Free Flow of Information Act of 2006 - Prohibits federal courts in criminal or civil proceedings from compelling journalists to disclose their confidential sources or information which they obtain in a professional newsgathering capacity. Allows exceptions if a court finds that: (1) alternative means of obtaining such confidential information have been exhausted and reasonable and timely notice of a demand for such information has been given; (2) subpoenas for such information are limited in scope; (3) such information is critical to pending criminal or civil litigation; and (4) nondisclosure of such information would be contrary to the public interest.
Denies journalists a privilege against disclosure of confidential information if such information: (1) was obtained by eyewitness observations of criminal conduct by a journalist or involvement of such journalist in criminal or tortious conduct; (2) is necessary to prevent death or substantial bodily harm; (3) is necessary to protect national security; and (4) was provided or obtained without a promise of confidentiality.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2831 Introduced in Senate (IS)]
109th CONGRESS
2d Session
S. 2831
To guarantee the free flow of information to the public through a free
and active press while protecting the right of the public to effective
law enforcement and the fair administration of justice.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 18, 2006
Mr. Lugar (for himself, Mr. Specter, Mr. Dodd, Mr. Graham, and Mr.
Schumer) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To guarantee the free flow of information to the public through a free
and active press while protecting the right of the public to effective
law enforcement and the fair administration of justice.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Flow of Information Act of
2006''.
SEC. 2. PURPOSE.
The purpose of this Act is to guarantee the free flow of
information to the public through a free and active press as the most
effective check upon Government abuse, while protecting the right of
the public to effective law enforcement and the fair administration of
justice.
SEC. 3. DEFINITIONS.
In this Act--
(1) the term ``attorney for the United States'' means the
Attorney General, any United States Attorney, Department of
Justice prosecutor, special prosecutor, or other officer or
employee of the United States in the executive branch of
Government or any independent regulatory agency with the
authority to obtain a subpoena or other compulsory process;
(2) the term ``communication service provider''--
(A) means any person that transmits information of
the customer's choosing by electronic means; and
(B) includes a telecommunications carrier, an
information service provider, an interactive computer
service provider, and an information content provider
(as such terms are defined in sections 3 and 230 of the
Communications Act of 1934 (47 U.S.C. 153 and 230));
and
(3) the term ``journalist'' means a person who, for
financial gain or livelihood, is engaged in gathering,
preparing, collecting, photographing, recording, writing,
editing, reporting, or publishing news or information as a
salaried employee of or independent contractor for a newspaper,
news journal, news agency, book publisher, press association,
wire service, radio or television station, network, magazine,
Internet news service, or other professional medium or agency
which has as 1 of its regular functions the processing and
researching of news or information intended for dissemination
to the public.
SEC. 4. COMPELLED DISCLOSURE AT THE REQUEST OF ATTORNEYS FOR THE UNITED
STATES IN CRIMINAL PROCEEDINGS.
(a) In General.--Except as provided in subsection (b), in any
criminal investigation or prosecution, a Federal court may not, upon
the request of an attorney for the United States, compel a journalist,
any person who employs or has an independent contract with a
journalist, or a communication service provider to disclose--
(1) information identifying a source who provided
information under a promise or agreement of confidentiality
made by the journalist while acting in a professional
newsgathering capacity; or
(2) any records, communication data, documents, or
information that the journalist obtained or created while
acting in a professional newsgathering capacity and upon a
promise or agreement that such records, communication data,
documents, or information would be confidential.
(b) Disclosure.--Compelled disclosures otherwise prohibited under
subsection (a) may be ordered only if a court, after providing the
journalist, or any person who employs or has an independent contract
with a journalist, notice and an opportunity to be heard, determines by
clear and convincing evidence that--
(1) the attorney for the United States has exhausted
alternative sources of the information;
(2) to the extent possible, the subpoena--
(A) avoids requiring production of a large volume
of unpublished material; and
(B) is limited to--
(i) the verification of published
information; and
(ii) surrounding circumstances relating to
the accuracy of the published information;
(3) the attorney for the United States has given reasonable
and timely notice of a demand for documents;
(4) nondisclosure of the information would be contrary to
the public interest, taking into account both the public
interest in compelling disclosure and the public interest in
newsgathering and maintaining a free flow of information to
citizens;
(5) there are reasonable grounds, based on an alternative,
independent source, to believe that a crime has occurred, and
that the information sought is critical to the investigation or
prosecution, particularly with respect to directly establishing
guilt or innocence; and
(6) the subpoena is not being used to obtain peripheral,
nonessential, or speculative information.
SEC. 5. COMPELLED DISCLOSURE AT THE REQUEST OF CRIMINAL DEFENDANTS.
(a) In General.--Except as provided in subsection (b), a Federal
court may not, upon the request of a criminal defendant, compel a
journalist, any person who employs or has an independent contract with
a journalist, or a communication service provider to disclose--
(1) information identifying a source who provided
information under a promise or agreement of confidentiality
made by the journalist while acting in a professional
newsgathering capacity; or
(2) any records, communication data, documents, or
information that the journalist obtained or created while
acting in a professional newsgathering capacity and under a
promise or agreement that such records, communication data,
documents, or information would be confidential.
