[House Report 118-299]
[From the U.S. Government Publishing Office]


118th Congress     }                                    {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session       }                                    {      118-299

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



 
          PROTECT REPORTERS FROM EXPLOITATIVE STATE SPYING ACT

                                _______
                                

December 1, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 4250]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4250) 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 without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Committee Consideration..........................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Committee Estimate of Budgetary Effects..........................     9
Duplication of Federal Programs..................................     9
Performance Goals and Objectives.................................     9
Advisory on Earmarks.............................................     9
Federal Mandates Statement.......................................     9
Advisory Committee Statement.....................................     9
Applicability to Legislative Branch..............................    10
Section-by-Section Analysis......................................    10

                          Purpose and Summary

    H.R. 4250, the Protect Reporters from Exploitative State 
Spying Act, introduced by Rep. Kevin Kiley (R-CA), will 
prohibit the federal government from compelling journalists and 
providers of telecommunications services to provide information 
identifying a source or any other record obtained or created by 
journalists in the course of their work.

                Background and Need for the Legislation

    The First Amendment to the U.S. Constitution states that, 
``Congress shall make no law . . . abridging the freedom of 
speech, or of the press.''\1\ Courts have generally construed 
these rights broadly. During the formative era for the modern 
understanding of the First Amendment, the Supreme Court 
rejected restrictions on the publication of national security 
information obtained by reporters from government sources.\2\ 
As recognized by Justice Byron White, the press ``serves and 
was designed to serve as a powerful antidote to any abuse of 
power by governmental officials.''\3\
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    \1\U.S. Const. Amend. I.
    \2\See New York Times v. United States, 403 U.S. 713 (1971).
    \3\Miami Herald Pub. Co., Div. of Knight Newspapers, Inc. v. 
Tornillo, 418 U.S. 241, 260 (1974) (White, J. concurring).
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    Historically, the federal and state governments have 
clashed in court with the press over the compelled disclosure 
of confidential sources. In 1971, when the government prevented 
the New York Times and Washington Post from publishing 
classified material about the Vietnam War that would later 
become known as the Pentagon Papers, Justice Hugo Black argued 
``every moment's continuance of the injunctions against these 
newspapers amounts to a flagrant, indefensible, and continuing 
violation of the First Amendment . . . . [Enjoining the 
publishing of the news] would make a shambles of the First 
Amendment.''\4\ Justice Black further stated, ``Both the 
history and language of the First Amendment support the view 
that the press must be left free to publish news, whatever the 
source, without censorship, injunctions, or prior 
restraints.''\5\
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    \4\New York Times, at 715 (Black, J. concurring).
    \5\Id. at 717 (Black, J. concurring).
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    While the government now rarely seeks to enjoin the 
publication of certain information by the press, there are 
still areas where the First Amendment and the government come 
into conflict. In recent years, this friction has come not in 
the form of targeting newspapers that publish classified 
information, but in prosecutions of those who leak classified 
information to reporters. In these investigations, the 
government has sought to seize records and documents belonging 
to journalists and to compel testimony about their sources 
through both subpoenas and threats of imprisonment.\6\ In some 
cases, journalists' records are seized from third-party service 
providers, like phone and internet companies.\7\
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    \6\See, e.g., Charlie Savage, U.S. Gathered Personal Data on Times 
Reporter in Case Against Ex-C.I.A. Agency, N.Y. Times (Feb. 25, 2011); 
Adam Goldman, Nicholas Fandos, and Katie Benner, Ex-Senate Aide Charged 
in Leak Case Where Times Reporter's Records Were Seized, N.Y. Times 
(Jun. 7, 2018); Charlie Savage & Leslie Kaufman, Phone Records of 
Journalists Seized by U.S., N.Y. Times (May 13, 2013).
    \7\Louis Nelson, Jordan criticizes DOJ for seizing NYT reporter's 
materials in leak case, Politico (Jun. 21, 2018).
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    These actions are not limited to leaks of classified 
information. Beginning in late 2020, the Justice Department 
targeted Project Veritas over the group's possession of a diary 
reportedly belonging to President Biden's daughter.\8\ Despite 
never publishing the contents of the diary, investigative 
reporter James O'Keefe, the group's founder, had his home 
raided at dawn by the FBI in November 2021.\9\ In court 
filings, Project Veritas alleged that the Justice Department 
secretly seized its emails and placed a gag order on Microsoft, 
whose servers housed the group's emails.\10\
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    \8\The Editorial Board, The FBI's Raid on James O'Keefe, Wall 
Street Journal (Nov. 18, 2021) (``Attorney General Merrick Garland 
still refuses to retract the memo he sent last month instructing the 
Department of Justice to scrutinize parents protesting at local school 
board meetings. Now his department may have committed another civil-
liberties abuse with its raid on Project Veritas leader James 
O'Keefe.'').
    \9\Id.
    \10\Id.
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    Journalists argue that these actions have a chilling effect 
that disincentives whistleblowers and informants from coming 
forward with critical information.\11\ In turn, Americans may 
be prevented from learning information of a compelling public 
interest. In order to ensure that the government does not 
infringe on the First Amendment rights of journalists, many 
jurisdictions have adopted shield laws. Shield laws are 
designed to protect a reporter's privilege to refuse to 
disclose confidential sources to the government. At times, 
journalists rely on confidential sources to gather information 
vital to holding public and private institutions accountable. 
Any law that protects a reporter's privilege to refuse 
compulsory testimony or the disclosure of confidential 
information in court is colloquially referred to as a ``shield 
law.''
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    \11\See, e.g., Josh Gerstein, Leakers on the defensive, Politico 
(Jan. 13, 2015).
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                           STATE SHIELD LAWS

