[House Report 110-370]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-370
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FREE FLOW OF INFORMATION ACT OF 2007
_______
October 10, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 2102]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(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, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 4
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 9
Performance Goals and Objectives................................. 10
Constitutional Authority Statement............................... 10
Advisory on Earmarks............................................. 10
Section-by-Section Analysis...................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 12
Additional Views................................................. 12
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
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 matter arising
under Federal law, a Federal entity may not compel a covered person to
provide testimony or produce any document related to information
obtained or created 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 the 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
critical 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 critical 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 an act of terrorism against the
United States or its allies or other significant and
specified 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, actionable under
section 1831 or 1832 of title 18, United States
Code;
(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)), actionable under Federal law; or
(iii) nonpublic personal information, as
such term is defined in section 509(4) of the
Gramm-Leach-Biley Act (15 U.S.C. 6809(4)), of
any consumer actionable under Federal law; 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.
(b) Limitations on Content of Information.--The content of any
testimony or document that is compelled under subsection (a) shall--
(1) not be overbroad, unreasonable, or oppressive and, as
appropriate, 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.
(c) Rule of Construction.--Nothing in this Act shall be construed
as applying to civil defamation, slander, or libel claims or defenses
under State law, regardless of whether or not such claims or defenses,
respectively, are raised in a State or Federal court.
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 who, for financial gain or livelihood, is engaged in
journalism and includes a supervisor, employer, parent,
subsidiary, or affiliate of such covered person. Such term
shall not include--
(A) any person who is a foreign power or an agent
of a foreign power, as such terms are defined in
section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801); or
(B) any organization designated by the Secretary of
State as a foreign terrorist organization in accordance
with section 219 of the Immigration and Nationality Act
(8 U.S.C. 1189).
(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.
Purpose and Summary
H.R. 2102, the ``Free Flow of Information Act of 2007,''
ensures that members of the press may utilize confidential
sources without causing harm to themselves or their sources. It
does this by providing a qualified privilege that prevents a
reporter's source material from being revealed except under
certain narrow circumstances, such as where it is necessary to
prevent an act of terrorism or other significant and specified
harm to national security or imminent death or significant
bodily harm. The bill thus strikes a balance with respect to
promoting the free dissemination of information and ensuring
effective law enforcement and the fair administration of
justice.
Background and Need for the Legislation
BACKGROUND
The First Amendment and Freedom of the Press
The First Amendment of the Constitution states that
``Congress shall make no law . . . abridging the freedom of
speech, or of the press.''\1\ Historically, the press has
played an essential role in disseminating information to the
public.\2\ In addition to providing general news about crimes
against the State, the press has been thought to further the
values of the First Amendment by providing information on
issues of public concern, including on public officials and
government corruption.\3\ Thus, it has been recognized that the
press should be free from most government restrictions on
dissemination of information if it is to provide newsworthy
information to the general public.\4\ The Supreme Court has
recognized this and has struck down laws that have restricted
the press's ability to broadcast information of public
concern.\5\ Since confidential sources are thought to be
particularly important to bringing unrestricted information of
public interest to light, it has been argued that the First
Amendment offers protection against the compulsory disclosure
of these confidential sources by the Federal Government.\6\
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\1\U.S. Const. amend. I.
\2\See Bradley S. Miller, The Big Chill: Third-Party Documents and
the Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96)
(discussing the importance of the press in getting useful information
about government to the people); see also Citizen Pub. Co. v. United
States, 394 U.S. 131, 139-40 (1969) (explaining that a free press is
key to a free society as it ensures widespread and diverse dispersal of
information).
\3\See New York Times v. Sullivan, 376 U.S. 254, 270 (1964)
(stating that ``debate on public issues should be uninhibited, robust,
and wide-open''); see also Mills v. Alabama, 384 U.S. 214, 218 (1966)
(asserting that ``a major purpose of that Amendment was to protect the
free discussion of government affairs''); Garrison v. Louisiana, 379
U.S. 64, 77 (1964) (suggesting that there is ``paramount public
interest in a free flow of information to the people concerning public
officials''). See generally David A. Anderson, The Origins of the Press
Clause, 30 UCLA L. Rev. 455 (1983) (detailing history of Press Clause).
\4\See Bradley S. Miller, The Big Chill: Third-Party Documents and
the Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96)
(arguing that the press must be free of governmental restrictions so it
can remain the ``investigative arm of the people,'' uncovering
government corruption and other crimes detrimental to American people);
see also New York Times v. United States, 403 U.S. 713, 728 (1971)
(Stewart, J., concurring) (arguing that in certain areas of government,
the only checks and balances against such government may be
``enlightened citizenry,'' and an alert and free press is essential to
bestow knowledge on the public).
\5\See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
580 (1980) (overruling limitations on press access to judicial
proceedings); Sullivan, 376 U.S. at 281 (establishing ``actual malice''
standard for defamation claims by public officials).
