Free Flow of Information Act of 2009 - Prohibits a federal entity (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 other compulsory process), in any proceeding or in connection with any issue arising under federal law, from compelling a covered person to disclose protected information, unless a federal court in the jurisdiction where the compulsory process has been or would be issued determines, after providing notice and an opportunity for the covered person to be heard, that all reasonable alternative sources have been exhausted and that separate specified conditions have been met depending on whether the matter is a criminal investigation or prosecution.
Defines a "covered person" as a person (including a supervisor, employer, parent company, subsidiary, or affiliate of such person) who:
Excludes from the definition of covered person foreign powers and their agents, members or affiliates of foreign terrorist organizations, specially designated global terrorists, and other organizations and people who are reasonably likely to commit, attempt, or provide support for terrorism.
Defines "protected information" as:
Requires, in a criminal investigation or prosecution, a determination by the court that:
Requires, in matters other than criminal investigations or prosecutions, based on public information or information obtained from a source other than the covered person, that:
Exempts from such requirements:
Directs federal courts to give appropriate deference to a specific factual showing submitted by the head of any executive branch agency concerned.
Sets forth procedures with respect to information sought from electronic communications service providers.
Provides for judicial review, submissions under seal, and expedited appeals.
[Congressional Bills 111th Congress]
[From the U.S. Government Printing Office]
[S. 448 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 448
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 SENATE OF THE UNITED STATES
February 13, 2009
Mr. Specter (for himself, Mr. Schumer, Mr. Lugar, and Mr. Graham)
introduced the following bill; which was read twice and 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
2009''.
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, relating to protected information, unless a Federal 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 source other than
the covered person--
(i) there are reasonable grounds to believe
that a crime has occurred;
(ii) the testimony or document sought is
essential to the investigation or prosecution
or to the defense against the prosecution; and
(iii) in a criminal investigation or
prosecution of an unauthorized disclosure of
properly classified information by a person
with authorized access to such information,
such unauthorized disclosure has caused or will
cause significant and articulable harm to the
national security; or
(B) in a matter other than a criminal investigation
or prosecution, based on information obtained from a
source other than the covered person, the testimony or
document sought is essential to the resolution of the
matter; and
(3) 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. EXCEPTION RELATING TO CRIMINAL OR TORTIOUS CONDUCT.
(a) In General.--Section 2 shall not apply to any information,
record, document, or item obtained as the result of the eyewitness
observations of alleged criminal conduct or commitment of alleged
criminal or tortious conduct by the covered person, including any
physical evidence or visual or audio recording of the observed conduct.
(b) Exception.--This section shall not apply, and section 2 shall
apply, if the alleged criminal or tortious conduct is the act of
communicating the documents or information at issue.
SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, OR SUBSTANTIAL BODILY
INJURY.
Section 2 shall not apply to any protected information that is
reasonably necessary to stop, prevent, or mitigate a specific case of--
(1) death;
(2) kidnapping; or
(3) substantial bodily harm.
SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE NATIONAL
SECURITY.
Section 2 shall not apply to any protected information that a
Federal court has found by a preponderance of the evidence would assist
in preventing--
(1) an act of terrorism; or
(2) other significant and articulable harm to national
security that would outweigh the public interest in
newsgathering and maintaining a free flow of information to
citizens.
SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.
(a) Conditions for Compelled Disclosure.--With respect to testimony
that relates to a communication to which a covered person is a party or
any document that consists of any record or other information relating
to a communication to which a covered person is a party, or that
contains the contents of a communication to which a covered person is a
party, 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 Federal
court may compel the testimony or disclosure of a document described in
this section only after the party seeking such testimony or document
provides the covered person who is a party to the communication
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
compelling testimony or the disclosure of a document.
(c) Exception to Notice Requirement.--Notice under subsection
(b)(1) may be delayed for not more than 45 days 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. This
period may be extended by the court for an additional period of not
more than 45 days each time the court makes such a determination.
SEC. 7. 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 covered
person or communications service provider of--
(1) information identifying a source who provided
information without a promise or agreement of confidentiality
made by the covered person as part of engaging in journalism;
or
(2) records, other information, or contents of a
communication obtained without a promise or agreement that such
records, other information, or contents of a communication
would be confidential.
SEC. 8. 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 section 3 or 230 of the
Communications Act of 1934 (47 U.S.C. 153 and 230)).
(2) Covered person.--The term ``covered person''--
(A) means a person who is engaged in journalism;
(B) includes a supervisor, employer, parent
company, subsidiary, or affiliate of a person described
in subparagraph (A); and
(C) does not include any person who is--
(i) a foreign power or an agent of a
foreign power, as those terms are defined in
section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801);
(ii) a foreign terrorist organization
designated under section 219(a) of the
Immigration and Nationality Act (8 U.S.C.
1189(a));
(iii) designated as a Specially Designated
Global Terrorist by the Department of the
Treasury under Executive Order Number 13224 (50
U.S.C. 1701);
(iv) 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
(v) 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)).
(3) Document.--The term ``document'' means writings,
recordings, and photographs, as those terms are defined by rule
1001 of the Federal Rules of Evidence (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 regular
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.
(6) Protected information.--The term ``protected
information'' means--
(A) information identifying a source who provided
information under a promise or agreement of
confidentiality made by a covered person as part of
engaging in journalism; or
(B) any records, contents of a communication,
documents, or information that a covered person
obtained or created--
(i) as part of engaging in journalism; and
(ii) upon a promise or agreement that such
records, contents of a communication,
documents, or information would be
confidential.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S2340-2342)
Read twice and referred to the Committee on the Judiciary.
Committee on the Judiciary. Ordered to be reported with amendments favorably.
Committee on the Judiciary. Reported by Senator Leahy with an amendment in the nature of a substitute. Without written report.
Committee on the Judiciary. Reported by Senator Leahy with an amendment in the nature of a substitute. Without written report.
Placed on Senate Legislative Calendar under General Orders. Calendar No. 225.
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