Free Flow of Information Act of 2013 - (Sec. 2) 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 journalist to disclose protected information, unless a U.S. judge in the jurisdiction where the compulsory process has been or would be issued determines, after providing notice and an opportunity for the journalist 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. (Thus, establishes a qualified privilege for journalists to withhold confidential information unless a judge makes a determination to compel disclosure under conditions that apply differently in criminal and civil matters.)
Defines a "covered journalist" as a person who:
Provides for supervisors, editors, employers, parent companies, subsidiaries, or affiliates of such persons to be treated as covered journalists.
Authorizes a U.S. judge to provide the protections of this Act to a person who does not meet the definition of a covered journalist if such protections would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities.
Excludes from the definition of a "covered journalist": (1) any person or entity whose principal function is to publish primary source documents that have been disclosed to such person or entity without authorization; and (2) specified foreign powers or agents of foreign powers, members or affiliates of foreign terrorist organizations, specially designated global terrorists, and other terrorist organizations or people reasonably likely to commit, attempt, or provide support for terrorism.
Defines "protected information" as:
Requires, as a prerequisite for compelled disclosure in a criminal investigation or prosecution, a determination by the judge that:
Requires, in matters other than criminal investigations or prosecutions, based on public information or information obtained from a source other than the covered journalist, a determination by the judge that:
Prohibits such compelled disclosure conditions from precluding: (1) warrant requirements for certain communications under the Electronic Communications Privacy Act, or (2) search and seizure procedures set forth in the Federal Rules of Criminal Procedure.
(Sec. 3) Provides an exception from such judicial determination requirements, and thereby makes the qualified privilege inapplicable, for compelled disclosures of information or items obtained as the result of the eyewitness observations of, or obtained during the course of, alleged criminal conduct by the covered journalist , including any physical evidence or visual or audio recording of the conduct.
Prohibits such exception from applying, and instead requires the appropriate judicial determinations for compelled disclosure, subject to other specified exceptions, if the alleged criminal conduct is the act of communicating the documents or information at issue (thereby preempting certain provisions of Privacy Protection Act of 1980 relating to the seizure of materials when there is probable cause to believe that a member of the media has committed a crime by receiving, possessing, or communicating national defense or classified information).
(Sec. 4) Provides an additional exception from judicial determination requirements, and thereby makes the qualified privilege inapplicable, for compelled disclosures of protected information that is reasonably necessary to stop, prevent, or mitigate a specific case of death, kidnapping, substantial bodily harm, certain offenses against minors, or the incapacitation or destruction of critical infrastructure.
(Sec. 5) Sets forth a separate framework of judicial findings for a court to make under a preponderance of the evidence standard to compel disclosure of protected information sought by the federal government in criminal investigations or prosecutions involving an act of terrorism or other acts that have caused, or are reasonably likely to cause, significant and articulable harm to national security, including a standard designated specifically for matters involving an alleged unlawful disclosure of properly classified information.
Directs federal courts, in determining what constitutes harm to national security, to give appropriate deference to a specific factual showing submitted by the head of any executive branch agency concerned.
Prohibits such compelled disclosure based solely on the potential for a subsequent unlawful disclosure by the source sought to be identified without any showing of additional facts beyond such potential disclosure.
(Sec. 6) Requires the compelled disclosure standards and exemptions under this Act to apply in the same manner when information from the account of a person known to be, or reasonably likely to be, a covered journalist is sought from a covered service provider. Provides an exception from certain compelled disclosure requirements with respect to service providers when the Federal Bureau of Investigation (FBI) requests telephone toll and electronic communications transactional records for counterintelligence purposes, thereby enabling such disclosure to be compelled without reasonable grounds to believe that a crime has occurred and without a certification from the Attorney General.
Defines "covered service provider" as:
Requires a covered journalist to be given notice, and an opportunity to be heard, before a judge may compel disclosure from such service providers.
Permits notice requirements to be delayed if the judge determines by clear and convincing evidence that such notice would: (1) pose a clear and substantial threat to the integrity of a criminal investigation, (2) risk grave harm to national security, or (3) present an imminent risk of death or serious bodily harm.
Specifies that a substantial threat to the integrity of a criminal investigation exists when the target of the investigation may learn of the investigation and destroy evidence if notice is provided.
Allows the court to extend the delay of notice under specified circumstances.
(Sec. 7) Prohibits this Act from superseding, diluting, or precluding any law or court decision addressing compelled disclosure by a covered journalist or service provider of: (1) information identifying a source who provided information without a promise or agreement of confidentiality made by the covered journalist as part of engaging in journalism; or (2) records, other information, or contents of a communication obtained without a promise or agreement of confidentiality.