(b) Disclosure.--Compelled disclosures otherwise prohibited under
subsection (a) may be ordered only if a court, after providing the
journalist, or any person who employs or has an independent contract
with a journalist, notice and an opportunity to be heard, determines by
clear and convincing evidence that--
(1) the criminal defendant has exhausted alternative
sources of the information;
(2) there are reasonable grounds, based on an alternative
source, to believe that the information sought is directly
relevant to the question of guilt or innocence or to a fact
that is critical to enhancement or mitigation of a sentence;
(3) the subpoena is not being used to obtain peripheral,
nonessential, or speculative information; and
(4) nondisclosure of the information would be contrary to
the public interest, taking into account the public interest in
compelling disclosure, the defendant's interest in a fair
trial, and the public interest in newsgathering and in
maintaining the free flow of information.
SEC. 6. CIVIL LITIGATION.
(a) In General.--Except as provided in subsection (b), in any civil
action, a Federal court may not compel a journalist, any person who
employs or has an independent contract with a journalist, or a
communication service provider to disclose--
(1) information identifying a source who provided
information under a promise or agreement of confidentiality
made by the journalist while acting in a professional
newsgathering capacity; or
(2) any records, communication data, documents, or
information that the journalist obtained or created while
acting in a professional newsgathering capacity and upon a
promise or agreement that such records, communication data,
documents, or information would be confidential.
(b) Disclosure.--Compelled disclosures otherwise prohibited under
(a) may be ordered only if a court, after providing the journalist, or
any person who employs or has an independent contract with a
journalist, notice and an opportunity to be heard, determines by clear
and convincing evidence that--
(1) the party seeking the information has exhausted
alternative sources of the information;
(2) the information sought is critical to the successful
completion of the civil action;
(3) nondisclosure of the information would be contrary to
the public interest, taking into account both the public
interest in compelling disclosure and the public interest in
newsgathering and in maintaining the free flow of information
to the widest possible degree about all matters that enter the
public sphere;
(4) the subpoena is not being used to obtain peripheral,
nonessential, or speculative information;
(5) to the extent possible, the subpoena--
(A) avoids requiring production of a large volume
of unpublished material; and
(B) is limited to--
(i) the verification of published
information; and
(ii) surrounding circumstances relating to
the accuracy of the published information; and
(6) the party seeking the information has given reasonable
and timely notice of the demand for documents.
SEC. 7. EXCEPTION FOR JOURNALIST'S EYEWITNESS OBSERVATIONS OR
PARTICIPATION IN CRIMINAL OR TORTIOUS CONDUCT.
Notwithstanding sections 1 through 6, a journalist, any person who
employs or has an independent contract with a journalist, or a
communication service provider has no privilege against disclosure of
any information, record, document, or item obtained as the result of
the eyewitness observations of criminal conduct or commitment of
criminal or tortious conduct by the journalist, including any physical
evidence or visual or audio recording of the observed conduct, if a
court determines by clear and convincing evidence that the party
seeking to compel disclosure under this section has exhausted
reasonable efforts to obtain the information from alternative sources.
This section does not apply if the alleged criminal or tortious conduct
is the act of communicating the documents or information at issue.
SEC. 8. EXCEPTION TO PREVENT DEATH OR SUBSTANTIAL BODILY INJURY.
Notwithstanding sections 1 through 6, a journalist, any person who
employs or has an independent contract with a journalist, or
communication service provider has no privilege against disclosure of
any information to the extent such information is reasonably necessary
to stop or prevent reasonably certain--
(1) death; or
(2) substantial bodily harm.
SEC. 9. EXCEPTION FOR NATIONAL SECURITY INTEREST.
(a) In General.--Notwithstanding sections 1 through 6, a
journalist, any person who employs or has an independent contract with
a journalist, or communication service provider has no privilege
against disclosure of any records, communication data, documents,
information, or items described in sections 4(a), 5(a), or 6(a) sought
by an attorney for the United States by subpoena, court order, or other
compulsory process, if a court has provided the journalist, or any
person who employs or has an independent contract with a journalist,
notice and an opportunity to be heard, and determined by clear and
convincing evidence, that--
(1) disclosure of information identifying the source is
necessary to prevent an act of terrorism or to prevent
significant and actual harm to the national security, and the
value of the information that would be disclosed clearly
outweighs the harm to the public interest and the free flow of
information that would be caused by compelling the disclosure;
or
(2) in a criminal investigation or prosecution of an
unauthorized disclosure of properly classified Government
information by an employee of the United States, such
unauthorized disclosure has seriously damaged the national
security, alternative sources of the information identifying
the source have been exhausted, and the harm caused by the
unauthorized disclosure of properly classified Government
information clearly outweighs the value to the public of the
disclosed information.
(b) Rule of Construction.--Nothing in this Act shall be construed
to limit any authority of the Government under the Foreign Intelligence
Surveillance Act (50 U.S.C. 1801 et seq.).
SEC. 10. JOURNALIST'S SOURCES AND WORK PRODUCT PRODUCED WITHOUT PROMISE
OR AGREEMENT OF CONFIDENTIALITY.
Nothing in this Act shall supersede, dilute, or preclude any law or
court decision compelling or not compelling disclosure by a journalist,
any person who employs or has an independent contract with a
journalist, or a communications service provider of--
(1) information identifying a source who provided
information without a promise or agreement of confidentiality
made by the journalist while acting in a professional
newsgathering capacity; or
(2) records, communication data, documents, or information
obtained without a promise or agreement that such records,
communication data, documents, or information would be
confidential.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S4800-4801)
Read twice and referred to the Committee on the Judiciary.
Committee on the Judiciary. Hearings held. Hearings printed: S.Hrg. 109-837.
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