\6\Mark Gomsak, Note, The Free Flow of Information Act of 2006:
Settling the Journalist's Privilege Debate, 45 Brandeis L.J. 597, 601
(2007).
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There are typically two bases in the First Amendment
supporting the privilege: (1) the need to protect the free flow
of information and ideas, and (2) the need to keep the
government from interfering with the press or using it as an
investigative arm.\7\ With respect to the first point, the
right to publish is worthless without the right to gather
information; shield law protection is necessary because some
reporting is dependent on informants, and some informants are
unwilling to be named because of fear of embarrassment or harm.
Those informants could be deterred by the threat of being named
and, as a result, reporters would neither have access to nor be
able to publish important information.
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\7\Id. at 601.
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With respect to the second point, it is often argued by the
press that the extent of interference with the journalistic
process is significant: ``subpoenas are inherently, invariably,
inescapably burdensome.''\8\ Responding to subpoenas requires
much time and expense, and the subpoenas often seek information
that is only marginally relevant.\9\ The press further asserts
that complying with a subpoena may also have an adverse impact
on a journalist's credibility, as, in addition to losing
credibility with their sources, testifying for one side may
make the journalist appear biased.\10\
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\8\Id. at 608 (arguing that subpoenas devour time and resources
better used for other purposes and entangle people in the criminal
process).
\9\See id. at 609 (citing Judge Richard Posner's statement that
subpoenas can lawfully require testimony about activities both
``intensely private and entirely marginal to the purpose of the
inquiry'').
\10\Bradley S. Miller, The Big Chill: Third-Party Documents and the
Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96)
(suggesting that the subpoena threat may puncture the cooperative
atmosphere between reporter and source by redirecting attention to the
question of the reporter's loyalties); see, e.g., Cohen v. Cowles Media
Co., 501 U.S. 663, 665 (1991) (concluding that the First Amendment does
not prohibit a plaintiff from recovering damages for a reporter's
breach of a promise of confidentiality).
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The Issue of Journalistic Privilege
In Branzburg v. Hayes,\11\ the Supreme Court ruled on a
claim of journalists' privilege for the first time.\12\ In an
opinion by Justice White, the Court held that a journalist
could not rely on an absolute First Amendment-based privilege
to refuse to testify when questioned by a grand jury, unless
the grand jury investigation was ``instituted or conducted
other than in good faith.''\13\ The Court reasoned that the
public's interest in prosecuting crime outweighed its interest
in journalists' being permitted to preserve their confidential
relationships. The Court, however, noted that there was ``merit
in leaving state legislatures free, within First Amendment
limits, to fashion their own standards'' regarding journalists'
privilege.\14\ The Court also specifcally invited Congress to
craft its own Federal shield law: ``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 to deal with the evil discerned and,
equally important, to refashion those rules as experience from
time to time dictate.''\15\
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\11\408 U.S. 665 (1972).
\12\The first claim by a reporter that the First Amendment
justified a refusal to provide information came in a case in which a
columnist reported several allegedly defamatory statements from an
anonymous CBS source about actress Judy Garland. See Garland v. Torre,
259 F.2d 545, 547 (2d Cir. 1958). Garland sued CBS; in her deposition,
the reporter refused to answer questions about the source of the
statements. Id. The Second Circuit held that the First Amendment did
not confer a right to refuse to answer questions, at least when the
questions ``went to the heart of the . . . claim.'' Id. at 548-50.
\13\408 U.S. 665, at 707.
\14\Id. at 706.
\15\Id.
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Justice Powell's concurrence in Branzburg stressed the need
for a test to strike the ``proper balance between freedom of
the press and the obligation of all citizens to give relevant
testimony with respect to criminal conduct.''\16\ He explained
that a court could quash a subpoena where ``legitimate First
Amendment interests require protection.''\17\ In his dissent,
Justice Stewart went a step further and proposed a specific
balancing test.\18\ Under his test, in order to make a
journalist comply with a subpoena to appear before a grand jury
and reveal confidential sources and information, the government
must: (1) show that there is probable cause to believe that the
reporter has information that is clearly relevant to a specific
probable violation of law; (2) demonstrate that the information
sought cannot be obtained by alternative means less destructive
of First Amendment rights; and (3) establish a compelling and
overwhelming interest in the information.\19\
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\16\Id. at 726 (Powell, J., concurring).
\17\Id.
\18\Id. at 743 (Stewart, J., dissenting).
\19\Id.
