[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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