Free Flow of Information Act of 2007 - (Sec. 2) Prohibits a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government), in any matter arising under federal law, from compelling a covered person to testify or produce any document unless a court makes specified determinations by a preponderance of the evidence, including determinations: (1) relating to exhaustion of alternative sources, (2) that the testimony or document sought is critical; (3) that disclosure of the information source's identity is necessary; and (4) that the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Allows a court, in making the last of those determinations, to consider the extent of any harm to national security.
Defines "covered person" as a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals.
Requires the content of compelled testimony or documents to be limited and narrowly tailored.
Prohibits construing this Act as applying to civil defamation, slander, or libel claims or defenses under state law.
Exempts certain criminal or tortious conduct.
(Sec. 3) Applies this Act to communications service providers with regard to testimony or any record, information, or other communication that relates to a business transaction between such providers and covered persons. Sets forth notice requirements. Permits a court to delay notice to a covered person upon determining that such notice would pose a substantial threat to the integrity of a criminal investigation.
[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2102 Introduced in House (IH)]
110th CONGRESS
1st Session
H. R. 2102
To maintain the free flow of information to the public by providing
conditions for the federally compelled disclosure of information by
certain persons connected with the news media.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 2, 2007
Mr. Boucher (for himself, Mr. Pence, Mr. Conyers, Mr. Coble, Mr.
Yarmuth, and Mr. Walden of Oregon) introduced the following bill; which
was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To maintain the free flow of information to the public by providing
conditions for the federally compelled disclosure of information by
certain persons connected with the news media.
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
2007''.
SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.
(a) Conditions for Compelled Disclosure.--In any proceeding or in
connection with any issue arising under Federal law, a Federal entity
may not compel a covered person to provide testimony or produce any
document related to information possessed by such covered person as
part of engaging in journalism, unless a court determines by a
preponderance of the evidence, after providing notice and an
opportunity to be heard to such covered person--
(1) that the party seeking to compel production of such
testimony or document has exhausted all reasonable alternative
sources (other than a covered person) of the testimony or
document;
(2) that--
(A) in a criminal investigation or prosecution,
based on information obtained from a person other than
the covered person--
(i) there are reasonable grounds to believe
that a crime has occurred; and
(ii) the testimony or document sought is
essential to the investigation or prosecution
or to the defense against the prosecution; or
(B) in a matter other than a criminal investigation
or prosecution, based on information obtained from a
person other than the covered person, the testimony or
document sought is essential to the successful
completion of the matter;
(3) in the case that the testimony or document sought could
reveal the identity of a source of information or include any
information that could reasonably be expected to lead to the
discovery of the identity of such a source, that--
(A) disclosure of the identity of such a source is
necessary to prevent imminent and actual harm to
national security with the objective to prevent such
harm;
(B) disclosure of the identity of such a source is
necessary to prevent imminent death or significant
bodily harm with the objective to prevent such death or
harm, respectively; or
(C) disclosure of the identity of such a source is
necessary to identify a person who has disclosed--
(i) a trade secret of significant value in
violation of a State or Federal law;
(ii) individually identifiable health
information, as such term is defined in section
1171(6) of the Social Security Act (42 U.S.C.
1320d(6)), in violation of Federal law; or
(iii) nonpublic personal information, as
such term is defined in section 509(4) of the
Gramm-Leach-Bliley Act (15 U.S.C. 6809(4)), of
any consumer in violation of Federal law; and
(4) that 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
gathering news and maintaining the free flow of information.
(b) Limitations on Content of Information.--The content of any
testimony or document that is compelled under subsection (a) shall, to
the extent possible--
(1) 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 production of
peripheral, nonessential, or speculative information.
SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.
(a) Conditions for Compelled Disclosure.--With respect to testimony
or any document consisting of any record, information, or other
communication that relates to a business transaction between a
communications service provider and a covered person, section 2 shall
apply to such testimony or document if sought from the communications
service provider in the same manner that such section applies to any
testimony or document sought from a covered person.