    While 32 states and D.C. have statutory shield laws and a 
total of 49 states have either statutory or common law 
reporter's privilege, there is no federal shield law.\12\ State 
shield laws serve the common purpose of protecting reporters 
from revealing sources and confidential information, but states 
vary in the degree of privilege afforded. For example, some 
states provide either absolute or qualified privilege depending 
on whether it is a civil or criminal proceeding.\13\ 
Additionally, state shield laws can also limit a reporter's 
privilege based on the definition of a journalist, whether the 
journalist is a party to the proceeding, and whether the 
confidential material is published or unpublished.\14\
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    \12\Alan Wehbe, The Free Press and National Security: Renewing the 
Case for a Federal Shield Law, 16 First Amend. L. Rev. 512 (2018).
    \13\Lucy Dalgish and Gregg P. Leslie, The First Amendment Handbook: 
7th Edition 23 (2011).
    \14\Statutory and common law protections; state shield laws, 
testimonial privileges, and the Privacy Protection Act, Reporters 
Committee for Freedom of the Press, https://www.rcfp.org/electronic-
communications-surveillance/legal-and-regulatory-protections-
journalists/b-statutory-and- (last visited July 13, 2018).
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    Many states enacted shield laws in response to the 1972 
Branzburg v. Hayes Supreme Court case, which found that 
requiring a reporter to appear before a grand jury to testify 
about his confidential sources did not violate the First 
Amendment. In that case, the government required a reporter 
named Paul Branzburg to testify about unnamed individuals who 
he had reported were making illegal drugs.\15\ The decision 
called on Congress to act, saying, ``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.''\16\
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    \15\Branzburg v. Hayes, 408 U.S. 665 (1972).
    \16\Id. at 706.
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                    ATTEMPTS AT A FEDERAL SHIELD LAW

    In response to public and congressional outrage over the 
compelled disclosure of journalists' records, the Department of 
Justice has altered its policies governing the use of certain 
investigatory tactics in cases involving the press. Most 
recently updated in July 2021, the Department committed to:

          no longer us[ing] compulsory legal process for the 
        purpose of obtaining information from or records of 
        members of the news media acting within the scope of 
        newsgathering activities. . . . This new prohibition 
        applies to compulsory legal process issued to reporters 
        directly, to their publishers or employers, and to 
        third-party service providers of any of the foregoing. 
        It extends to the full range of compulsory process 
        covered by the current regulations, specifically, 
        subpoenas, warrants, court orders issued pursuant to 18 
        U.S.C. Sec.  2703(d) and Sec.  3123, and civil 
        investigative demands. Further, it applies regardless 
        of whether the compulsory legal process seeks 
        testimony, physical documents, telephone toll records, 
        metadata, or digital content.\17\
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    \17\Memorandum for the Deputy Attorney General, the Associate 
Attorney General, Heads of Department Components, United States 
Attorneys, and Federal Prosecutors, from U.S. Attorney General Merrick 
Garland, Use of Compulsory Process to Obtain Information From, or 
Records of, Members of the News Media, U.S. Dep't of Justice (July 19, 
2021), https://www.justice.gov/ag/page/file/1413001/download.

    The policy provides exceptions for investigations into 
reporters who are engaged in criminal activity outside the 
scope of their journalistic activity, such as insider 
trading.\18\ It also does not apply to a journalist who has 
used criminal methods, such as breaking and entering or 
hacking, to obtain government information.\19\ Regarding 
classified information, the new policy states:
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    \18\Id.
    \19\Id.

          The prohibition does apply when a member of the news 
        media has, in the course of newsgathering, only 
        possessed or published government information, 
        including classified information. This does not, 
        however, affect the Department's traditional ability to 
        use compulsory legal process to obtain information from 
        or records of, for example, a government employee 
        (rather than a member of the news media) who has 
        unlawfully disclosed government information.\20\
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    \20\Id.

