[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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\4\New York Times, at 715 (Black, J. concurring).
\5\Id. at 717 (Black, J. concurring).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.''
---------------------------------------------------------------------------
\11\See, e.g., Josh Gerstein, Leakers on the defensive, Politico
(Jan. 13, 2015).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\15\Branzburg v. Hayes, 408 U.S. 665 (1972).
\16\Id. at 706.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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:
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\26\H.R. 4330, 117th Cong. (2021).
---------------------------------------------------------------------------
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]