(b) Notice and Opportunity Provided to Covered Persons.--A court
may compel the testimony or disclosure of a document under this section
only after the party seeking such a document provides the covered
person who is a party to the business transaction described in
subsection (a)--
(1) notice of the subpoena or other compulsory request for
such testimony or disclosure from the communications service
provider not later than the time at which such subpoena or
request is issued to the communications service provider; and
(2) an opportunity to be heard before the court before the
time at which the testimony or disclosure is compelled.
(c) Exception to Notice Requirement.--Notice under subsection
(b)(1) may be delayed only if the court involved determines by clear
and convincing evidence that such notice would pose a substantial
threat to the integrity of a criminal investigation.
SEC. 4. DEFINITIONS.
In this Act:
(1) Communications service provider.--The term
``communications 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, 230)).
(2) Covered person.--The term ``covered person'' means a
person engaged in journalism and includes a supervisor,
employer, parent, subsidiary, or affiliate of such covered
person.
(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 the
gathering, preparing, collecting, photographing, recording,
writing, editing, reporting, or publishing of news or
information that concerns local, national, or international
events or other matters of public interest for dissemination to
the public.
<all>
Ordered to be Reported (Amended) by Voice Vote.
Reported (Amended) by the Committee on Judiciary. H. Rept. 110-370.
Reported (Amended) by the Committee on Judiciary. H. Rept. 110-370.
Placed on the Union Calendar, Calendar No. 229.
Rules Committee Resolution H. Res. 742 Reported to House. Rule provides for consideration of H.R. 2102 with 1 hour of general debate. Previous question shall be considered as ordered without intervening motions except motion to recommit with or without instructions. Measure will be considered read. A specified amendment is in order. All points of order against consideration of the bill are waived except those arising under clause 9 or 10 of rule XXI. The amendment in the nature of a substitute recommended by the Committee on the Judiciary now printed in the bill shall be considered as adopted.
Rule H. Res. 742 passed House.
Considered under the provisions of rule H. Res. 742. (consideration: CR H11587-11603; text of measure as introduced: CR H11587-11588; text of measure as reported in House: CR H11588-11589)
Rule provides for consideration of H.R. 2102 with 1 hour of general debate. Previous question shall be considered as ordered without intervening motions except motion to recommit with or without instructions. Measure will be considered read. A specified amendment is in order. All points of order against consideration of the bill are waived except those arising under clause 9 or 10 of rule XXI. The amendment in the nature of a substitute recommended by the Committee on the Judiciary now printed in the bill shall be considered as adopted.
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DEBATE - The House proceeded with one hour of debate on H.R. 2102.
DEBATE - Pursuant to the provisions of H.Res. 742, the House proceeded with 10 minutes of debate on the Boucher amendment.
The previous question was ordered pursuant to the rule. (consideration: CR H11601)
Mr. Smith (TX) moved to recommit with instructions to Judiciary.
DEBATE - The House proceeded with 10 minutes of debate on the Smith (TX) motion to recommit with instructions. The instructions contained in the motion seek to report the bill back to the House with an amendment regarding authority to consider national security interest.
The previous question on the motion to recommit with instructions was ordered without objection. (consideration: CR H11601-11602; text: CR H11601)
On motion to recommit with instructions Agreed to by the Yeas and Nays: 388 - 33 (Roll no. 972). (text: CR H11601)
Roll Call #972 (House)Passed/agreed to in House: On passage Passed by recorded vote: 398 - 21 (Roll no. 973).
Roll Call #973 (House)On passage Passed by recorded vote: 398 - 21 (Roll no. 973).
Roll Call #973 (House)Motion to reconsider laid on the table Agreed to without objection.
Received in the Senate. Read the first time. Placed on Senate Legislative Calendar under Read the First Time.
Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 428.