[House Report 117-354]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2nd Session } { 117-354
======================================================================
PROTECT REPORTERS FROM EXPLOITATIVE STATE SPYING ACT
_______
June 7, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 4330]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4330) to maintain the free flow of information to
the public by establishing appropriate limits on the federally
compelled disclosure of information obtained as part of
engaging in journalism, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 4
Hearings......................................................... 9
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 10
Committee Estimate of Budgetary Effects.......................... 10
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 10
Duplication of Federal Programs.................................. 10
Performance Goals and Objectives................................. 10
Advisory on Earmarks............................................. 11
Section-by-Section Analysis...................................... 11
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protect Reporters from Exploitative
State Spying Act'' or the ``PRESS Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Covered journalist.--The term ``covered journalist''
means a person who regularly gathers, prepares, collects,
photographs, records, writes, edits, reports, investigates, or
publishes news or information that concerns local, national, or
international events or other matters of public interest for
dissemination to the public.
(2) Covered service provider.--
(A) In general.--The term ``covered service
provider'' means any person that, by an electronic
means, stores, processes, or transmits information in
order to provide a service to customers of the person.
(B) Inclusions.--The term ``covered service
provider'' includes--
(i) a telecommunications carrier and a
provider of an information service (as such
terms are defined in section 3 of the
Communications Act of 1934 (47 U.S.C. 153));
(ii) a provider of an interactive computer
service and an information content provider (as
such terms are defined in section 230 of the
Communications Act of 1934 (47 U.S.C. 230));
(iii) a provider of remote computing service
(as defined in section 2711 of title 18, United
States Code); and
(iv) a provider of electronic communication
service (as defined in section 2510 of title
18, United States Code) to the public.
(3) Document.--The term ``document'' means writings,
recordings, and photographs, as those terms are defined by
Federal Rule of Evidence 1001 (28 U.S.C. App.).
(4) Federal entity.--The term ``Federal entity'' means an
entity or employee of the judicial or executive branch or an
administrative agency of the Federal Government with the power
to issue a subpoena or issue other compulsory process.
(5) Journalism.--The term ``journalism'' means gathering,
preparing, collecting, photographing, recording, writing,
editing, reporting, investigating, or publishing news or
information that concerns local, national, or international
events or other matters of public interest for dissemination to
the public.
(6) Personal account of a covered journalist.--The term
``personal account of a covered journalist'' means an account
with a covered service provider used by a covered journalist
that is not provided, administered, or operated by the employer
of the covered journalist.
(7) Personal technology device of a covered journalist.--The
term ``personal technology device of a covered journalist''
means a handheld communications device, laptop computer,
desktop computer, or other internet-connected device used by a
covered journalist that is not provided or administered by the
employer of the covered journalist.
(8) Protected information.--The term ``protected
information'' means any information identifying a source who
provided information as part of engaging in journalism, and any
records, contents of a communication, documents, or information
that a covered journalist obtained or created as part of
engaging in journalism.
SEC. 3. LIMITS ON COMPELLED DISCLOSURE FROM COVERED JOURNALISTS.
In any matter arising under Federal law, a Federal entity may not
compel a covered journalist to disclose protected information, unless a
court in the judicial district in which the subpoena or other
compulsory process is, or will be, issued determines by a preponderance
of the evidence, after providing notice and an opportunity to be heard
to the covered journalist that--
(1) disclosure of the protected information is necessary to
prevent, or to identify any perpetrator of, an act of terrorism
against the United States; or
(2) disclosure of the protected information is necessary to
prevent a threat of imminent violence, significant bodily harm,
or death, including specified offenses against a minor (as
defined by section 111(7) of the Adam Walsh Child Protection
and Safety Act of 2006 (34 U.S.C. 20911(7))).
SEC. 4. LIMITS ON COMPELLED DISCLOSURE FROM COVERED SERVICE PROVIDERS.
(a) Conditions for Compelled Disclosure.--In any matter arising under
Federal law, a Federal entity may not compel a covered service provider
to provide testimony or any document consisting of any record,
information, or other communications stored by a covered provider on
behalf of a covered journalist, including testimony or any document
relating to a personal account of a covered journalist or a personal
technology device of a covered journalist, unless a court in the
judicial district in which the subpoena or other compulsory process is,
or will be, issued determines by a preponderance of the evidence that
there is a reasonable threat of imminent violence unless the testimony
or document is provided, and issues an order authorizing the Federal
entity to compel the disclosure of the testimony or document.
