all evidence indicates
            that the free flow of information has continued
            unabated in the absence of a Federal reporter's
            privilege.\20\
    ---------------------------------------------------------------------------
        \20\Id.

        Judge Mukasey and Mr. McConnell emphasized that the similar
    bill ``goes far beyond its stated purpose and could severely
    frustrate the Government's ability to investigate and prosecute
    those who harm national security.''\21\ According to them, the
    most significant deficiencies include:
    ---------------------------------------------------------------------------
        \21\Id.
    ---------------------------------------------------------------------------
         ``The circumstances where the bill would permit
    the Government to obtain testimony, documents, and other
    information from journalists related to national security
    investigations are far too restrictive. In the vast majority of
    leak cases, for example, the extraordinary burden placed on the
    Government could be met, if at all, only by revealing even more
    sensitive and classified information.''\22\
    ---------------------------------------------------------------------------
        \22\Id.
    ---------------------------------------------------------------------------
         ``[T]he purported [national security] exception
    only applies prospectively to prevent acts of terrorism and
    significant harm to national security. It does not apply to
    investigations of acts of terrorism and significant harm to
    national security that have already occurred.''\23\
    ---------------------------------------------------------------------------
        \23\Id.
    ---------------------------------------------------------------------------
         ``The bill cedes to judges the authority to
    determine what does and does not constitute `significant and
    articulable harm to the national security.' It also gives
    courts the authority to override the national security interest
    where the court deems that interest insufficiently compelling--
    even when harm to national security has been established.''\24\
    ---------------------------------------------------------------------------
        \24\Id. at 2.
    ---------------------------------------------------------------------------
         ``One need not even be a professional journalist
    in order to derive protections from this bill. It effectively
    provides a safe haven for foreign spies and terrorists who
    engage in some of the trappings of journalism but are not known
    to be part of designated terrorist organizations or known to be
    agents of a foreign power--no matter how closely linked they
    may be to terrorist or other criminal activity.''\25\
    ---------------------------------------------------------------------------
        \25\Id.
    ---------------------------------------------------------------------------
        In an August 2008 letter, sent after the predecessor
    legislation had been amended in a failed attempt to address
    some of their concerns, Judge Mukasey and Mr. McConnell wrote:

              [W]e still have several serious concerns, especially
            with regard to the bill's effect on our ability to
            protect national security and investigate and prosecute
            the perpetrators of serious crimes.

              * * *
              [T]his bill only encourages and facilitates further
            degradation of the tools used to protect the nation. We
            have been joined by the Secretary of Defense, the
            Secretary of Energy, the Secretary of Homeland
            Security, the Secretary of the Treasury, and every
            senior Intelligence Community leader in expressing the
            belief, based on decades of experience, that, by
            undermining the investigation and deterrence of
            unauthorized leaks of national security information to
            the media, this legislation will gravely damage our
            ability to protect the Nation's security. This amended
            version of the bill does not resolve those concerns, or
            other serious concerns raised in our previous letters.
            As a result, if this legislation were presented to the
            President in its current form, his senior advisors
            would recommend that he veto the bill.\26\
    ---------------------------------------------------------------------------
        \26\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, to the Hon.
    Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch McConnell,
    Minority Leader, U.S. Senate (Aug. 22, 2008), at 1 (emphasis in
    original) (Appendix IV).

        As we explain below, none of these inadequacies set out by
    Judge Mukasey and Mr. McConnell have been addressed in the
    Committee-reported version of S. 987.
        As noted in Judge Mukasey and Mr. McConnell's letter, on
    January 23, 2008, 12 members of the intelligence community--six
    of whom continue to serve or previously served in the Obama
    administration--issued a joint letter expressing their ``strong
    opposition'' to the similar predecessor legislation.\27\
    Signatories to that letter included: (1) Mr. McConnell; (2)
    General Hayden, then-CIA Director; (3) James R. Clapper, Jr.,
    then-Under Secretary of Defense for Intelligence and current
    DNI; (4) Robert Mueller, then--and until September 2013--
    Director of the Federal Bureau of Investigation (``FBI''); (5)
    Randall M. Fort, then-Assistant Secretary of State for
    Intelligence and Research; (6) Janice Gardner, then-Assistant
    Secretary for Intelligence and Analysis at the Department of
    the Treasury; (7) Charlie Allen, then-Under Secretary for
    Intelligence and Analysis at the Department of Homeland
    Security; (8) Lieutenant General Keith Alexander, then-and-
    current Director of the National Security Agency (``NSA''); (9)
    Scott Large, then-Director of the National Reconnaissance
    Office; (10) Lieutenant General Michael Maples, then-Director
    of the Defense Intelligence Agency; (11) Vice Admiral Robert
    Murrett, then-Director of the National Geospatial-Intelligence
    Agency; and (12) Rolf Mowatt-Larssen, then-Director for
    Intelligence and Counterintelligence at the Department of
    Energy. They wrote that the legislation ``will undermine our
    ability to protect intelligence sources and methods and could
    seriously impede national security investigations'' and ``will
    impair our ability to collect vital foreign intelligence,
    including through critical relationships with foreign
    governments which are grounded in confidence in our ability to
    protect information from public disclosure.''
    ---------------------------------------------------------------------------
        \27\Letter from J.M. McConnell, Dir. of Nat'l Intelligence et al.,
    to the Hon. Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch
    McConnell, Minority Leader, U.S. Senate (Jan. 23, 2008), at 1 (Appendix
    V).
    ---------------------------------------------------------------------------
        On March 31, 2008, then-Defense Secretary Robert Gates
    issued a views letter expressing the Department of Defense's
    ``strong opposition'' to the similar predecessor
    legislation.\28\ In the letter, Secretary Gates stated that the
    Defense Department is ``concerned that this bill will undermine
    our ability to protect national security information and
    intelligence sources and methods and could seriously impede
    investigations of unauthorized disclosures.'' Secretary Gates
    emphasized that ``[d]isclosures of classified information about
    military operations directly threaten the lives of military
    members and the success of current and future military
    operations'' as well as ``the lives and safety of American
    citizens and the welfare of the Nation.'' Secretary Gates
    concluded that, by providing ``a broadly defined class of
    `covered persons' with extraordinary legal protections against
    having to reveal any confidential sources,'' the bill would
    ``have the unintended consequence of encouraging unauthorized
    disclosures and increasing our nation's vulnerability to
    adversaries' counterintelligence efforts to recruit `covered
    persons.'''
    ---------------------------------------------------------------------------
        \28\Letter from Robert Gates, Sec'y of Defense, U.S. Dep't of
    Defense, to the Hon. Harry Reid, Majority Leader, U.S. Senate (Mar. 31,
    2008), at 1 (Appendix VI).
    ---------------------------------------------------------------------------
        On April 3, 2008, then-Homeland Security Secretary Michael
    Chertoff issued a views letter on behalf of the Department of
    Homeland Security expressing the Department's ``strong
    opposition'' to the legislation.\29\ According to the letter,
    the Department ``believes that [the bill] will make the United
    States both less secure and less free by subverting the
    enforcement of criminal laws and the Federal Government's
    investigatory powers.'' As evidence, Mr. Chertoff, a former
    federal prosecutor and federal appeals court judge, pointed out
    that media shield legislation ``erects significant evidentiary
    burdens to obtaining critical information from anyone who can
    claim to be a journalist, including bloggers, and
    communications service providers, such as internet service
    providers.'' As a result of that significant evidentiary
    burden, Mr. Chertoff stated that the bill would ``delay the
    collection of critical information and ensure that criminals
    have opportunities to avoid detection, continue their
    potentially dangerous operations, and further obfuscate their
    illegal activities.''
    ---------------------------------------------------------------------------
        \29\Letter from Michael Chertoff, Sec'y of Homeland Security, U.S.
    Dep't of Homeland Security, to the Hon. Joseph Lieberman, Chairman,
    Comm. on Homeland Security and Governmental Affairs, U.S. Senate (Apr.
    3, 2008) (Appendix VII).
    ---------------------------------------------------------------------------
        Views letters of opposition to the similar predecessor
    legislation were also submitted by then-Energy Secretary Samuel
    Bodman\30\ and then-Treasury Secretary Henry Paulson.\31\
    ---------------------------------------------------------------------------
        \30\Letter from Samuel W. Bodman, Sec'y of Energy, U.S. Dep't of
    Energy, to the Hon. Carl Levin, Chairman, Senate Comm. on Armed
    Services, U.S. Senate & the Hon. Jeff Bingaman, Chairman, Comm. on Nat.
    Resources, U.S. Senate (Apr. 7, 2008) (Appendix VIII).
        \31\Letter from Henry M. Paulson, Jr., Sec'y of the Treasury, U.S.
    Dep't of the Treasury, to the Hon. Max Baucus, Chairman, Comm. on
    Finance, U.S. Senate (Apr. 15, 2008) (Appendix IX).
    ---------------------------------------------------------------------------
        S. 987 remains substantively the same to the aforementioned
    legislation that was vigorously opposed by executive branch
    agencies in the 110th and 111th Congresses. The short letter
    submitted by Attorney General Holder to Chairman Leahy
    regarding S. 987 is light on analysis and does not answer the
    longstanding concerns raised by his predecessor and the
    intelligence and law enforcement community.\32\ As set forth
    below, these concerns remain unaddressed.
    ---------------------------------------------------------------------------
        \32\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice, to
    Hon. Patrick J. Leahy, Chairman, Comm. on the Judiciary, U.S. Senate
    (July 29, 2013).
    ---------------------------------------------------------------------------