(Sec. 8) Allows a judge to: (1) receive and consider submissions from the parties in camera or under seal and, if necessary, ex parte; and (2) find a journalist to be in civil or criminal contempt for a failure to comply with an order compelling disclosure of protected information.
Requires courts of appeal to provide an expedited appeal process.
(Sec. 9) Prohibits this Act from being construed to: (1) preempt any law or claim relating to defamation, slander, or libel; (2) modify privacy requirements relating to a federal agency's disclosure of records pertaining to individuals; (3) modify certain grand jury secrecy rules; (4) create new obligations or affect the authorities of federal entities with respect to the acquisition or dissemination of information under the Foreign Intelligence Surveillance Act of 1978 (FISA); or (5) preclude voluntary disclosure of information to a federal entity in a situation not governed by this Act.
(Sec. 10) Directs the DOJ Inspector General to conduct an audit of the use of this Act through December 31, 2016, and to report to Congress regarding its examination of: (1) each instance in which a court failed to compel the disclosure of protected information, and (2) whether any procedural impediments have had a detrimental operational impact on the activities of the FBI. Permits the Attorney General and the Director of National Intelligence (DNI) to provide comments to be included in such report.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 987 Introduced in Senate (IS)]
113th CONGRESS
1st Session
S. 987
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
May 16, 2013
Mr. Schumer (for himself 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
2013''.
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 comply with a subpoena, court order,
or other compulsory legal process seeking to compel the disclosure of
protected information, unless a Federal court in the jurisdiction where
the subpoena, court order, or other compulsory legal process has been
or would be issued determines, after providing notice and an
opportunity to be heard to such covered person--
(1) that the party seeking to compel disclosure of the
protected information has exhausted all reasonable alternative
sources (other than a covered person) of the protected
information; and
(2) that--
(A) in a criminal investigation or prosecution--
(i) if the party seeking to compel
disclosure is the Federal Government, based on
public information or information obtained from
a source other than the covered person, there
are reasonable grounds to believe that a crime
has occurred;
(ii) based on public information or
information obtained from a source other than
the covered person, there are reasonable
grounds to believe that the protected
information sought is essential to the
investigation or prosecution or to the defense
against the prosecution;
(iii) the Attorney General certifies that
the decision to request compelled disclosure
was made in a manner consistent with section
50.10 of title 28, Code of Federal Regulations,
if compelled disclosure is sought by a member
of the Department of Justice in circumstances
governed by section 50.10 of title 28, Code of
Federal Regulations; and
(iv) the covered person has not established
by clear and convincing evidence that
disclosure of the protected information would
be contrary to the public interest, taking into
account both the public interest in gathering
and disseminating the information or news at
issue and maintaining the free flow of
information and the public interest in
compelling disclosure (including the extent of
any harm to national security); or
(B) in a matter other than a criminal investigation
or prosecution, based on public information or
information obtained from a source other than the
covered person--
(i) the protected information sought is
essential to the resolution of the matter; and
(ii) the party seeking to compel disclosure
of the protected information has established
that the interest in compelling disclosure
clearly outweighs the public interest in
gathering and disseminating the information or
news at issue and maintaining the free flow of
information.
(b) Limitations on Content of Information.--A subpoena, court
order, or other compulsory legal process seeking to compel the
disclosure of protected information under subsection (a) shall, to the
extent possible, be narrowly tailored in purpose, subject matter, and
period of time covered so as to avoid compelling disclosure of
peripheral, nonessential, or speculative information.
SEC. 3. EXCEPTION RELATING TO CRIMINAL 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, or obtained during the course of, alleged criminal
conduct by the covered person, including any physical evidence or
visual or audio recording of the conduct.
(b) Exception.--This section shall not apply, and, subject to
sections 4 and 5, section 2 shall apply, if the alleged criminal
conduct is the act of communicating the documents or information at
issue.
SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, SUBSTANTIAL BODILY
INJURY, SEX OFFENSES AGAINST MINORS, OR INCAPACITATION OR
DESTRUCTION OF CRITICAL INFRASTRUCTURE.
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;
(3) substantial bodily harm;
(4) conduct that constitutes a criminal offense that is a
specified offense against a minor (as those terms are defined
in section 111 of the Adam Walsh Child Protection and Safety
Act of 2006 (42 U.S.C. 16911)), or an attempt or conspiracy to
commit such a criminal offense; or
(5) incapacitation or destruction of critical
infrastructure (as defined in section 1016(e) of the USA
PATRIOT Act (42 U.S.C. 5195c(e))).
SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE NATIONAL
SECURITY.
(a) In General.--Section 2 shall not apply to any protected
information if--
(1) the party seeking to compel disclosure is the Federal
Government; and
(2)(A) in a criminal investigation or prosecution of the
allegedly unlawful disclosure of properly classified
information, the court finds by a preponderance of the evidence
that the protected information for which compelled disclosure
is sought would materially assist the Federal Government in
preventing or mitigating--
(i) an act of terrorism; or
(ii) other acts that are reasonably likely
to cause significant and articulable harm to
national security; or
(B) in any other criminal investigation or prosecution, the
court finds by a preponderance of the evidence that the
protected information for which compelled disclosure is sought
would materially assist the Federal Government in preventing,
mitigating, or identifying the perpetrator of--
(i) an act of terrorism; or
(ii) other acts that have caused or are reasonably
likely to cause significant and articulable harm to
national security.
(b) Deference.--In assessing the existence or extent of the harm
described in subsection (a), a Federal court shall give appropriate
deference to a specific factual showing submitted to the court by the
head of any executive branch agency or department concerned.
(c) Relationship to Section 2.--Subsection (a) shall not apply,
and, subject to sections 3 and 4, section 2 shall apply, to any
criminal investigation or prosecution of the allegedly unlawful
disclosure of properly classified information other than one in which
the protected information is sought by the Federal Government to
prevent or mitigate the harm specified in subsection (a)(2)(A). In
considering the extent of any harm to national security when applying
section 2 to such cases, a Federal court shall give appropriate
deference to any specific factual showing submitted to the court by the
head of any executive branch agency or department concerned.
(d) Subsequent Unlawful Disclosure.--The potential for a subsequent
unlawful disclosure of information by the source sought to be
identified shall not, by itself and without any showing of additional
facts beyond such potential disclosure, be sufficient to establish that
compelled disclosure of the protected information would materially
assist the Federal Government in preventing or mitigating--
(1) an act of terrorism; or
(2) other acts that are reasonably likely to cause
significant and articulable harm to national security.
SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.
(a) Conditions for Compelled Disclosure.--
(1) In general.--Except as provided in paragraph (2), if
any document or other information from the account of a person
who is known to be, or reasonably likely to be, a covered
person is sought from a communications service provider,
sections 2 through 5 shall apply in the same manner that such
sections apply to any document or other information sought from
a covered person.
(2) Exception.--If any document or other information from
the account of a person who is known to be, or reasonably
likely to be, a covered person is sought from a communications
service provider under section 2709 of title 18, United States
Code, the provisions of sections 2 through 5 governing criminal
investigations and prosecutions shall apply in the same manner
that such sections apply to any document or other information
sought from a covered person in the course of a criminal
investigation or prosecution, except that clauses (i) and (iii)
of section 2(a)(2)(A) and the phrase ``particularly with
reference to directly establishing guilt or innocence'' in
section 2(a)(2)(A)(ii) shall not apply.
(b) Notice and Opportunity Provided to Covered Persons.--A Federal
court may compel the disclosure of a document or other information
described in this section only after the covered person from whose
account the document or other information is sought has been given--
(1) notice from the party seeking the document or other
information through a subpoena or other compulsory request, 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 Federal court
involved determines by clear and convincing evidence that such notice
would pose a substantial threat to the integrity of a criminal
investigation, a national security investigation, or intelligence
gathering, or that exigent circumstances exist. 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.
(d) Notice to Communications Service Provider.--In all cases in
which notice is required to be provided to the covered person under
this section, a copy of such notice shall be provided simultaneously to
the communications service provider from whom disclosure is sought.
Once it has received such notice, the communications service provider
shall not comply with the request for disclosure unless and until
disclosure is either ordered by the court or authorized in writing by
the covered person.
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. PROCEDURES FOR REVIEW AND APPEAL.
(a) Conditions for Ex Parte Review or Submissions Under Seal.--With
regard to any determination made by a Federal court under this Act,
upon a showing of good cause, that Federal court may receive and
consider submissions from the parties in camera or under seal, and if
the court determines it is necessary, ex parte.
(b) Contempt of Court.--With regard to any determination made by a
Federal court under this Act, a Federal court may find a covered person
to be in civil or criminal contempt if the covered person fails to
comply with an order of a Federal court compelling disclosure of
protected information.
(c) To Provide for Timely Determination.--With regard to any
determination to be made by a Federal court under this Act, that
Federal court, to the extent practicable, shall make that determination
not later than 30 days after the date of receiving a motion requesting
the court make that determination.