(b) Notice to Court.--A Federal entity seeking to compel the
provision of testimony or any document described in subsection (a)
shall inform the court that the testimony or document relates to a
covered journalist.
(c) Notice to Covered Journalist and Opportunity to Be Heard.--
(1) In general.--A court may authorize a Federal entity to
compel the provision of testimony or a document under this
section only after the Federal entity seeking the testimony or
document provides the covered journalist on behalf of whom the
testimony or document is stored pursuant to subsection (a)--
(A) notice of the subpoena or other compulsory
request for such testimony or document from the covered
service provider not later than the time at which such
subpoena or request is issued to the covered service
provider; and
(B) an opportunity to be heard before the court
before the time at which the provision of the testimony
or document is compelled.
(2) Exception to notice requirement.--
(A) In general.--Notice and an opportunity to be
heard under paragraph (1) may be delayed for not more
than 45 days if the court involved determines there is
clear and convincing evidence that such notice would
pose a clear and substantial threat to the integrity of
a criminal investigation, or would present an imminent
risk of death or serious bodily harm, including
specified offenses against a minor (as defined by
section 111(7) of the Adam Walsh Child Protection and
Safety Act of 2006 (34 U.S.C. 20911(7))).
(B) Extensions.--The 45-day period described in
subparagraph (A) may be extended by the court for
additional periods of not more than 45 days if the
court involved makes a new and independent
determination that there is clear and convincing
evidence that providing notice to the covered
journalist would pose a clear and substantial threat to
the integrity of a criminal investigation, or would
present an imminent risk of death or serious bodily
harm under current circumstances.
SEC. 5. LIMITATION ON CONTENT OF INFORMATION.
The content of any testimony, document, or protected information that
is compelled under sections 3 or 4 shall--
(1) not be overbroad, unreasonable, or oppressive, and as
appropriate, be limited to the purpose of verifying published
information or describing any surrounding circumstances
relevant to the accuracy of such published information; and
(2) be narrowly tailored in subject matter and period of time
covered so as to avoid compelling the production of peripheral,
nonessential, or speculative information.
SEC. 6. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to--
(1) apply to civil defamation, slander, or libel claims or
defenses under State law, regardless of whether or not such
claims or defenses, respectively, are raised in a State or
Federal court; or
(2) prevent the Federal Government from pursuing an
investigation of a covered journalist or organization that is--
(A) suspected of committing a crime;
(B) a witness to a crime unrelated to engaging in
journalism;
(C) suspected of being an agent of a foreign power,
as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801);
(D) an individual or organization designated under
Executive Order 13224 (50 U.S.C. 1701 note; relating to
blocking property and prohibiting transactions with
persons who commit, threaten to commit, or support
terrorism);
(E) a specially designated terrorist, as that term is
defined in section 595.311 of title 31, Code of Federal
Regulations (or any successor thereto); or
(F) a terrorist organization, as that term is defined
in section 212(a)(3)(B)(vi)(II) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).
Purpose and Summary
H.R. 4330, the ``Protect Reporters from Exploitative State
Spying Act'' or the ``PRESS Act,'' would create a qualified
federal statutory privilege that protects covered journalists
from being compelled by a federal entity (i.e., an entity or
employee of the judicial or executive branch of the federal
government with power to issue a subpoena or other compulsory
process) to reveal confidential sources and information. It
would provide a similar privilege for a covered service
provider (such as a telecommunications carrier, interactive
computer service, or remote computing service) from being
compelled by a federal entity to disclose testimony or
documents stored by the provider on behalf of a covered
journalist or relating to the covered journalist's personal
account or personal technology device. The measure also
contains exceptions to the covered journalist's privilege where
a court determines, by a preponderance of the evidence and
pursuant to notice and hearing requirements, that disclosure of
information is necessary to prevent or identify any perpetrator
of an act of terrorism or to prevent a threat of imminent
violence, significant bodily harm, or death. Similarly, the
bill allows a federal entity to overcome the privilege for a
covered service provider when a court determines, after the
federal entity seeking the information provides the affected
covered journalist with notice and an opportunity to be heard
in court, that there is a reasonable threat of imminent
violence, and the court issues an order authorizing the federal
entity to compel the disclosure. The bill contains a number of
other measures clarifying its scope and applicability. The
Committee concludes that this legislation is necessary to
ensure that the constitutional guarantees of press freedom and
freedom of speech are protected from unwarranted government
compulsion that threatens to chill the exercise of such rights.