                           CORE OBJECTIONS TO S. 987

    S. 987 places a substantial and unwarranted burden on the Government to
            obtain information

        S. 987 places an extremely heavy burden on a prosecutor or
    litigator seeking information from a journalist by in effect
    forcing the government to wage a mini-trial to meet its burden
    under various tests. In order to do this, federal prosecutors
    may have to reveal extremely sensitive information, including
    information that could imperil national security.
        Under the bill, in order to obtain confidential source
    information, the government must generally prove that all
    reasonable alternative sources have been exhausted, that the
    testimony or document sought is ``essential'' to a prosecution,
    and that nondisclosure would be ``contrary to the public
    interest, taking into account both the public interest in
    gathering and disseminating the information or news at issue
    and maintaining the free flow of information and the public
    interest in compelling disclosure.''\33\ If a court, correctly
    or incorrectly, comes to the conclusion that the government
    still has a potential avenue for further investigation other
    than disclosure from the journalist, the government has no
    choice but to undertake that avenue of investigation.
    Similarly, if a court decides that the information sought is
    not ``essential'' to the government's case, the government
    cannot go forward. As former United States Attorney Patrick
    Fitzgerald wrote in 2007 concerning similar predecessor
    legislation, ``[i]n many cases, authorities would face the
    Catch-22 of being required to prove specific criminal
    activity--in a hearing before a judge, often resulting in
    notice to the subjects of investigation or their associates--
    before they could take the investigative steps to determine
    whether criminal activity had occurred. In effect, the law
    would require `trial before investigation.'''\34\
    ---------------------------------------------------------------------------
        \33\S. 987, 113th Cong. Sec. 2 (as reported by S. Comm. on the
    Judiciary, Sept. 12, 2013).
        \34\Patrick J. Fitzgerald, Shield Law Perils . . . Bill Would Wreak
    Havoc on a System That Isn't Broken, The Washington Post (Oct. 4,
    2007).
    ---------------------------------------------------------------------------
        S. 987 also generally limits the government to using public
    information or information from a third party to establish the
    factual predicate for overcoming the journalist's
    privilege.\35\ As noted by Judge Mukasey and Mr. McConnell,
    ``[g]iven that in many cases publication by the [journalist] is
    the only evidence for seeking source information, this
    requirement is certain to cause serious practical difficulties
    in criminal and civil matters.''\36\
    ---------------------------------------------------------------------------
        \35\S. 987, supra note 33, at Sec. 2(a)(2).
        \36\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26,
    at 6.
    ---------------------------------------------------------------------------
        Also, other than the circumstances enumerated in Sections 4
    and 5, the bill makes no provision whatsoever for exigent
    circumstances that would cause a reasonable person to believe
    that prompt action was necessary. As the procedure for
    overcoming the privilege is both burdensome and time-consuming,
    it is not difficult to envision a scenario wherein the
    assertion of the privilege could derail a critical, fast-moving
    investigation. Suppose a journalist publishes a story about an
    al-Qaeda sleeper cell currently in the United States. The
    journalist's source is one of the terrorists. The government,
    trying to learn more about the cell, subpoenas the journalist,
    the journalist refuses to comply, and the government moves for
    a disclosure order. No one would dispute that prompt action is
    necessary in a case like this. However, because the government
    cannot articulate a specific terrorist act that will be
    prevented by taking action, a court could determine that the
    Section 4 and 5 exceptions to the privilege do not apply, and
    set a hearing to determine whether to order disclosure under
    Section 2. Even if the government prevails in this scenario,
    the journalist can appeal, which consumes even more time. All
    the while, the cell continues to operate freely.

    S. 987 will endanger classified information

        In order for the government to meet the statute's burdens,
    it will almost certainly have to disclose sensitive national
    security information. Although S. 987 exempts certain types of
    information from its coverage, these exceptions are extremely
    narrow--in cases relating to alleged criminal or tortious
    conduct by the journalist; prevention of death, kidnapping,
    substantial bodily injury, a child sex crime, or destruction of
    critical infrastructure; and prevention of future terrorist
    activity or harm to national security.\37\
    ---------------------------------------------------------------------------
        \37\Id. at Sec. Sec. 3-5.
    ---------------------------------------------------------------------------
        In order to prove the existence of a valid exception for
    national security in a classified leak case, the government
    would likely have to contextualize that leak for the court. As
    a result, Judge Mukasey and Mr. McConnell warned that ``the
    Government will often be required to introduce still more
    sensitive and classified information, potentially compounding
    the harm of the initial leak.''\38\ This is unacceptable, and
    largely the result of the bill's failure to explicitly set
    forth guidelines to protect the sensitive national security
    information with which it deals. As General Hayden wrote
    regarding similar predecessor legislation, ``[t]his new
    judicial process likely will require the disclosure of even
    more classified information in order to meet the bill's
    requirements. Even with such additional disclosure, there is no
    assurance that a judge, now occupying this new and uncharted
    role of national security decision-maker, would understand the
    stakes involved.''\39\
    ---------------------------------------------------------------------------
        \38\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 11,
    at 3.
        \39\Hayden, supra note 7.
    ---------------------------------------------------------------------------
        Further, S. 987 severely hinders the government's ability
    to identify the sources of leaked classified information and to
    investigate past and potential future terrorist attacks.
    Sources that hide behind journalists' promises of
    confidentiality in order to perpetrate wrongdoings, such as the
    leaking of classified information, will receive protection
    under S. 987. Former Senator Charles Robb and Judge Laurence
    Silberman, a former member of the Foreign Intelligence
    Surveillance Court of Review, expressed concerns about the
    negative impact of unauthorized disclosures of classified
    information on national security in the report to the President
    by the Commission on the Intelligence Capabilities of the
    United States Regarding Weapons of Mass Destruction. According
    to the Commission's report, ``[t]he scope of damage done to our
    collection capabilities from media disclosures of classified
    information is well documented. Hundreds of serious press leaks
    have significantly impaired U.S. capabilities against our
    hardest targets.''\40\
    ---------------------------------------------------------------------------
        \40\The Commission on the Intelligence Capabilities of the United
    States Regarding Weapons of Mass Destruction, Report to the President
    of the United States, at 381 (Mar. 31, 2005).
    ---------------------------------------------------------------------------
        No one would dispute that such disclosures pose a serious
    threat to national security. However, this bill sets forth
    special standards that place protecting a leaker's identity
    ahead of the safety and security of the country. Such special
    standards are highly inappropriate, as noted by former U.S.
    Attorney Patrick Fitzgerald with respect to similar predecessor
    legislation:

             The proposed shield law poses real hazards to national
            security and law enforcement. The bipartisan Sept. 11
            commission and the Robb-Silberman commission on prewar
            intelligence both found our national security at great
            risk because of the widespread leaking of classified
            information. The proposed law would have the unintended
            but profound effect of handcuffing investigations of
            such leaks.\41\
    ---------------------------------------------------------------------------
        \41\Fitzgerald, supra note 34.

        It is axiomatic that if Congress protects leakers of
    classified and other sensitive information by passing S. 987,
    what will result is more leaks of such information. For
    example, in his 2008 views letter regarding similar predecessor
    legislation, then-Secretary of Defense Robert Gates stated that
    the Defense Department was concerned that a journalist's
    privilege ``will undermine our ability to protect national
    security information and intelligence sources and methods and
    could seriously impede investigations of unauthorized
    disclosures.''\42\ Secretary Gates rightly emphasized that
    ``[d]isclosures of classified information about military
    operations directly threaten the lives of military members and
    the success of current and future military operations'' as well
    as ``the lives and safety of American citizens and the welfare
    of the Nation.''\43\
    ---------------------------------------------------------------------------
        \42\Letter from Robert Gates, Sec'y of Defense, U.S. Dep't of
    Defense, supra note 28, at 1.
        \43\Id. ``Past investigations into unauthorized disclosures through
    the media have found that significant details were revealed to our
    adversaries concerning a wide array of national security matters on
    different occasions. Some examples include a Department of Defense
    surveillance platform's capabilities; war plans that could have allowed
    Saddam Hussein's forces to more effectively position defensive assets;
    plans to insert Special Operations Forces into a battlefield; and the
    capabilities of U.S. imaging satellites'').
    ---------------------------------------------------------------------------
        Congress enacted the relevant criminal laws regarding the
    leaking of classified information precisely to prevent leaks
    from occurring. But instead of making it easier for
    investigators and prosecutors to bring to justice those who
    would imperil our national security, the Committee has endorsed
    legislation that would do the exact opposite by explicitly
    protecting leakers of classified information and increasing the
    burden on those who seek to bring these leakers to justice. The
    cumulative effect of this burden would cripple the government's
    ability to identify and prosecute leakers of classified
    information, and in the process would encourage more leaks that
    threaten national security.