    Despite these changes to Justice Department policy, 
legislation to establish a federal shield law has been and 
continues to be introduced in various sessions of Congress. In 
the 109th Congress in 2005, then-Rep. Mike Pence (R-IN) 
introduced the Free Flow of Information Act in response to New 
York Times reporter Judith Miller being jailed for refusing to 
name the confidential source who revealed Valerie Plame's 
covert identity.\21\ In 2007, the legislation overwhelmingly 
passed the House, but failed in the Senate due in part to 
opposition from the Bush Administration that the bill would 
``jeopardize national security'' by creating ``roadblocks'' 
that would ``delay the collection of critical information and 
ensure that criminals have opportunities to avoid 
detection.''\22\
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    \21\Free Flow of Information Act, H.R. 581, 109th Cong. (2005); 
Bree Nordenson, The Shield Bearer: How a Conservative Congressman from 
Indiana Became Journalism's Best Ally in the Fight to Protect Anonymous 
Sources, Columbia Journalism Rev. (Jun. 2007); See also, Reporter 
Jailed After Refusing to Name Source, N.Y. Times (Jul. 7, 2005).
    \22\Scott Wong, Key Conservative Presses for Shield Law After 
Seizure of NYT Reporter's Records, THE HILL (Jun. 15, 2018); See also, 
Alan Wehbe, The Free Press and National Security: Renewing the Case for 
a Federal Shield Law, 16 First Amend. L. Rev. 512 (2018); See also, 
Administration Launches Web Site Opposing Journalist Media Shield, Fox 
News (Apr. 3, 2008).
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    In the 113th Congress, then-Rep. Ted Poe (R-TX) introduced 
similar legislation in the aftermath of the revelation that the 
Obama Administration had secretly seized phone records from the 
Associated Press.\23\ The Senate companion, S. 987, was 
introduced by Senator Chuck Schumer (D-NY) and reported 
favorably out of the Senate Judiciary Committee. However, no 
further action was taken on either bill in the 113th Congress. 
Critics argued the bill's definition of ``journalist'' was too 
narrow and that the bill did not provide strong enough 
protections for journalists.\24\
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    \23\Free Flow of Information Act of 2013, S. 987, 113th Cong. 
(2013); Reuters Staff, U.S. Senate Judiciary Committee passes media 
shield law, Reuters (Sept. 12, 2013).
    \24\Reuters Staff, U.S. Senate Judiciary Committee passes media 
shield law, Reuters (Sept. 12, 2013); See also, Editorial Board, A 
shield law is necessary to protect U.S. journalists, The Wash. Post 
(Sept. 22, 2013).
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    In the 115th Congress, Rep. Jamie Raskin (D-MD) introduced 
H.R. 4382, the Free Flow of Information Act, with Rep. Jim 
Jordan (R-OH). Nearly identical to the iteration from the 109th 
Congress, the legislation conditioned the federally compelled 
disclosure of information by members of the news media. In July 
2018, Rep. Jordan, then-Chairman of the Committee on Oversight 
and Government Reform's Subcommittee on Healthcare, Benefits, 
and Administrative Rules, held a hearing entitled, ``Shielding 
Sources: Safeguarding the Public's Right to Know,'' at which 
the investigative correspondent Sharyl Attkisson testified 
about the challenges that reporters face in maintaining the 
confidentiality of their sources.\25\
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    \25\Shielding Sources: Safeguarding the Public's Right to Know: 
Hearing Before the H. Comm. on Oversight & Gov't Reform, 115th Cong. 
(2018) (statement of Sharyl Attkisson).
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    In the 117th Congress, Rep. Raskin introduced H.R. 4330, 
the Protect Reporters from Exploitative State Spying Act or 
PRESS Act.\26\ On April 5, 2022, the Judiciary Committee 
considered the bill during a business meeting and reported it 
favorably to the House floor by voice vote. On September 19, 
2022, the PRESS Act passed the House under suspension of the 
rules by voice vote. However, the Senate did not take up the 
PRESS Act before the end of the Congress. The current version 
of the PRESS Act, sponsored by Rep. Kiley (R-CA), is identical 
to the version introduced in the 117th Congress.
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    \26\H.R. 4330, 117th Cong. (2021).
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    The PRESS Act prohibits the federal government from 
compelling a journalist to disclose protected information 
except in certain limited circumstances, such as in cases 
involving terrorism or to prevent a threat of imminent violence 
or significant bodily harm. The bill similarly prohibits the 
federal government from seizing a journalist's records from a 
third-party service provider except in similar circumstances. 
In the event that these exceptions apply, the government's 
demands must be narrowly tailored and not overbroad or 
unreasonable.