Representatives Jamie Raskin, Ted Lieu, and John Yarmuth
introduced H.R. 4330 on July 1, 2021. A coalition of civil
liberties and journalists' organizations have endorsed H.R.
4330, including the American Civil Liberties Union, Demand
Progress, the Society of Professional Journalists, News Media
Alliance, National Association of Broadcasters, National Press
Photographers Association, Radio Television Digital News
Association, News Leaders Association, MPA--The Association of
Magazine Media, Project for Privacy and Surveillance
Accountability, Protect The 1st, and Reporters Committee for
Freedom of the Press.
Background and Need for the Legislation
A. CONSTITUTIONAL PROTECTIONS AND JOURNALIST SUBPOENAS
The First Amendment to the United States Constitution
provides, in relevant part, that ``Congress shall make no law .
. . abridging the freedom of speech, or of the press . . .
.''\1\ The Supreme Court, however, has interpreted the
Amendment's press freedom guarantee to exclude protection for a
journalist from a grand jury subpoena,\2\ although some circuit
courts have narrowly interpreted this precedent to allow for
some protections for reporters.\3\ When facing compulsory
process, members of the press have argued generally that they
can only obtain truthful information from sources if the
sources are assured that their identities will be protected--
analogizing this need to the need for attorney-client
privilege: ``forced disclosure of confidential or unpublished
sources and information will cause individuals to refuse to
talk to reporters, resulting in a `chilling effect' on the free
flow of information and the public's right to know.''\4\ In
addition, when asked to produce notes and other materials
inherent to the journalistic process, members of the press have
maintained that compulsory process in such circumstances is a
violation of their First Amendment right to free speech.\5\
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\1\U.S. Const. amdt. I.
\2\Branzburg v. Hayes, 408 U.S. 665 (1972).
\3\E.g., the Second Circuit found in The New York Times Co. v.
Gonzales a qualified reporters' privilege under the First Amendment.
The New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006).
\4\Introduction to the Reporter's Privilege Compendium, The
Reporters Comm. for Freedom of the Press, https://www.rcfp.org/
introduction-to-the-reporters-privilege-compendium/.
\5\Id.
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The Supreme Court has also held that neither the First
Amendment nor the Fourth Amendment--which prohibits
unreasonable searches and seizures by the government and
generally requires the government to obtain a warrant before
searching a person's property--prohibits the government from
obtaining a search warrant for evidence of a crime simply
because the owner or possessor of the place to be searched is
not reasonably suspected of criminal activity.\6\ Moreover, the
Court has held that preconditions for the issuance of a warrant
provide adequate safeguards to protect First Amendment
interests.\7\ Notably, the Court has also observed that the
``Fourth Amendment does not prevent or advise against
legislative or executive efforts to establish nonconstitutional
protections'' for individuals engaged in First Amendment-
protected activities.\8\
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\6\Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
\7\Id.
\8\Id. at 567.
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B. STATE PRESS SHIELD LAWS
While the Supreme Court has declined to interpret the First
and Fourth Amendments to provide the basis for a journalist's
privilege from compelled disclosure of sources and information,
most state legislatures and state courts have provided, to
varying degrees, such protection for journalists. In Branzburg
v. Hayes, the Supreme Court made it clear that states are
``within First Amendment limits, to fashion their own
standards.''\9\ Forty states and the District of Columbia have
enacted press shield laws, while others afford similar
privileges through their state constitutions and common
law.\10\ Only Hawaii and Wyoming provide no such privilege
either through statute or common law.\11\ These laws aim to
protect journalists from being compelled to disclose
information under certain circumstances.\12\ They vary in how
they define: (1) who is a journalist; (2) what unpublished
information or type of source is protected; and (3) what
exceptions are permitted.\13\
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\9\ 408 U.S. 665 (1972).
\10\ Introduction to the Reporter's Privilege Compendium, The
Reporters Comm. For Freedom of the Press, https://www.rcfp.org/
introduction-to-the-reporters-privilege-compendium/.
\11\ Id.
\12\ Reporter's Privilege Compendium, The Reporters Comm. For
Freedom of the Press, https://www.rcfp.org/reporters-privilege/.
\13\ Id.