    S. 987 protects an extraordinarily broad class of individuals

        Given the strong and unprecedented protections that this
    bill confers, it is essential to know exactly who will qualify
    for those protections. Recognizing the inherent difficulty, if
    not impossibility, of defining ``journalist'' consistent with
    the First Amendment, the Committee adopted Senator Feinstein's
    amendment, which attempted to narrow the definition of
    ``covered journalist'' to a person who

            is, or on the relevant date, was, an employee,
            independent contractor, or agent of an entity or
            service that disseminates news or information by means
            of newspaper; nonfiction book; wire service; news
            agency; news website, mobile application or other news
            or information service (whether distributed digitally
            or otherwise); news program; magazine or other
            periodical, whether in print, electronic, or other
            format; or through television or radio broadcast,
            multichannel video programming distributor . . . or
            motion picture for public showing; with the primary
            intent to investigate events and procure material in
            order to disseminate to the public news or information
            concerning local, national, or international events or
            other matters of public interest, engages, or as of the
            relevant date engaged, in the regular gathering,
            preparation, collection, photographing, recording,
            writing, editing, reporting or publishing on such
            matters by conducting interviews; making direct
            observations of events; or collecting, reviewing, or
            analyzing original writings, statements,
            communications, reports, memoranda, records,
            transcripts, documents, photographs, recordings, tapes,
            materials, data, or other information whether in paper,
            electronic, or other form; had such intent at the
            inception of the process of gathering the news or
            information sought; and obtained the news or
            information sought in order to disseminate the news or
            information to the public.\44\
    ---------------------------------------------------------------------------
        \44\S. 987, supra note 33, at Sec. 11(l)(A)(i)(I)(aa)-(dd).

    This confusing and lengthy definition would nonetheless appear
    to cover almost anyone, including criminals and other
    individuals with countless opportunities to leak damaging
    information without worrying about any sort of consequence.
    Regardless, this definition inserts yet another factual
    question into the investigative mini-trials that, under this
    bill, will replace the use of ordinary and basic law
    enforcement investigative techniques.
        Perhaps most alarming, the protections could apply to media
    or websites that are linked to terrorists and criminals. The
    bill purports to exempt agents of foreign powers and designated
    terrorist organizations from the definition of ``covered
    journalist.''\45\ However, many terrorist media are neither
    ``designated'' terrorist organizations nor other non-covered
    entities under the bill. It is indisputable that the bill would
    protect ``professional journalists'' employed by the Al Jazeera
    network or the Chinese Communist party's People's Daily or
    ``Russia Today,'' the Russian-based television network funded
    and run by the Federal Agency on Press and Mass Communications
    of the Russian Federation. Thus, all individuals and entities
    who ``gather'' or ``publish'' information about ``matters of
    public interest'' but who are not technically designated
    terrorist organizations, foreign powers, or agents of a foreign
    power will be entitled to S. 987's protections--no matter how
    closely tied they may be to terrorists or other criminals. It
    is not difficult to anticipate the scenarios under which the
    robust protections of S. 987 would be easily abused by those
    who wish to harm our safety and national security.\46\
    ---------------------------------------------------------------------------
        \45\Id. at Sec. 11(l)(A)(iii).
        \46\See, e.g., Gabriel Schoenfeld, Journalism or Espionage,
    National Journal, Issue 17 (Fall 2013) (``The Foreign Press Association
    of New York offers press credentials to anyone who pays its membership
    fee, describing it `as the best $100 value in Town.' It is indeed a
    highly attractive offer if it also comes complete with a fundamental
    right to assume an alias, communicate with U.S. officials in code or
    encrypted emails, and solicit secrets from them with impunity'').
    ---------------------------------------------------------------------------
        S. 987 could be construed to protect other wrongdoers as
    well. As noted in its letter in opposition to the bill, the
    U.S. Chamber of Commerce stated that it is concerned

            with a narrow set of sources who are bad-actors and use
            the media to illegally disseminate confidential
            information. When Congress considered a similar bill in
            2005, the ombudsman for the San Francisco Chronicle
            warned that there is ``danger of mischief on the part
            of sources who know they can escape accountability.''
            Evidentiary privileges should not protect individuals
            who willfully use them to commit and cover up crimes.
            S. 987 would not only protect these individuals, but by
            doing so, would embolden their illegal activities.
              S. 987 would protect people who violate laws that
            safeguard the confidential information of private
            individuals, businesses, and other entities. This
            confidential information includes federally protected
            trade secrets, personal health information, customer or
            employee data, and information sealed under judicial
            protective orders, among others. In these
            circumstances, the public policy decision has been made
            that this information should not be subject to public
            disclosure. When protected information is leaked, there
            is no way to limit the damage of the disclosure. Yet,
            S. 987 would protect those who violate these laws.
              * * *
              S. 987 would also unintentionally undermine other
            aspects of the First Amendment. Under the bill,
            information like a group's member or donor list would
            potentially be unprotected if the information were
            stolen and leaked to a reporter. This is exacerbated
            when the definition of reporter is extended to non-
            traditional news sources that often have a politically
            motivated agenda. The disclosure of this information
            would violate the rights of individuals to freely
            associate and could be used to target and silence those
            who support disfavored causes. As a result, this bill,
            which is aimed at protected First Amendment speech,
            would ultimately undermine those principles by
            facilitating retaliation against certain speakers.\47\
    ---------------------------------------------------------------------------
        \47\Letter from R. Bruce Josten, Executive Vice President of
    Government Affairs, U.S. Chamber of Commerce, to the Hon. Patrick
    Leahy, Chairman, and the Hon. Chuck Grassley, Ranking Member, Comm. on
    the Judiciary, U.S. Senate (July 29, 2013) (Appendix X).

        S. 987 also protects a broad array of individuals in the
    media, including the journalist's employer and parent
    company.\48\ There is no need for this broad protection, as
    standard media sourcing rules generally dictate that a source's
    identity should only be disclosed by a journalist to his or her
    immediate supervisor.\49\
    ---------------------------------------------------------------------------
        \48\S. 987, supra note 33, at Sec. 11(l)(A)(ii).
        \49\See Reuters, Handbook of Journalism, available at http://
    handbook.reuters.com/index.php?title=The_Essentials_
    of_Reuters_sourcing (last visited Sept. 25, 2013) (noting that
    ``[r]eporters are expected to disclose their sources, when asked, to
    their immediate supervisor, whether bureau chief or reporting unit
    head," and that "the supervisor should not disclose the name of the
    source [to others] but may discuss the nature, position, access and
    track record of the source'').
    ---------------------------------------------------------------------------

                   SECTION-BY-SECTION DISCUSSION OF CONCERNS

    Section 2: Compelled disclosure from covered journalists

        Subsection (a) of Section 2 lists the conditions for
    compelled disclosure of protected information. In any federal
    proceeding or in connection with any issue arising under
    federal law, a federal entity may not generally compel
    disclosure of testimony or documents when they relate to
    protected information possessed by a ``covered
    journalist.''\50\ However, a court may compel disclosure if it
    determines that the party seeking to compel production has
    ``exhausted all reasonable alternative sources'' of the
    testimony or documents (other than the covered journalist) and,
    in criminal cases, that:
    ---------------------------------------------------------------------------
        \50\S. 987, supra note 33, at Sec. 2(a).
    ---------------------------------------------------------------------------
               Based on public information or information
            obtained from a source other than the covered
            journalist, there are ``reasonable grounds to believe a
            crime has occurred;''
               Based on public information or information
            obtained from a source other than the covered
            journalist, there are reasonable grounds to believe
            that the testimony or documents sought are ``essential
            to the investigation or prosecution or to the defense
            against the prosecution;''
               The Attorney General certifies that the
            decision to request compelled disclosure was consistent
            with 28 C.F.R. Sec. 50.10 (in circumstances governed by
            that rule); and
               The covered journalist has not established
            by clear and convincing evidence that disclosure of the
            information would be contrary to the public interest,
            ``taking into account both the public interest in
            gathering and disseminating the information or news at
            issue and maintaining the free flow of
            information.''\51\
    ---------------------------------------------------------------------------
        \51\Id.