(d) Expedited Appeal Process.--
(1) In general.--The courts of appeal shall have
jurisdiction--
(A) of appeals by a Federal entity or covered
person of an interlocutory order of a Federal court
under this Act; and
(B) in an appeal of a final decision of a Federal
court by a Federal entity or covered person, to review
any determination of a Federal court under this Act.
(2) Expedition of appeals.--It shall be the duty of a
Federal court to which an appeal is made under this subsection
to advance on the docket and to expedite to the greatest
possible extent the disposition of that appeal.
SEC. 9. RULE OF CONSTRUCTION.
Nothing in this Act may be construed to--
(1) preempt any law or claim relating to defamation,
slander, or libel;
(2) modify the requirements of section 552a of title 5,
United States Code, or Federal laws or rules relating to grand
jury secrecy (except that this Act shall apply in any
proceeding and in connection with any issue arising under that
section or the Federal laws or rules relating to grand jury
secrecy);
(3) create new obligations, or affect or modify the
authorities or obligations of a Federal entity with respect to
the acquisition or dissemination of information pursuant to the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.); or
(4) preclude voluntary disclosure of information to a
Federal entity in a situation that is not governed by this Act.
SEC. 10. AUDIT.
(a) In General.--The Inspector General of the Department of Justice
shall perform a comprehensive audit of the use of this Act during the
period beginning on the date of enactment of this Act and ending on
December 31, 2016. The audit shall include an examination of each
instance in which a court failed to compel the disclosure of protected
information under this Act, and whether this Act has created any
procedural impediments that have had a detrimental operational impact
on the activities of the Federal Bureau of Investigation.
(b) Report.--Not later than June 30, 2017, the Inspector General of
the Department of Justice shall submit to the Committee on the
Judiciary and the Select Committee on Intelligence of the Senate and
the Committee on the Judiciary and the Permanent Select Committee on
Intelligence of the House of Representatives a report containing the
results of the audit conducted under subsection (a).
(c) Review.--Not later than 30 days before the submission of the
report under subsection (b), the Inspector General of the Department of
Justice shall provide the report to the Attorney General and the
Director of National Intelligence. The Attorney General or the Director
of National Intelligence may provide such comments to be included in
the report submitted under subsection (b) as the Attorney General or
the Director of National Intelligence may consider necessary.
(d) Form.--The report submitted under subsection (b) and any
comments included under subsection (c) shall be in unclassified form,
but may include a classified annex.
SEC. 11. 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--
(i) with the primary intent to investigate
events and procure material in order to
disseminate to the public news or information
concerning local, national, or international
events or other matters of public interest,
regularly gathers, prepares, collects,
photographs, records, writes, edits, reports or
publishes on such matters by--
(I) conducting interviews;
(II) making direct observation of
events; or
(III) collecting, reviewing, or
analyzing original writings,
statements, communications, reports,
memoranda, records, transcripts,
documents, photographs, recordings,
tapes, materials, data, or other
information whether in paper,
electronic, or other form;
(ii) has such intent at the inception of
the process of gathering the news or
information sought; and
(iii) obtains the news or information
sought in order to disseminate the news or
information by means of print (including
newspapers, books, wire services, news
agencies, or magazines), broadcasting
(including dissemination through networks,
cable, satellite carriers, broadcast stations,
or a channel or programming service for any
such media), mechanical, photographic,
electronic, or other means;
(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 or is
reasonably likely to be--
(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 member or affiliate of 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 No. 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);
(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));
(vi) committing or attempting to commit the
crime of terrorism, as that offense is defined
in section 2331(5) or 2332b(g)(5) of title 18,
United States Code;
(vii) committing or attempting the crime of
providing material support, as that term is
defined in section 2339A(b)(1) of title 18,
United States Code, to a terrorist
organization; or
(viii) aiding, abetting, or conspiring in
illegal activity with a person or organization
defined in clauses (i) through (vii).
(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) Properly classified information.--The term ``properly
classified information'' means information that is classified
in accordance with any applicable Executive orders, statutes,
or regulations regarding classification of information.
(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
Read twice and referred to the Committee on the Judiciary.
Committee on the Judiciary. Committee consideration and Mark Up Session held.
Committee on the Judiciary. Ordered to be reported with an amendment in the nature of a substitute favorably.
Committee on the Judiciary. Reported by Senator Leahy with an amendment in the nature of a substitute. With written report No. 113-118. Additional and Minority views filed.
Committee on the Judiciary. Reported by Senator Leahy with an amendment in the nature of a substitute. With written report No. 113-118. Additional and Minority views filed.
Placed on Senate Legislative Calendar under General Orders. Calendar No. 238.
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