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Press shield laws vary in how they define what it means to
be a journalist--some base their definition by function and
others by employment. For example, Alabama journalists are
protected if they work for newspapers or television stations,
but not magazines.\14\ Others, such as Colorado, broadly
protect ``newspersons''' and define them as individuals who
participate in the process of disseminating information to the
public.\15\ Meanwhile, other states do not expressly define who
is a ``journalist'' and would provide some measure of
protection so long as the individual is engaged in legitimate
journalistic efforts and protecting journalistic interests.\16\
Some state shield laws, such as Connecticut's, are broad enough
to cover independent contractors, agents, and student
journalists.\17\
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\14\ Jane E. Kirtley, Shield Laws, First Amend. Encyclopedia,
https://www.mtsu.edu/first-amendment/article/1241/shield-laws.
\15\ COLO. REV. STAT. ANN. Sections 24-72.5-101 to 24-72.5-106.
\16\ Me. Rev. Stat. Ann. tit. 16, Sec. 61.
\17\ Conn. Gen Stat Sec. 52-146t.
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The scope of information that is protected by state press
shield laws varies from state to state. For example, Kentucky
provides some protection for reporters from disclosing the
identity of a source and not the information provided by the
source, but only if the information is published or
broadcasted.\18\ Some states, such as North Dakota, do not
distinguish between confidential and non-confidential
information and sources.\19\ In California, the law only
explicitly protects against contempt sanctions, and the
California state courts have interpreted the law to provide
protections, including a four-part test to protect unpublished
information.\20\
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\18\ KY. REV. STAT. ANN. Sec. 421.100.
\19\ N.D. CENT. CODE Sec. 31-01-06.2
\20\ Reporter's Privilege guide: Alabama--Illinois, SPLC, Aug. 29,
2019, https://splc.org/2019/08/reporters-privilege-guide-1/
?_h=97ebff0e-4462-4d05-9a11-18d3ce11b089.
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Most states also allow for journalists' privileges to be
overcome if the material sought meets specific criteria,
including that the material is necessary and relevant; is not
available through less intrusive means; or concerns an
overriding public interest. The most common exceptions are
related to national security interests or libel actions. For
example, Pennsylvania's protection is absolute in civil cases,
but qualified in criminal or defamation cases.\21\
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\21\ 42 PA. CONS. STAT. ANN. Sec. 5942.
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C. DEPARTMENT OF JUSTICE (DOJ) INVESTIGATIONS OF PRESS LEAKS
Over the past several decades, Presidential
administrations have attempted to crack down on classified
leaks to media outlets. These efforts have been conducted by
both Republican and Democratic Presidents and have included
efforts to obtain journalists' records, illustrating the need
for stronger federal protections for journalists and their
sources. Indeed, one of the most important roles the free press
plays in a democracy is reporting on the making of government
policy, including allegations of wrongdoing or malfeasance.
This important form of journalism often depends on the
journalist's ability to protect the confidentiality of their
sources.
1. The George W. Bush Administration
In response to a 2005 New York Times article detailing the
National Security Agency's (NSA's) warrantless surveillance
program after the September 11, 2001 attacks,\22\ the Bush
Administration convened a special task force to hunt for the
sources of that article.\23\ Although the New York Times was
never notified of a subpoena, a former administration official
was later presented with his own phone records from
conversations with one of the article's authors during a grand
jury proceeding on a different matter regarding the latter's
sources.\24\ On January 21, 2009, a whistleblower and former
NSA analyst said that ``the Bush Administration targeted and
eavesdropped on the conversations of American
journalists,''\25\ and in 2008, then-Federal Bureau of
Investigation (FBI) Director Robert Mueller III apologized to
the New York Times and the Washington Post for the FBI's
improper acquisition of reporters' phone records in 2004,
although he did not disclose the investigative purpose for the
search.\26\
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\22\ Cora Currier, How The NSA Started Investigating The New York
Times' Warrantless Wiretapping Story, The Intercept, June 26, 2015.
\23\ Charlie Savage and Katie Benner, Trump Administration Secretly
Seized Phone Records of Times Reporters, N.Y. Times, June 2, 2021.
\24\ Philip Shenon, Leak Inquiry Said to Focus on Calls With Times,
N.Y. Times, Apr. 12, 2008.
\25\Ex-NSA analyst: Agency spied on news organizations, Reporters
Comm. For Free. of the Press, Jan. 22, 2009.
\26\F.B.I Says it Obtained Reporters' Phone Records, N.Y. Times,
Aug. 8, 2008.