    The bill also requires the subpoena or court order to be
    ``narrowly tailored in purpose, subject matter, and period of
    time covered so as to avoid compelling disclosure or
    peripheral, nonessential, or speculative information.''\52\
    ---------------------------------------------------------------------------
        \52\Id. at Sec. 2(b).
    ---------------------------------------------------------------------------
        As discussed previously, Section 2 sets an extremely high
    bar for a prosecutor or litigator to obtain critical
    information from a journalist by in effect forcing the
    government to wage a mini-trial to meet its burden under
    various tests. In order to do this, federal prosecutors may
    have to reveal extremely sensitive information, including
    information that could imperil national security. Specifically,
    the government must prove that the information it seeks is both
    ``essential'' to the case and that it has exhausted all
    reasonable alternatives.\53\ These requirements, which are not
    defined in the bill, put a federal judge in the position of
    micromanaging a criminal investigation, even those in the early
    stages when subpoenas are most commonly used to ascertain
    whether a (or which) federal crime has even been committed. If
    a court, correctly or incorrectly, concludes that the
    government has another potential avenue for further
    investigation besides disclosure from the journalist, the
    government has no choice but to undertake that avenue of
    investigation, regardless of the time, expense, and potential
    for compromise involved. Similarly, if a judge decides that the
    information sought is not essential to the government's case,
    the government cannot go forward. Moreover, Section 2 not only
    erects new barriers against law enforcement, but it also
    requires the Attorney General to certify that Justice
    Department policy procedures limiting subpoenas on the press
    were followed.\54\ Notably, apart from generally summarizing
    Section 2's strictures, Attorney General Holder's letter does
    not even mention the operational impact of these two
    requirements.\55\
    ---------------------------------------------------------------------------
        \53\Id. at Sec. 2(a)(1).
        \54\Id. at Sec. 2(a)(2)(iii).
        \55\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice,
    supra note 32.
    ---------------------------------------------------------------------------
        Fundamentally, Section 2 charges federal judges--who
    generally lack the training and expertise necessary to weigh
    the sort of national security considerations often at play--
    with making the ultimate decisions concerning which
    investigations are sensitive enough to get access to a
    journalist's information.\56\ A federal judge is tasked with
    balancing the public interest in the evidence being gathered
    with the ``public interest in gathering and disseminating the
    information or news at issue and maintaining the free flow of
    information.''\57\ Notably, these terms are nowhere defined in
    the bill.
    ---------------------------------------------------------------------------
        \56\See, e.g., Testimony of Deputy Att'y Gen. Paul J. McNulty,
    supra note 7 (``It shifts law enforcement decisions from the executive
    branch to the judiciary. This shift is extraordinarily serious in the
    national security area where the executive officials have access to the
    full array of information necessary to make informed and balanced
    national security judgments. . . . As numerous judges have recognized,
    the courts lack the institutional resources and expertise to make those
    decisions.'') (emphasis added).
        \57\S. 987, supra note 33, at Sec. 2(a)(2)(A)(iv).
    ---------------------------------------------------------------------------
        Judge Mukasey and Mr. McConnell expressed significant
    concern with respect to nearly identical language in
    predecessor legislation: ``These amorphous factors will defy
    consistent or coherent balancing. Indeed, we would submit that
    the open-ended nature of the bill's balancing tests virtually
    guarantees that there will be as many different interpretations
    of its terms as there are Federal judges--with serious
    consequences not just for law enforcement but for journalists
    and the public at large.''\58\ They also emphasized that the
    ``balancing test for a judge in a leak case would rest on the
    relative import he or she placed on the substance of the
    published leak, and whether its disclosure, though unlawful,
    outweighed a demonstrated harm to national security. . . . This
    . . . would effectively give judges authority to immunize
    leakers as a perverse reward for divulging classified
    information that is, in the judge's personal estimation,
    sufficiently enlightening.''\59\
    ---------------------------------------------------------------------------
        \58\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 11,
    at 5.
        \59\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26,
    at 4.
    ---------------------------------------------------------------------------
        We agree with Judge Mukasey and Mr. McConnell that media
    shield legislation unwisely ``transfers key national security
    and prosecutorial decision-making authority--including
    decisions about what does and does not constitute harm to the
    national security--from the executive branch to the judiciary,
    and it gives judges virtually limitless discretion to make such
    determinations by imposing standardless and highly subjective
    balancing tests that could be used to override national
    security interests.''\60\
    ---------------------------------------------------------------------------
        \60\Id. at 2.
    ---------------------------------------------------------------------------
        We also agree with their sentiment that the ``Rule of
    Construction,'' ``which purports to limit any construction of
    the Act that would affect the Foreign Intelligence Surveillance
    Act or the Federal laws or rules relating to grand jury
    secrecy--is insufficient to preserve the range of authorities
    on which the Government relies to conduct national security
    investigations.''\61\
    ---------------------------------------------------------------------------
        \61\Id.
    ---------------------------------------------------------------------------

    Section 3: Exception relating to criminal conduct

        Section 3 provides that the general journalists' privilege
    in Section 2 does not apply to protected information obtained
    as the result of the journalist's eyewitness observations of
    alleged criminal conduct, or any alleged criminal conduct
    committed by a journalist.\62\ However, pursuant to Section
    3(b), this exception does not apply ``if the alleged criminal
    conduct is the act of communicating the documents or
    information at issue.''\63\
    ---------------------------------------------------------------------------
        \62\S. 987, supra note 33, at Sec. 3(a).
        \63\Id. at Sec. 3(b).
    ---------------------------------------------------------------------------
        Although this section purports to remove some information
    from the scope of the journalists' privilege, it actually
    protects information if the crime under investigation is a leak
    of classified or grand jury information to a journalist. As a
    result, S. 987 will encourage leakers of classified or grand
    jury information to get away with clear violations of federal
    law, so long as the recipient of the information promises to
    keep the leaker's identity a secret.
        The language in Section 3(b) is remarkable, as we have been
    unable to find another example in federal criminal law where
    Congress has specified that an individual can seek the
    protection of a court privilege even if that person has
    committed a crime in the process.\64\ Presumably, then, S. 987
    would be the first such court privilege that protects
    lawbreakers. An individual who leaks classified or grand jury
    information commits a grievous crime and does not deserve the
    protection afforded by a journalist's successful assertion of
    privilege. If leakers of classified or grand jury information
    are protected under S. 987, we believe that more leaks will
    result and it will be harder to prosecute them.
    ---------------------------------------------------------------------------
        \64\See Seth Leibsohn & Andrew C. McCarthy, Press That Shield Back,
    National Review, Oct. 18, 2007 (``With this privilege, the media,
    unlike the rest of us, can now skirt a core obligation of citizenship:
    the duty to provide testimony when they witness crimes. Indeed, even if
    they aid and abet certain crimes, our lawmakers would provide them
    cover.'').
    ---------------------------------------------------------------------------
        Grand jury secrecy is one of the cornerstones of our
    federal justice system. As the Supreme Court observed in
    Pittsburgh Plate Glass Co. v. United States,\65\ the secrecy of
    grand jury proceedings: (1) prevents the accused from escaping
    before he is indicted or arrested or from tampering with
    witnesses; (2) prevents disclosure of derogatory information
    presented to the grand jury against an accused who has not been
    indicted; (3) encourages complainants and witnesses to come
    before the grand jury and speak freely without fear of
    reprisal; and (4) encourages the grand jurors to engage in
    uninhibited investigation and deliberation by barring
    disclosure of their votes and comments during the proceedings.
    ---------------------------------------------------------------------------
        \65\360 U.S. 395, 405 (1959).
    ---------------------------------------------------------------------------
        S. 987 protects journalists from having to disclose
    information to the government, even if the crime under
    investigation is the leak of grand jury information to a
    journalist. Specifically, Section 3 states that a journalist
    engaged in criminal conduct cannot take advantage of the
    privilege in this bill. However, subsection (b) provides:
    ``This section shall not apply, and, subject to section 4 and
    5, section 2 shall apply, if the alleged criminal conduct is
    the act of communicating the documents or information at
    issue.''\66\ Therefore, it would appear that Section 3(b) is
    intended to provide a privilege whenever the transmission of
    the information is a crime.
    ---------------------------------------------------------------------------
        \66\S. 987, supra note 33, at Sec. 5.
    ---------------------------------------------------------------------------
        Many grand jury leaks to journalists are made with the goal
    of exposing an ongoing investigation, often with the intention
    of derailing it, or simply because the leaker craves attention.
    Reputations of many innocent Americans have been ruined by
    leaks of sensitive information that later turned out to be
    untrue, such as Richard Jewell, who was falsely alleged to be
    the Olympic Park bomber, and Steven Hatfill, who was falsely
    alleged to have committed the 2001 anthrax attacks.
        Even the bill's lead sponsor has acknowledged the harm that
    can be caused by grand jury leaks. During the Committee's last
    hearing on this topic in 2006, Senator Schumer said: ``When a
    person leaks secret grand jury information, that is against the
    law. Society has made a determination: You leak grand jury
    information, that is against the law. There is no
    countervailing issue here because we have made that--and it is
    routinely done by prosecutors to aid their cases. We have all
    seen it.'' He further stated: ``Leaking the identity of a
    covert CIA agent is against the law. There is no justification
    for a reporter holding information. In cases like these, the
    harm done by the leak and the need to punish the leaker often
    far outweighs the need to keep a source confidential.'' We
    agree.
        Since most grand jury leaks are made to journalists, this
    bill will effectively override Rule 6(e)(2) of the Federal
    Rules of Criminal Procedure, which states that matters
    occurring before a federal grand jury must be kept secret. The
    majority argues that that the rule of construction in Section 9
    that ``Nothing in this Act may be construed to . . . modify the
    requirements of . . . Federal laws or rules relating to grand
    jury secrecy,'' protects grand jury secrecy. However, what
    Section 9 gives with one hand, it takes away with the other,
    stating: ``Except that this Act shall apply in any proceeding
    and in connection with any issue arising under . . . the
    Federal laws or rules relating to grand jury secrecy.''
        In other words, as Judge Mukasey and Mr. McConnell noted
    regarding identical language, this ``does nothing to restrict
    the application of the bill from sheltering violations of
    longstanding and important protections for grand jury
    deliberations. In other words, this privilege can and will be
    used to protect leakers of grand jury information.''\67\
    ---------------------------------------------------------------------------
        \67\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26, at
    5.
    ---------------------------------------------------------------------------
        The Committee rejected an amendment by Senator Sessions to
    exclude federal grand jury information from the privilege by a
    vote of 7 to 11. The majority argued that the amendment would
    apply in cases of leaks made in an attempt to expose grand jury
    corruption and therefore would protect prosecutorial misconduct
    or grand jury bribery. However, instead of leaking sensitive
    grand jury information to a reporter, a source has several
    alternatives to ensure integrity of a trial--a judge, the
    Department of Justice, defense attorneys.
        Notably, Attorney General Holder's letter contains not one
    mention of this ``act of communicating the documents or
    information'' language, which explicitly creates a court
    privilege for those committing federal crimes.\68\
    ---------------------------------------------------------------------------
        \68\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice,
    supra note 32.
    ---------------------------------------------------------------------------