                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, 
the Committee states that no hearings were held to assist in 
the formulation of H.R. 4250.

                        Committee Consideration

    On July 19, 2023, the Committee met in open session and 
ordered the bill, H.R. 4250, favorably reported by a roll call 
vote of 23 to 0, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, the 
following roll call votes occurred during the Committee's 
consideration of H.R. 4250:
    1. Vote on favorably reporting H.R. 4250--passed 23 ayes to 
0 nays.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      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 rule X of the Rules of the House of Representatives, are 
incorporated in the descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives does not apply where a cost estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974 has been timely submitted prior to filing of the report 
and is included in the report. Such a cost estimate is included 
in this report.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the enclosed cost estimate for H.R. 4250 from the 
Director of the Congressional Budget Office:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 4250 would exempt journalists and third-party service 
providers, such as telecommunications carriers and Internet 
service providers, from being compelled to identify a source or 
disclose other information that was gathered or created as part 
of newsgathering activities unless such information is 
necessary to prevent an act of terrorism or a threat of 
imminent violence. Federal courts would make that determination 
based on the preponderance of the evidence after the journalist 
or service provider has had notice and an opportunity to 
respond.
    For matters related to federal cases, the Department of 
Justice (DOJ) typically files subpoena requests that seek 
information from journalists. Under existing regulations, 
federal prosecutors may request a subpoena of a journalist or a 
third-party service provider only in limited circumstances 
after an internal review. According to DOJ, only a small number 
of subpoenas seeking information from journalists are approved 
each year.
    Based on information from DOJ, CBO expects that H.R. 4250 
would apply to more people than the existing regulations. 
However, CBO estimates that the increase in the number of 
subpoenas subject to the bill's requirements would be small. In 
addition, CBO expects that the bill's preponderance of evidence 
standard would increase the amount of work required by federal 
prosecutors to obtain those subpoenas. In total, CBO estimates 
that implementing H.R. 4250 would cost less than $500,000 over 
the 2024-2028 period. Such spending would be subject to the 
availability of appropriated funds.
    The CBO staff contact for this estimate is Jeremy Crimm. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Director of Budget Analysis.

                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

                Committee Estimate of Budgetary Effects

    With respect to the requirements of clause 3(d)(1) of rule 
XIII of the Rules of the House of Representatives, 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.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 4250 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. 4250 will prohibit the federal government 
from compelling journalists and providers of telecommunications 
services to provide information identifying a source or any 
other record obtained or created by journalists in the course 
of their work.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 4250 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clauses 
9(d), 9(e), or 9(f) of House Rule XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).

                      Section-by-Section Analysis

    Section. 1. Short Title. The ``Protect Reporters from 
Exploitative State Spying Act'' or the ``PRESS Act.''
    Section. 2. Definitions. This section defines ``covered 
journalist,'' ``covered service provider,'' ``document,'' 
``federal entity,'' ``journalism,'' ``personal account of a 
covered journalist,'' ``personal technology device of a covered 
journalist,'' and ``protected information,'' and ``specified 
offense against a minor.''
    Section. 3. Limits on Compelled Disclosure from Covered 
Journalists. This section prohibits the federal government from 
compelling a journalist to disclose protected information, 
unless a court determines by a preponderance of the evidence 
that: (1) disclosure is necessary to prevent, or identify a 
perpetrator of, an act of terrorism; or (2) disclosure is 
necessary to prevent a threat of imminent violence, significant 
bodily harm, death, or specified offenses against a minor, such 
as kidnapping.
    Section. 4. Limits on Compelled Disclosure from Covered 
Service Providers. This section prohibits the federal 
government from compelling service providers--such as phone and 
internet companies--from providing any information relating to 
a journalist, unless a court determines by a preponderance of 
the evidence that there is a reasonable threat of imminent 
violence if the information is not provided. The federal 
government would be required to notify the court that the 
information being sought belongs to a journalist and the court 
would be required to provide the journalist notice of the 
subpoena and an opportunity to be heard, unless the court 
determines there is clear and convincing evidence that such 
notice would provide 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.
    Section. 5. Limitation on Content of Information. This 
section requires that the content of any compelled information 
is not to be overbroad, unreasonable, or oppressive, and must 
be narrowly tailored in subject matter and duration.
    Section. 6. Rule of Construction. This section prohibits 
the Act from being construed to: (1) apply to civil defamation, 
slander, or libel claims; or (2) prevent the federal government 
from investigating a journalist or organization that is 
suspected of committing a crime, witness to a crime unrelated 
to journalism, suspected of being an agent of a foreign power, 
a specifically designated terrorist, and other such activities.

                                  [all]