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2. The Obama Administration
On May 13, 2013, it became public that the then-Deputy
Attorney General authorized broad subpoenas for the telephone
records of 20 members of the Associated Press (AP)\27\ in
relation to ``leaked information to the news organization about
a foiled plot involving the al-Qaeda affiliate in Yemen.''\28\
DOJ guidelines at the time required prosecutors ``to notify the
media organization in advance unless that would pose a
substantial threat to the integrity of the investigation.''\29\
The AP, however, was given no advance notice.\30\
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\27\Letter from The Reporters Committee for Freedom of the Press,
et al., to Eric Holder, Att'y Gen., Dep't of Justice and James M. Cole,
Dep. Att'y Gen., Dep't of Justice, May 14, 2013, available at: https://
www.rcfp.org/wp-content/uploads/imported/Media-coalition-letter-re-AP-
subpoena.pdf.
\28\ Ann E. Marimow, A rare peek into a Justice Department leak
probe, Wash. Post, May 19, 2013.
\29\ Carrie Johnson, Justice Department Secretly Obtains AP Phone
Records, NPR, May 14, 2013.
\30\ Charlie Savage, Holder Tightens Rules on Getting Reporters'
Data, N. Y. Times, Jul. 7, 2013.
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On May 19, 2013, the Washington Post ran a story detailing
DOJ's 2010 search of Fox News reporter James Rosen's e-
mails.\31\ Rosen had reported intelligence in June 2009 that
North Korea was likely to continue its nuclear tests--
information from a top-secret report leaked to him by
government advisor Stephen Jin-Woo Kim.\32\ In this case, DOJ
went a step further, and listed Rosen as a suspected co-
conspirator in violation of the Espionage Act. A judge found
probable cause--as required under the Privacy Protection Act--
and issued the search warrant for Rosen's e-mails.\33\
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\31\ Ann E. Marimow, A rare peek into a Justice Department leak
probe, Wash. Post, May 19, 2013.
\32\Id.; Kim pled guilty to disclosing national defense information
under Section 793(d) of the Espionage Act on February 7, 2014 and was
sentenced to 13 months in prison. (Josh Gerstein, Contractor pleads
guilty in leak case, Politico, Feb. 7, 2014.
\33\ Id.
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3. The Trump Administration
On May 7, 2021, the Washington Post reported that DOJ had
seized three Post reporters' phone records during 2020 and
attempted to obtain their emails.\34\ On May 20, 2021, CNN
disclosed that DOJ also sought journalist Barbara Starr's phone
and non-content email records in 2020.\35\ Attorneys for CNN
challenged the subpoena before agreeing to a deal on January
26, 2021, which included a ``limited set of e-mail logs.''\36\
DOJ's efforts included putting CNN's general counsel under a
gag order, prohibiting him from sharing details of the
government's efforts with anyone except the CNN President.\37\
On June 2, 2021, the New York Times reported that DOJ obtained
a court order to seize four of its reporters' phone
records.\38\
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\34\ Devlin Barrett, Trump Justice Department secretly obtained
Post reporters' phone records, Wash. Post, May 7, 2021.
\35\ Adam Goldman, Trump Justice Dept. Seized CNN Reporter's Email
and Phone Records, N. Y. Times, May 20, 2021.
\36\Katelyn Polantz and Evan Perez, Trump administration pursued
CNN reporter's records in months-long secret court battle, CNN, Jun. 9,
2021.
\37\Id. Rep. Nadler's NDO Fairness Act would address the abuse of
gag orders, by requiring a written determination from the court finding
a non-disclosure order necessary to prevent a substantially likely
adverse result; providing for strict scrutiny analysis to grant a gag
order request under 18 U.S.C. 2705(b); establishing a 30-day limit for
gag orders, with the opportunity for additional 30-day extensions;
requiring notice be given to the customer within 72 hours of the
expiration of the delay, including what information was disclosed; and
allow providers to contest gag orders in court. NDO Fairness Act, H.R.
7072, 117th Cong. (2022).
\38\Charlie Savage and Katie Benner, Trump Administration Secretly
Seized Phone Records of Times Reporters, N. Y. Times, June 2, 2021.