    Section 4: Exception to prevent death, kidnapping, substantial bodily
            injury, sex offenses against minors, or incapacitation or
            destruction of critical infrastructure

        Section 4 states that the general privilege in Section 2
    does not apply to any protected information that is reasonably
    necessary to stop, prevent, or mitigate a specific case of
    death, kidnapping, substantial bodily harm, child sex crime, or
    incapacitation or destruction of critical infrastructure.\69\
    This exception is entirely prospective, as it would protect
    sources in instances where law enforcement was investigating or
    solving violent acts or incapacitation or destruction of
    critical infrastructure that had already occurred.
    ---------------------------------------------------------------------------
        \69\S. 987, supra note 33, at Sec. 4.
    ---------------------------------------------------------------------------
        This limitation makes Section 4's so-called exception
    largely worthless, as most of the investigations that will be
    implicated by this privilege will naturally concern incidents
    that have already occurred. As much as we would like to hope
    that government officials will be able to stop crimes from
    occurring in the first place, the reality is that most law
    enforcement work deals with bringing wrongdoers to justice
    after they have committed a crime, not before. Because of this
    reality, the exceptions in this bill will apply only to a small
    subset of cases--those where the attack or crime has not yet
    occurred. Here is but one real-life example from the Justice
    Department that illustrates the folly of this approach:

              In 2004, the notorious ``BTK Strangler'' emerged from
            years of silence to begin corresponding with media
            representatives and law enforcement entities in
            Wichita, Kansas. The killer calling himself ``BTK'' had
            terrorized Wichita with a string of violent homicides,
            but 13 years had elapsed since his last murder. In
            repeated correspondence, ``BTK'' described previously
            nonpublic details of the past murders and provided
            corroborating evidence such as photographs taken during
            the crimes. Yet authorities were not able to identify a
            suspect. ``BTK'' then sent a computer disk to a
            television station. The television station turned over
            the disk to police, and forensic experts were able to
            extract hidden information from the disk that tied it
            to a particular computer and user. This enabled law
            enforcement officers to arrest Dennis Rader, who
            eventually pled guilty to 10 murders.
              If the television station had refused to disclose the
            computer disk, and [media shield legislation] had
            applied in the case, Rader might never have been
            apprehended and the families of the murder victims
            would still be awaiting justice. Because all of the
            information related to long-past killings, law
            enforcement would not be able to demonstrate that
            disclosure was necessary to prevent imminent death.
            Even if it is assumed that a responsible media outlet
            would voluntarily turn over information related to a
            serial killer, we cannot expect that criminals will
            always provide information to responsible media, or
            that a ``mainstream'' publication will always turn over
            information related to a less sensational crime.\70\

        \70\Letter from Brian A. Benczkowski, Principal Deputy Assistant
    Att'y Gen., U.S. Dep't of Justice, to Rep. Lamar Smith, Ranking
    Member., Comm. on the Judiciary, U.S. House (July 31, 2007) (emphasis
    in original) (Appendix XI).

        Excluding the investigation or solving of violent crimes
    from Section 4 is a serious oversight.

    Section 5: Exception to prevent terrorist activity or harm to the
            national security

        Section 5 creates two classes of exceptions to Section 2's
    general privilege. In a criminal investigation or prosecution
    of the disclosure of ``properly classified'' information,
    Section 2 will not apply if a court finds by a preponderance of
    the evidence that the protected information sought would
    ``materially assist'' the federal government in ``preventing or
    mitigating'' an act of terrorism or ``other acts that have
    caused or are reasonably likely to cause significant and
    articulable harm to national security.''\71\ In any other
    criminal investigation or prosecution for the leak of
    classified or otherwise privileged information, Section 2 will
    not apply if a court finds by a preponderance of the evidence
    that the information sought would ``materially assist'' the
    federal government in ``preventing or mitigating,'' or
    ``identifying the perpetrator'' of an act of terrorism or
    ``other acts that have caused or are reasonably likely to cause
    significant and articulable harm to national security.''\72\ In
    making this determination, a court is instructed to give
    ``appropriate deference'' to a specific factual showing by the
    head of any executive branch agency or department
    concerned.\73\
    ---------------------------------------------------------------------------
        \71\S. 987, supra note 33, at Sec. 5(a)(2)(A).
        \72\Id. at Sec. 5(a)(2)(B).
        \73\Id. at Sec. 5(b).
    ---------------------------------------------------------------------------
        Section 5 also states that any other investigation or
    prosecution having to do with the disclosure of classified
    information is covered by Section 2's general privilege unless
    it prevents or mitigates a terrorist act or harm to national
    security. Additionally, Section 5 provides that the potential
    for additional unlawful disclosure of the protected information
    by the source, shall not, without an additional factual
    showing, be sufficient to establish that disclosure of the
    information would materially assist the federal government in
    ``preventing or mitigating'' an act of terrorism.
        Although Section 5 provides a limited exception to the
    journalist privilege for acts of terrorism or ``significant and
    articulable'' harm to the national security, this exception is
    far too narrow. On its face, the classified information
    exception extends only to potential or future harms to national
    security--harms that still can be ``prevented'' or
    ``mitigated.'' As noted by Judge Mukasey and Mr. McConnell with
    respect to similar predecessor legislation, this exception
    ``expressly would not apply in cases where the Government is
    investigating serious harms (other than leaks of classified
    information) that have already occurred, including acts of
    sabotage and outright attacks on the United States. In such
    cases, the Government could seek to compel disclosure only as
    authorized under the more onerous provisions of Section
    2.''\74\
    ---------------------------------------------------------------------------
        \74\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26,
    at 3.
    ---------------------------------------------------------------------------
        Even in other cases involving national security, the
    exception only permits investigation into past events to
    ``identif[y] the perpetrator.'' It would not apply to
    investigations of attacks that have already occurred once the
    perpetrator has been identified. Investigation into the
    perpetrator's terrorist ties and finances, or to cull together
    evidence for a future criminal prosecution, would not be
    covered by the exception. Thus, for instance, Section 5 would
    not cover investigation into the Fort Hood shooting or the
    attempted bombing of Northwest Flight 253 on Christmas Day 2009
    or the attempted attack on Times Square in 2010, as the
    perpetrators of these terrorist acts have already been
    identified.
        The inclusion of a materiality requirement and a
    ``significant and articulable harm to national security''
    standard in Section 5 is also cause for concern. Essentially,
    the government must show, by a preponderance of the evidence,
    both that the information sought will be sufficiently
    significant to influence the outcome of the investigation and
    that the harm under investigation is itself significant. It is
    not coincidence that the standard for most investigative
    authorities--such as a subpoena--is relevance, with only the
    most intrusive requiring a heightened probable cause standard.
    This reasoned approach recognizes that in the early stages of
    an investigation, a higher standard is often incompatible with
    the facts that can or should be expected to be known about a
    specific offense when it first comes to light. But S. 987 turns
    this long-standing and well-tested investigative pyramid on its
    head by requiring the higher standard of preponderance of the
    evidence for the use of basic methods that, in turn, are
    supposed to provide the foundation for an investigation. The
    significance and scope of a national security threat is often
    not apparent at the early stages of an investigation and could
    be impossible to prove. S. 987 would require investigators and
    prosecutors to conduct a mini-trial to prove the nature of a
    threat, well before the full picture has become clear.
    Investigators are supposed to gather information to assess
    threats, not prove threats in court to get access to
    information about the same threat. As Judge Mukasey and Mr.
    McConnell noted with respect to a similar provision in similar
    predecessor legislation, this provision ``transfers to the
    courts such core determinations as when investigative subpoenas
    are necessary and what constitutes harm to the national
    security. Not only is this shift made, but in many cases, the
    Government will need to make its showing at an early state of
    investigation. This is precisely backwards.''\75\
    ---------------------------------------------------------------------------
        \75\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 11,
    at 5.
    ---------------------------------------------------------------------------
        Further, the ``appropriate deference'' that courts must
    show to executive branch agencies is an extremely vague
    standard and is likely to be interpreted in different ways by
    different courts. In the fall of 2009, in the USA PATRIOT Act
    reauthorization context, this Committee voted to reject a
    similar standard--including the same use of the word
    ``appropriate''--in the context of the nondisclosure of
    national security letters.\76\ S. 987 brings back this
    meaningless ``appropriate deference'' language, which the
    Committee rejected during that debate in favor of a more
    meaningful ``substantial weight'' standard.\77\

        \76\S. 1692, 111th Cong. (as reported by S. Comm. on the Judiciary,
    Oct. 13, 2009).