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4. The Biden Administration
The legal battle for reporters' emails continued throughout
the early months of the Biden Administration. CNN settled with
DOJ on January 26, 2021.\39\ DOJ also continued in its legal
battle with the New York Times well into the first quarter of
the year.\40\ On June 5, 2021, the Administration announced
that it would not seek journalists' records.\41\ On June 11,
2021, the DOJ Inspector General announced it is ``initiating a
review of DOJ's use of subpoenas and other legal authorities to
obtain communication records of Members of Congress and
affiliated persons, and the news media . . . The review will
examine the Department's compliance with applicable DOJ
policies and procedures, and whether any such uses, or the
investigations, were based upon improper considerations.''\42\
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\39\Katelyn Polantz and Evan Perez, Trump administration pursued
CNN reporter's records in months-long secret court battle, CNN, Jun. 9,
2021.
\40\Charlie Savage and Katie Benner, U.S. Waged Secret Legal Battle
to Obtain Emails of 4 Times Reporters, N. Y. Times, Jun. 9, 2021.
\41\Veronica Stracqualursi, Biden's Justice Department says it will
no longer seize reporters' records for leak investigations, CNN, Jun.
5, 2021.
\42\Statement of Michael E. Horowitz, U.S. Dep't of Justice
Inspector General, Press Release, Jun. 11, 2021.
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D. JAILING OF JOURNALISTS FOR REFUSALS TO DISCLOSE SOURCE IDENTITIES
Numerous journalists have received jail time or been
sentenced to home confinement for refusing to name sources over
the past several decades. For example, in 1990, Brian Karem, a
television reporter, was held in contempt of court and
sentenced to six months in jail for refusing to identify a
confidential source; he was only released after his source
released him from his promise to keep her identity
confidential.\43\ In 2004, Jim Taricani, an investigative
reporter, was sentenced to six months of home confinement for
refusing to reveal the identity of the person who gave him an
FBI tape showing a mayoral aide accepting a bribe.\44\ In 2005,
New York Times reporter Judith Miller was found in contempt of
court for refusing to cooperate in a grand jury investigation
related to the leak of Valerie Plame's identity and spent 85
days in jail until her informant gave her permission to reveal
his identity.\45\
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\43\Jailed Reporter Is Freed After Source Allows Name to Be Used,
Los Angeles Times July 11, 1990.
\44\Jonathan Finer, R.I. Reporter Sentenced To Home Confinement,
Wash. Post Dec. 10, 2004.
\45\Kathleen Ann Ruane, Journalists' Privilege: Overview of the Law
and Legislation in Recent Congresses, Congressional Research Service
(Jan. 19, 2011) (``CRS Report'').
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E. SUPPORT FOR A FEDERAL SHIELD LAW FROM FEDERAL AND STATE OFFICIALS
Several high ranking federal and state officials have
called for Congress to pass a federal shield law. For example,
in 2006 remarks about a reporter shield bill similar to H.R.
4330 that he introduced, then-Representative Mike Pence said,
``the Constitution of the United States reads in part that
Congress shall make no law abridging freedom of the press. This
freedom represents a bedrock of our democracy by ensuring the
free flow of information to the public. But, sadly, this
freedom is under attack. Over the last few years, more than a
dozen reporters have been issued subpoenas and questioned about
confidential sources. . . . . and I close with Daniel Webster's
missive that `the entire and absolute freedom of the press is
essential to the preservation of government on the basis of a
free constitution.'''\46\
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\46\152 Cong. Record. H887-H.878 (daily ed. Mar. 14, 2006)
(Statement of Congressman Pence).
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In June 2008, the Attorneys General of 41 states urged the
Senate to adopt a federal reporters' shield law, explaining how
the federal courts' division over the existence and scope of a
reporter's privilege was ``producing inconsistency and
uncertainty for reporters and the confidential sources upon
whom they rely.''\47\ In his second term, President Obama
called on Congress to pass a federal shield law to ``guard
against government overreach.''\48\ In May 2013, Attorney
General Eric Holder reaffirmed the Obama Administration's
support for a federal shield law.\49\
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\47\Letter from Attorneys Generals to Sens. Harry Reid and Mitch
McConnell (June 23, 2008). Published in S. Rep. No. 113-118 at 139
(2013).
\48\Brett LoGiurato, OBAMA: `I Am Troubled By The Possibility That
Leak Investigations May Chill Investigative Journalism', Bus. Insider,
May 23, 2013.
\49\Lauren Fox, AG Holder Supports a Shield Law for the Press, U.S.
News (May 15, 2013).
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Hearings
For the purposes of clause 3(c)(6)(A) of House Rule XIII,
the following hearing was used to develop H.R. 4330: On June
30, 2021, the Committee on the Judiciary held a hearing on
``Secrecy Orders and Prosecuting Leaks: Potential Legislative
Responses to Deter Prosecutorial Abuse of Power.'' The
witnesses were: (1) Mr. Tom Burt, Corporate Vice President,
Customer Security & Trust, Microsoft Corporation; (2) Ms. Eve
Burton, Executive Vice President & Chief Legal Officer, Hearst
Corporation; (3) Ms. Lynn Oberlander, Of Counsel, Ballard Spahr
LLP; and (4) Professor Jonathan Turley, J.B. and Maurice C.
Shapiro Professor of Public Interest Law, The George Washington
University Law School. The witnesses discussed instances where
federal prosecutors targeted persons, including journalists,
during leak investigations, as well as the related policy
problem of government demanding data from third-party
electronic communications providers while seeking gag orders to
accompany those demands. Professor Turley and Ms. Oberlander
testified in support of a federal reporters' shield law.
Committee Consideration
On April 5, 2022, the Committee met in open session and
ordered the bill, H.R. 4330, favorably reported with an
amendment in the nature of a substitute, by voice vote, a
quorum being present.
Committee Votes
No recorded votes occurred during the Committee's
consideration of H.R. 4330.
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of House Rule X, are incorporated in the descriptive portions
of this report.
Committee Estimate of Budgetary Effects
Pursuant to clause 3(d)(1) of House rule XIII, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(2) of House rule XIII and section
308(a) of the Congressional Budget Act of 1974, and pursuant to
clause (3)(c)(3) of House rule XIII and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received from the Director of Congressional Budget
Office a budgetary analysis and a cost estimate of this bill.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 4330 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H.R. 4330 would create a qualified federal
statutory privilege that protects covered journalists from
being compelled by a federal entity to reveal confidential
sources and information. The legislation also generally
prohibits a federal entity from compelling a covered service
provider to disclose testimony or documents consisting of any
record, information, or other communication stored by the
covered service provider on behalf of a covered journalist, as
well as testimony or documents relating to the covered
journalist's personal account or personal technology device
unless a court determines that there is a reasonable threat of
imminent violence and the court issues an order authorizing the
federal entity to compel the disclosure.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 4330
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(d),
9(e), or 9(f) of House rule XXI.
Section-by-Section Analysis
Sec. 1. Short Title. Section 1 sets forth the short title
as the ``Protect Reporters from Exploitative State Spying Act''
or the ``PRESS Act''.
Sec. 2. Definitions. Section 2 sets forth the definitions
for certain terms used in the Act.
Section 2(1) defines ``covered journalist'' as a person who
regularly gathers, prepares, collects, photographs, records,
writes, edits, reports, investigates, or publishes news or
information that concerns local, national, or international
events or other matters of public interest for dissemination to
the public.
Section 2(2) defines ``covered service provider'' as ``any
person that, by an electronic means, stores, processes, or
transmits information in order to provide a service to
customers of the person,'' which is further defined to
specifically include: a telecommunications carrier and a
provider of an information service (as such terms are defined
in section 3 of the Communications Act of 1934; a provider of
an interactive computer service and an information content
provider (as such terms are defined in section 230 of the
Communications Act of 1934); a provider of remote computing
service; and a provider of electronic communication service (as
defined in section 2711 of title 18, United States Code); and a
provider of electronic communication service (as defined in
section 2510 of title 18, United States Code) to the public.
Section 2(3) defines ``document'' to mean writings,
recordings, and photographs, as those terms are defined by
Federal Rule of Evidence 1001.
Section 2(4) defines ``Federal entity'' to mean an entity
or employee of the judicial or executive branch or an
administrative agency of the Federal Government with the power
to issue a subpoena or issue other compulsory process.
Section 2(5) defines ``journalism'' to mean the gathering,
preparing, collecting, photographing, recording, writing,
editing, reporting, investigating, or publishing news or
information that concerns local, national, or international
events or other matters of public interest for dissemination to
the public.
Section 2(6) defines ``personal account of a covered
journalist'' to mean an account with a covered service provider
used by a covered journalist that is not provided,
administered, or operated by the employer of the covered
journalist.
Section 2(7) defines ``personal technology device of a
covered journalist'' to mean a handheld communications device,
laptop computer, desktop computer, or other internet-connected
device used by a covered journalist that is not provided or
administered by the employer of the covered journalist.