        \77\Executive Business Meeting, S. Comm. on the Judiciary, 111th
    Cong. (Oct. 1, 2009).
    ---------------------------------------------------------------------------
        In addition, Section 5 requires the government to show in
    most cases involving leaked classified information that the
    information was ``properly classified'' and that the leak was
    ``reasonably likely to cause significant and articulable harm
    to national security.''\78\ As Judge Mukasey and Mr. McConnell
    noted with respect to the use of this phrase in similar
    predecessor legislation, this ``raises the troubling prospect
    of every leak investigation becoming a mini-trial over the
    propriety of the Government's classification decision.''\79\ It
    will ``invite litigants and courts to second-guess the
    classification decision [by intelligence and law enforcement
    officials] without the benefit of either experience or
    expertise in--to say nothing of legal responsibility for--
    matters of national security.''\80\ During the Committee's last
    hearing on this topic in 2006, then-Deputy Attorney General
    Paul McNulty testified regarding the problem with giving judges
    the authority to determine what is ``properly classified'':

        \78\ S. 987, supra note 33 at Sec. 5(a)(2)(A) (2013).
        \79\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 5, at
    3.
        \80\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 22,
    at 3.
    ---------------------------------------------------------------------------
              I think a significant problem . . . [is] the court
            also has to make a decision that this information has
            been properly classified. And that in itself is a big
            undertaking because it then puts the judge in the
            position of making--or exercising the kind of judgment
            that experts in the field have to exercise, which is to
            know that if this information were to get into the
            hands of the enemy or do harm to the United States and
            other aspects of classification.\81\
    ---------------------------------------------------------------------------
        \81\Testimony of Deputy Attorney Gen. Paul J. McNulty, supra note
    7, at 8.

    As one commentator has noted, ``[t]he main effect of a shield
    law would thus be to the [sic] draw the judicial branch into
    the very heart of foreign-policy decisionmaking, requiring
    judges to evaluate matters that they lack either the expertise
    or the experience to assess. As a result, the confusion that
    now exists among the various federal circuit courts would not
    be cleared up; it would be deepened.''\82\
    ---------------------------------------------------------------------------
        \82\Gabriel Schoenfeld, Why Journalists Are Not Above the Law,
    Commentary Magazine, February 2007.
    ---------------------------------------------------------------------------
        Moreover, as noted by Judge Mukasey and Mr. McConnell,

            such second-guessing would involve the application of a
            novel standard that does not even track the standards
            that are used in national security classifications.
            Specifically, to persuade a judge to compel disclosure
            . . . the Government will have to show that the leak
            caused or will cause ``significant and articulable
            harm'' to the national security. This standard has no
            analogue in the intelligence community. Pursuant to
            Executive Order 12958, as amended, the Government
            classifies information at three basic levels:
            ``Confidential,'' ``Secret,'' and ``Top Secret.'' By
            definition, those terms apply, respectively, to
            information the unauthorized disclosure of which
            reasonably could be expected to cause ``damage''
            (Confidential), ``serious damage'' (Secret), and
            ``exceptionally grave damage'' (Top Secret) to national
            security. Thus, a leak of properly classified
            [information] by definition constitutes harm to the
            national security. Particularly with respect to
            ``Confidential'' information, however, the harm is
            arguably less severe than the Government would be
            required to demonstrate under Section 5. The bill could
            thus expose large amounts of properly classified
            information to unauthorized disclosure while
            effectively blocking any investigation or prosecution
            of those who leak such information.

        This is not only a major oversight, but also could
    effectively render null and void the existing classification
    system without establishing any safeguards in its place.
        Finally, it is disconcerting that the fact that the source
    is likely to leak classified or other sensitive information
    again is not enough to remove a case from Section 2's general
    privilege. This means that information that the government
    cannot tie to a future act of terrorism, or harm to national
    security, would be covered under the privilege both in the
    present and in the future. The Committee rejected an amendment
    by Senator Sessions by a vote of 6 to 11 with Senator Feinstein
    voting ``present,''\83\ to exempt from S. 987 any cases
    concerning classified information. It also rejected by a vote
    of 7 to 11 an amendment by Senator Cornyn to exempt from S. 987
    material support of terrorism cases.
    ---------------------------------------------------------------------------
        \83\In explaining her vote, Senator Feinstein stated:
    ``[C]lassified information may seem harmless to one person where it may
    unveil the possibility of a source, the identification of a source, or
    a method, and if it is classified, it is classified, and there is a
    prison sentence of up to 10 years. The problem is it is hard to
    investigate and convict this. So I do not want to make that more
    difficult. . . . I want to talk to Director [of National Intelligence]
    Clapper about his recommendation. . . . But there is every reason to
    believe every one of us really ought to be concerned about leaks.''
    Executive Business Meeting, S. Comm. on the Judiciary, 113th Cong.
    (Sept. 12, 2013), available at: http://www.judiciary.senate.gov/
    hearings/hearing.cfm?id=6225bf1b82 d2592b6b470bc0d4b52acb (last visited
    Sept. 30, 2013).
    ---------------------------------------------------------------------------

    Section 6: Compelled disclosure from communications service providers

        Section 6 applies the protections from Sections 2 through 5
    to records and other information related to a business
    transaction between a communications service provider and a
    journalist.\84\ A court seeking disclosure must provide the
    journalist who is a party to the business transaction notice of
    the request and subpoena as well as an opportunity to be
    heard.\85\ The notice provision may be delayed for not more
    than 45 days only if the court determines by clear and
    convincing evidence that notice would pose a ``clear and
    substantial threat to the integrity of a criminal
    investigation, would risk grave harm to national security, or
    would present an imminent risk of death or serious bodily
    injury.''\86\ The delayed notification period is limited to one
    45-day period and one renewal of the initial 45-day period, if
    the judge makes a new determination by clear and convincing
    evidence.\87\ This section provides that a ``clear and
    substantial threat to the integrity of a criminal
    investigation'' exists if a judge finds by clear and convincing
    evidence that the target may learn of the investigation and
    destroy evidence if notice is provided.\88\
    ---------------------------------------------------------------------------
        \84\S. 987, supra note 33, at Sec. 6(a).
        \85\Id. at Sec. 6(b).
        \86\Id. at Sec. 6(c)(1).
        \87\Id. at Sec. 6(c)(2).
        \88\Id. at Sec. 6(c)(3).
    ---------------------------------------------------------------------------
        Section 6 also extends the protections of this bill to 18
    U.S.C. Sec. 2709, which authorizes the issuance of national
    security letters (``NSL'') for subscriber information, toll
    billing records information, and electronic communication
    transactional records. The provisions of Sections 2 through 5
    apply to NSL requests for information under Sec. 2709, except
    that in criminal investigations, the court will have to
    determine that there are reasonable grounds to believe that a
    crime has occurred or that the DOJ complied with its
    regulations in Section 50.10 of title 28, Code of Federal
    Regulations (``Policy on Issuing Subpoenas to Members of the
    News Media''), which include the requirement that the
    government exhausted all reasonable alternative sources.
    However, the court would still have to determine that: (1)
    there are reasonable grounds to believe that the information
    sought is essential to the investigation; and (2) the
    journalist failed to establish by clear and convincing evidence
    that the disclosure of information identifying his or her
    source or the information obtained from that source would be
    contrary to the public interest.\89\
    ---------------------------------------------------------------------------
        \89\Id. at Sec. 6(a)(2).
    ---------------------------------------------------------------------------
        Unless a journalist is given notice and an opportunity to
    be heard, this section prohibits a judge from compelling: (1) a
    covered service provider to comply with an NSL or other legal
    process related to a journalist's account with such service
    provider, or (2) a journalist to testify or disclose a
    document. Although subsection (c) allows the government to
    delay this hearing for up to two 45-day periods, the covered
    service provider cannot provide the requested documents until
    it receives a court order or the consent of the journalist.
        Section 6 again will force the government to wage a mini-
    trial to meet its burden, not only to overcome the general
    privilege set forth in Section 2, but even to delay notice by
    proving by clear and convincing evidence that notice ``would
    pose a clear and substantial threat to the integrity of a
    criminal investigation, would risk grave harm to national
    security, or would present an imminent risk of death or serious
    bodily injury.''\90\
    ---------------------------------------------------------------------------
        \90\Id. at Sec. 6(c)(1).
    ---------------------------------------------------------------------------
        Under current law, notice of a subpoena in general may be
    delayed for indefinitely renewable 90-day periods. It is
    unclear why delay in this context should be limited to only one
    45-day renewal period. This limitation presents a significant
    administrative burden on the government, as the information
    obtained in the first 45 days of an investigation may not
    produce sufficient evidence to show a ``clear and substantial
    threat'' to the integrity of the investigation exists. This
    could result in federal investigators delaying subpoenaing
    records in time-sensitive investigations to prevent the target
    from finding out about the investigation. Additionally,
    investigations into terrorist recruiting and financing can take
    years to unravel. Such cases likely involve subpoenaing bank
    and telephone records. If the government can only delay such
    notification to covered journalists for a maximum of 90 days,
    it could easily end or expose the entire investigation. For
    instance, in May of this year, two Somali men, Omar Mohamed and
    Kamal Hassan, were convicted of recruiting individuals in
    Minnesota for the designated terrorist organization al-Shabab.
    The FBI's investigation lasted four years, which resulted in 18
    individuals being charged with material support to al-Shabab.
    One has to wonder whether the same outcome would have been
    reached had this bill been law. Moreover, if this bill were to
    become law, it is not hard to imagine a new effort to require
    unyielding notification of all subpoenas, regardless of the
    recipient or type of investigation.
        Finally, the definition of ``clear and substantial threat
    to the integrity of a criminal investigation'' leaves out
    several categorical situations that are found under current
    subpoena authority under Title 18 of the United States Code,
    including flight, tampering with evidence and intimidation of a
    potential witness. Limiting the delayed notification to only
    cases of ``destruction of evidence'' could seriously hamper law
    enforcement's ability to delay notification, even when the
    facts of a particular investigation demand it.

    Section 7: Sources and work product produced without promise or
            agreement of confidentiality

        Section 7 states that nothing in S. 987 ``shall supersede,
    dilute, or preclude any law or court decision compelling or not
    compelling disclosure'' of ``information identifying a source
    who provided information without a promise or agreement of
    confidentiality made by the covered journalist as part of
    engaging in journalism'' or ``records, other information, or
    contents of a communication obtained without a promise or
    agreement that such records, other information, or contents of
    a communication would be confidential.''\91\ Thus, S. 987
    appears to protect only confidential communications.
    ---------------------------------------------------------------------------
        \91\Id. at Sec. 7.
    ---------------------------------------------------------------------------
        Although Section 7 is presumably intended to limit S. 987
    to confidential communications between a source and a
    journalist, it does not put the burden on the journalist to
    demonstrate that he or she is acting under a promise of
    confidentiality. Rather, Section 2 appears to put the
    government to its high burden without requiring the journalist
    to demonstrate any such promise or agreement, making the
    limitation of ``protected information'' to confidential
    communications entirely toothless. As the purpose of the
    privilege set forth in S. 987 is to permit a journalist to
    protect a confidential source, there is no need for this
    privilege to exist in instances where the source has waived
    confidentiality.

    Section 8: Procedures for review and appeal

        Pursuant to Section 8, upon a showing of good cause, a
    federal court can receive and consider a submission from the
    parties in camera, under seal, or, ``if the court determines it
    is necessary, ex parte.''\92\ A court can find the covered
    journalist in civil or criminal contempt if he or she fails to
    comply with an order of a federal court compelling disclosure
    of protected information. ``To the extent practicable,'' a
    court must make its determination within 30 days after
    receiving such a motion.\93\ All appeals under this section
    must be ``expedite[d] to the greatest extent possible.''\94\
    ---------------------------------------------------------------------------
        \92\Id. at Sec. 8(a).
        \93\Id. at Sec. 8(c).
        \94\Id. at Sec. 8(d).
    ---------------------------------------------------------------------------
        Section 8, however, does not prevent a journalist from
    defying a contempt order, even after a federal court concludes
    that the government has met the extremely high bar for
    compelling disclosure. Journalists can continue to invoke the
    privilege even after the source to which they promised
    confidentiality has released the journalist from the agreement.
    In short, S. 987 would impose significant burdens upon the
    government while leaving ``covered journalists'' free to flout
    the very law that protects them. This is inequitable. If a
    journalist is going to seek protection under a shield statute,
    he or she should have to comply with the statute in its
    entirety: if the court concludes that the government has met
    its high burden, the information should be turned over.
        Also, Section 8 states that ``upon a showing of good cause,
    [a] judge of the United States may receive and consider
    submissions from the parties in camera, under seal, and if the
    court determines it is necessary, ex parte.''\95\ It is not
    sufficient to give unfettered discretion to the court to air
    sensitive and classified information in public. The 2008 views
    letter from Judge Mukasey and Mr. McConnell stated that leaving
    this decision to the court's discretion will require the
    government to ``almost certainly have to reveal additional
    sensitive and classified information.''\96\ The lack of a
    mandatory language (e.g., ``upon a showing of good cause . . .
    [a] judge of the United States shall receive and consider
    submissions from the parties'') could leave the government in
    the untenable situation of having to either expose sensitive or
    classified information in open court, or drop the case. In
    other words, even if the government has shown good cause, the
    court can still tell the government it has to litigate in open
    court. Supporters of S. 987 have not justified the need for a
    judge to be able to force the government to expose sensitive
    information in open court, even where the government has shown
    good cause for proceedings to be secret.
    ---------------------------------------------------------------------------
        \95\Id. at Sec. 8(a) (emphasis added).
        \96\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26, at
    7.
    ---------------------------------------------------------------------------
        The majority views argue that under the Classified
    Information Protection Act (``CIPA''), federal district courts
    have the ability to make some accommodation of the government's
    interest in non-disclosure. But CIPA only applies to criminal
    matters,\97\ and therefore would not apply in a case involving
    the subpoena of a journalist, which is a civil proceeding. In
    civil proceedings, the government must assert the state secrets
    privilege to protect against the disclosure of classified
    information. Regardless, CIPA and the state secrets privilege
    apply to cases involving classified information, but many cases
    involve sensitive information that is not necessarily
    classified, e.g., white collar criminal investigations that
    take years to develop and could be undone if the nature of the
    investigation is released prematurely; cases involving gangs
    and organized crime where, if sensitive information were
    prematurely released, could lead to the intimidation of or
    physical harm to witnesses.
    ---------------------------------------------------------------------------
        \97\See 18 U.S.C. app. 3, Sec. Sec. 1, 4.
    ---------------------------------------------------------------------------

    Section 9: Rule of construction

        Section 9 provides that nothing in S. 987 may be construed
    to preempt any law or claim to defamation, slander or libel;
    modify the laws regarding grand jury secrecy--``except that
    this Act shall apply to in any proceeding and in connection
    with any issue arising under that section or the Federal laws
    or rules relating to grand jury secrecy''; create new
    obligations or modifications with respect to Foreign
    Intelligence Surveillance Act (``FISA''), or preclude voluntary
    disclosure to a federal entity in a situation that is not
    governed by S. 987.\98\
    ---------------------------------------------------------------------------
        \98\S. 987, supra note 33, at Sec. 9.
    ---------------------------------------------------------------------------
        This section is mere window-dressing, as it in no way
    modifies Section 3's proviso that where ``the alleged criminal
    or tortious conduct is the act of communicating the documents
    or information at issue,''\99\ the privilege set forth in
    Section 2 remains available to the journalist. If there was any
    doubt on this point, the ``Rule of Construction'' makes clear
    that ``this Act shall apply in any proceeding and in connection
    with any issue arising under . . . rules relating to grand jury
    secrecy.''\100\
    ---------------------------------------------------------------------------
        \99\Id. at Sec. 3(b).
        \100\Id. at 9(2).
    ---------------------------------------------------------------------------
        Further, similar language was criticized by Judge Mukasey
    and Mr. McConnell in their 2008 views letter:

              First, the provision leaves out key, non-FISA tools
            that are essential to the protection of the national
            security. The wire-tapping provisions of Title III
            [and] pen-register trap-and-trace authority . . . are
            as important, and in some cases more important, to the
            Government's ability to investigate those who have
            caused or would cause harm to our national security (to
            say nothing of other serious crimes unrelated to the
            national security). Yet this bill remains silent as to
            them, leaving one with the distinct impression that
            this legislation can and will--and indeed is intended
            to--interfere with the Government's use of those tools
            in cases where it seeks information provided to a
            journalist by a confidential source. Prior to September
            11, 2001, it was precisely this type of ambiguity
            between application of tools available to intelligence
            and law enforcement that created ``the wall''--a series
            of barriers to information sharing that had serious
            consequences for our counterterrorism efforts.
              Second, it is unclear that the additional
            language\101\ will in fact protect the Government's
            ability to use FISA effectively. The goal, we are told,
            is to ensure that the Government can continue to gather
            and disseminate intelligence and surveillance
            information pursuant to a FISA court order. Why not
            then simply say, ``The provisions of this Act shall not
            apply to the use of the authorities provided for in the
            Foreign Intelligence Surveillance Act or to any
            information acquired thereunder''?\102\
    ---------------------------------------------------------------------------
        \101\The ``additional language'' referred to by Judge Mukasey and
    Mr. McConnell, which was included in similar predecessor legislation in
    an attempt to address concerns expressed by them and others in the
    intelligence and law enforcement communities, appears in Section 9 of
    S. 987 verbatim: ``Nothing in this Act may be construed to . . . create
    new obligations, or affect or modify the authorities or obligations of
    a Federal entity with respect to the acquisition or dissemination of
    information pursuant to the Foreign Intelligence Surveillance Act of
    1978 (50 U.S.C. 1801 et seq.).''
        \102\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26, at
    4-5 (emphasis added).