Section 2(8) defines ``protected information'' as any
information identifying a source who provided information as
part of engaging in journalism, and any records, contents of a
communication, documents, or information that a covered
journalist obtained or created as part of engaging in
journalism.
Sec. 3. Limits on Compelled Disclosure from Covered
Journalists. Section 3 prohibits a federal entity from
compelling a covered journalist to disclose protected
information in any matter arising under federal law. Section 3
also provides two exceptions to this privilege. A federal
entity can compel such disclosure if a court in the judicial
district in which the subpoena or other compulsory process is,
or will be, issued determines by a preponderance of evidence
that disclosure of the protected information is necessary: (1)
to prevent, or to identify any perpetrator of, an act of
terrorism against the United States; or (2) to prevent a threat
of imminent violence, significant bodily harm, or death. This
section also provides that the court can make the determination
that one of these exceptions applies only after the court
provides notice and an opportunity to be heard to the covered
journalist.
Sec. 4. Limits on Compelled Disclosure from Covered Service
Providers. Section 4 generally provides a statutory privilege
for covered service providers from being compelled by a federal
entity to disclose information related to a covered journalist
and outlines an exception to this general protection.
Specifically, section 4(a) prohibits a federal entity from
compelling a covered service provider to provide testimony or
documents stored by the provider on behalf of a covered
journalist. Additionally, Section 4(a) contains an exception,
allowing a federal entity to defeat this privilege and compel
such information disclosure if (1) a court in the judicial
district in which the subpoena or other compulsory process is,
or will be, issued; (2) determines by a preponderance of the
evidence that there is a reasonable threat of imminent violence
absent the provision of the testimony or document that the
federal entity seeks; and (3) the court issues an order
authorizing the federal entity to compel the disclosure of the
testimony or document.
Section 4(b) requires a federal entity seeking to compel
the disclosure of testimony or any document described in
Section 4(a) to inform the court that its compulsory request to
a covered service provider relates to a covered journalist.
Section 4(c)(1) is a notice requirement, prohibiting a
court from authorizing a federal entity to compel disclosure
under section 4(a) unless the federal entity provides the
covered journalist who is a party to the transaction with a
covered service provider described in section 4(a): (1) notice
of the subpoena or other compulsory request by the time the
subpoena or request is issued to the covered service provider;
and (2) an opportunity for the covered journalist to be heard
before the court before the covered service provider can be
compelled to disclose the testimony or document.
Section 4(c)(2) provides an exception to the notice and
hearing requirements under 4(c)(1). Specifically, section
4(c)(2)(A) provides that the court may delay notice by up to 45
days if it determines that there is clear and convincing
evidence that such notice would pose a clear and substantial
threat to the integrity of a criminal investigation or would
present an imminent risk of death or serious bodily harm.
Section 4(c)(2)(B) provides that the court may extend the delay
period for additional periods of no more than 45 days if the
court makes a new and independent determination that there is
clear and convincing evidence that providing the covered
journalist notice would pose a clear and substantial threat to
the integrity of a criminal investigation or imminent risk of
death or serious bodily harm.
Sec. 5. Limitation on Content of Information. Section 5
provides that the content of any testimony, document, or
protected information that is compelled under sections 3 and 4
of the Act not be overbroad, unreasonable, or oppressive, and
as appropriate, be limited to the purpose of verifying
published information or describing any surrounding
circumstances relevant to the accuracy of such published
information; and be narrowly tailored in subject matter and
period of time covered so as to avoid compelling the production
of peripheral, nonessential, or speculative information.
Sec. 6. Rule Of Construction. Section 6 is a rule of
construction that provides that nothing in this Act shall be
construed to apply to civil defamation, slander, or libel
claims or defenses under State law or to prevent the Federal
Government from pursuing an investigation of a covered
journalist or organization that is suspected of committing a
crime; a witness to a crime unrelated to engaging in
journalism; suspected of being an agent of a foreign power, as
defined in section 101 of the Foreign Intelligence Surveillance
Act of 1978; an individual or organization designated under
Executive Order 13224 (relating to blocking property and
prohibiting transactions with persons who commit, threaten to
commit, or support terrorism); a specially designated
terrorist, as that term is defined in section 595.311 of title
31, Code of Federal Regulations (or any successor thereto); or
a terrorist organization, as that term is defined in section
212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act.
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