        Notably, Attorney General Holder's letter does not address
    how this language, which was deemed woefully inadequate by his
    predecessor, is now acceptable.\103\
    ---------------------------------------------------------------------------
        \103\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice,
    supra note 32.
    ---------------------------------------------------------------------------

    Section 11: Definitions

        As discussed previously, the definitions of ``covered
    journalist'' covers an astonishingly broad class of persons.
    Although the Committee accepted an amendment introduced by
    Senators Feinstein and Durbin by a vote of 13 to 5, which
    purports to narrow that definition, significant concerns
    remain.
        For example, although S. 987 purports to carve out agents
    of foreign powers and designated terrorist organizations from
    the definition of ``covered journalist,'' many terrorist media
    are neither ``designated terrorist organizations'' nor covered
    entities under the bill. Thus, all individuals and entities who
    ``gather'' or ``publish'' information about ``matters of public
    interest'' but who are not technically designated terrorist
    organizations, foreign powers, or agents of a foreign power
    will be entitled to S. 987's protections--no matter how closely
    linked they may be to terrorists or other criminals.
        However, in his 2008 views letter, then-Secretary of
    Defense Gates warned about a nearly identical exception in
    similar predecessor legislation: ``This would have the
    unintended consequence of encouraging unauthorized disclosures
    and increasing our nation's vulnerability to adversaries'
    counterintelligence efforts to recruit covered persons.''\104\
    Similarly, Judge Mukasey and Mr. McConnell warned that the
    prohibition on a ``designated terrorist organization'' from
    being covered is insufficient and that ``individuals seeking to
    avail themselves of this privilege will be able to do so as
    long as they can stay one step ahead of the agencies
    responsible for designating terrorist organizations.''\105\
    ---------------------------------------------------------------------------
        \104\Letter from Robert Gates, Sec'y of Defense, U.S. Dep't of
    Defense, supra note 28, at 1.
        \105\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
    Justice & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26, at
    6.
    ---------------------------------------------------------------------------
        Also, the definition of protected information makes
    multiple references to the term ``journalism,'' which is not
    defined in S. 987.
        Finally, the definition of ``covered journalist'' raises
    serious First Amendment concerns, as discussed in the
    Additional Views submitted herein by Senators Cornyn, Sessions,
    Lee, and Cruz.

                                   CONCLUSION

        S. 987, the ``Free Flow of Information Act of 2013,'' would
    dramatically shift the process by which law enforcement goes
    about compelling disclosure of information from journalists. By
    establishing a nearly impenetrable privilege at the federal
    level, it would seriously impede criminal investigations and
    prosecutions, including those dealing with cases of terrorism
    and national security.
        There is no question that a free press is vital to our
    democracy. Nevertheless, we must remember that the Constitution
    also speaks of securing the ``blessings of liberty to ourselves
    and our posterity,'' insuring ``domestic tranquility,'' and
    providing ``for the common defense.'' In the face of the most
    devastating leaks of classified information in our nation's
    history and a continued struggle to protect ourselves from
    another terrorist attack, we should not respond to overreaches
    by the Obama administration with an overbroad piece of
    legislation that does not even address those transgressions--as
    the bill's sponsors concede--at the expense of the rule of law
    and the security of the American people.
        In their 2008 letter, the heads of the CIA, FBI, NSA,
    Defense Intelligence Agency, Department of Homeland Security,
    and the Departments of Defense, State, and Treasury, among
    others, relayed serious concerns about similar predecessor
    legislation, many of which are relevant to this bill:

              [T]he bill will undermine our ability to protect
            intelligence sources and methods and could seriously
            impede national security investigations . . . The high
            burden placed on the Government . . . will make it
            difficult, if not impossible, to investigate harms to
            the national security and only encourage others to
            illegally disclose the Nation's sensitive secrets.
            These problems, in turn, will impair our ability to
            collect vital foreign intelligence, including through
            critical relationships with foreign governments which
            are grounded in confidence in our ability to protect
            information from public disclosure.
              Safeguarding classified information in a free and
            open society already is a challenge for the
            intelligence community. We ask that Congress not make
            that challenge even more daunting.

        Now more than ever, in the face of historic breaches of our
    nation's security, Congress should heed this warning. Before
    proceeding with this or any similar legislation, we must first
    determine how it will affect the ability of the United States
    to keep critical classified and sensitive information from our
    enemies, and to identify and hold accountable those who
    willfully jeopardize the security of this nation by leaking
    classified information.

                                       Jeff Sessions.
                                       John Cornyn.

    ADDITIONAL MINORITY VIEWS FROM SENATORS CORNYN, SESSIONS, LEE, AND CRUZ

        On December 15, 1791, the United States of America ratified
    the Bill of Rights--the first ten amendments to the U.S.
    Constitution. The first among them states: ``Congress shall
    make no law . . . abridging the freedom . . . of the press[.]''
    United States Constitution, amend. I.
        The freedom of the press does not discriminate amongst
    groups or individuals--it applies to all Americans. As the
    Supreme Court has long recognized, it was not intended to be
    limited to an organized industry or professional journalistic
    elite. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (the
    ``liberty of the press is the right of the lonely pamphleteer
    who uses carbon paper or a mimeograph just as much as of the
    large metropolitan publisher who utilizes the latest
    photocomposition methods. Freedom of the press is a fundamental
    personal right[.]''); Lovell v. Griffin, 303 U.S. 444, 452
    (1938) (``The liberty of the press is not confined to
    newspapers and periodicals. It necessarily embraces pamphlets
    and leaflets. . . . The press in its historic connotation
    comprehends every sort of publication which affords a vehicle
    of information and opinion.'').
        The Founders recognized that selectively extending the
    freedom of the press would require the government to decide who
    was a journalist worthy of protection and who was not, a form
    of licensure that was no freedom at all. As Justice White
    observed in Branzburg, administering a privilege for reporters
    necessitates defining ``those categories of newsmen who
    qualified for the privilege.'' 408 U.S. at 704 That inevitably
    does violence to ``the traditional doctrine that liberty of the
    press is the right of the lonely pamphleteer who uses carbon
    paper or a mimeograph just as much as of the large metropolitan
    publisher who utilizes the latest photocomposition methods.''
    Id.
        The First Amendment was adopted to prevent--not further--
    the federal government licensing of media. See Lovell, 303 U.S.
    at 451 (striking an ordinance ``that . . . strikes at the very
    foundation of the freedom of the press by subjecting it to
    license and censorship. The struggle for the freedom of the
    press was primarily directed against the power of the
    licensor.'').
        But federal government licensing is exactly what the Free
    Flow of Information Act would create. The bill identifies
    favored forms of media--``legitimate'' press--by granting them
    a special privilege. That selective grant of privilege is
    inimical to the First Amendment, which promises all citizens
    the ``freedom of the press.'' See Branzburg, 408 U.S. at 704
    (``Freedom of the press is a fundamental personal right[.]'')
    (emphasis added). It also threatens the viability of any other
    form of press. The specially privileged press will gain easier
    access to news. That will tip the scales against its
    competitors and make it beholden to the government for that
    competitive advantage. A law enacted to protect the press from
    the state will, in fact, make that press dependent upon the
    federal government--anything but free.
        Proponents of this bill suggest that, because the
    Constitution does not provide a reporter's privilege,
    Congress's provision of a limited privilege cannot raise any
    constitutional concerns. Those proponents misunderstand--and
    thus run afoul of--the First Amendment. The First Amendment was
    adopted to prevent press licensure. While it does not create a
    ``reporter's privilege'' on its own, it abhors the selective
    grant of privilege to one medium over another. The American
    Revolution was stoked by renegade pamphleteers and town criers
    who used unlicensed presses to overthrow tyranny. Today, ``any
    person with a phone line can become a town crier with a voice
    that resonates farther than it could from any soapbox. Through
    the use of Web pages, mail exploders, and newsgroups, the same
    individual can become a pamphleteer.'' Reno v. Am. Civil
    Liberties Union, 521 U.S. 844, 870 (1997). If today's town
    crier or pamphleteer must meet a test set by the federal
    government to avail themselves of liberty, we have gone less
    far from tyranny than any of us want to admit.
        This bill runs afoul of the First Amendment to the United
    States Constitution and amounts to de facto licensing. It would
    weaken the newly-illegitimate press, render the specially
    privileged press supplicant to the federal government and
    ultimately undermine liberty.
        This legislation also raises a number of serious national
    security concerns, as discussed in the minority views authored
    by Senator Sessions.
        For these reasons, we oppose this bill.

                                       John Cornyn.
                                       Jeff Sessions.
                                       Michael S. Lee.
                                       Ted Cruz.

           IX. Changes to Existing Law Made by the Bill, as Reported

        The bill makes no changes to existing Federal law.