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In the aftermath of Branzburg, there have been recurring
calls for a Federal shield law or for a reconsideration of that
decision.\20\ Although nearly one hundred bills were introduced
in the 6 years after the Branzburg decision,\21\ none of these
measures was passed, a failure that is partially attributed to
an inability to reach consensus on the definition of a
``journalist'' and to the insistence of the press on an
absolute privilege, not a qualified one.\22\ In 1970 the
Attorney General promulgated guidelines to govern the issue for
the Department of Justice.\23\ These guidelines require the
Department to: balance First Amendment values with the need for
the information sought by the subpoena; make a reasonable
attempt to get the information from alternative sources;
negotiate with the news media before issuing a subpoena; obtain
Attorney General approval before issuing a subpoena; and
specify reasonable grounds for the Department's belief that the
information sought by the subpoena is essential.\24\
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\20\Paul Marcus, The Reporter's Privilege: An Analysis of the
Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25
Ariz. L. Rev. 815, 866-67 (1984) (calling for a uniform national
standard for the national newsgathering media).
\21\Id. at 867.
\22\23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure 5426, at 738-39 (1980) (concluding that the
press eventually lost interest in seeking a Federal legislative
solution to the subpoena problem).
\23\See 28 C.F.R. 50.10 (1970).
\24\Id.
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Also since the Branzburg decision, Federal courts have
continued to develop a common law privilege on a case-by-case
basis.\25\ Some Federal courts have recognized a qualified
journalist's privilege in non-grand jury settings, some have
extended it to both civil and criminal proceedings, and some
have even extended the privilege to non-confidential
sources.\26\ This lack of uniformity among the Federal courts
has prompted calls from journalists, scholars, and State
attorneys general for Federal legislation.
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\25\See Riley v. City of Chester, 612 F.2d 708, 714 n.6 (3d Cir.
1979) (quoting a comment by the principal drafter of the Federal Rules
of Evidence that ``the language of Rule 501 permits the courts to
develop a privilege for newspaperpeople on a case-by-case basis'').
\26\Paul Marcus, The Reporter's Privilege: An Analysis of the
Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25
Ariz. L. Rev. 815, 864 (1984).
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The Federal Rules of Evidence
Federal Rule of Evidence 501 states that except as provided
by an Act of Congress or in rules prescribed by the Supreme
Court, Federal privileges should be governed by the principles
of common law. When courts recognize a privilege, it has been
for the purpose of protecting information shared in the context
of a special relationship, such as the attorney-client or
husband-wife. Privileges are created to promote sharing
information without the fear that either party will be forced
to disclose to a third party.
In 1996, the Supreme Court issued a three-part test for
when a new privilege may be created: 1) whether the proposed
privilege serves significant public and private interests; 2)
whether the recognition of those interests outweighs any burden
on truth-seeking that might be imposed by the States; and 3)
whether such a privilege is widely recognized by the States.
State Shield Laws
Since Branzburg, 49 States and the District of Columbia now
recognize some version of a shield law protecting the press, to
varying degrees, from unfettered disclosure of sources, work
product, and information generally. Whereas 16 of these States
recognize a reporter's privilege as a result of judicial
decisions, only 13 States and the District of Columbia accord
an absolute privilege for a journalist to withhold information,
regardless of the State's demonstration of need for the
information.
The various State statutes range in scope, from broad
protections that provide an absolute journalistic privilege to
shield laws that offer a qualified privilege.\27\ The majority
of State shield laws currently in place offer some form of a
qualified privilege to reporters that protects source
information in judicial settings, unless the compelling party
can establish that the information is: (1) relevant or
material; (2) unavailable by other means, or through other
sources; and (3) that a compelling need exists for such
information.\28\ The States tend to vary on the last prong,
with some requiring the compelling party to establish whether
the need exists as to the party's case, and others whether the
need serves a broader public policy.\29\ In Federal courts,
however, there is no uniform set of standards governing when
testimony can be sought from reporters.
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\27\Carey Lening & Henry Cohen, Journalists' Privilege to Withhold
Information in Judicial and Other Proceedings: State Shield Statutes,
Congressional Research Service Report for Congress, Mar. 8, 2005.
\28\Id.
\29\Id.
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NEED FOR THE LEGISLATION
This legislation is essential for journalists to be able to
protect confidential sources. Without this protection, many
sources of information may be unwilling to come forward with
critical information. The privilege is necessary to preserve
the free flow of information.
Many people view the press as the fourth branch of
government, serving in the checks and balances system that
underlies our democracy. Throughout the years, the press has
uncovered scandals and corruption in the government, and
criminal behavior, often attributable to an undisclosed source.
In fact, many stories would not have been published without a
promise of confidentiality of sources, such as Watergate, the
Pentagon Papers, and Iran-Contra. More recent news stories
brought to light based on confidential sources include the
conditions at the Walter Reed Army Medical Center, the Abu
Ghraib prison scandal, and the abuse of steroids by baseball
players.
A Federal shield law is also needed because of the lack of
uniform standards--at both the Federal level and State level--
to govern when testimony can be sought from reporters. This
argument was made by 34 State attorneys general, including the
District of Columbia, in an amicus brief filed May 27,
2005.\30\ In the brief, the attorneys general recognize that 49
States and the District of Columbia had some form of a shield
law, and state that ``[l]ack of a corresponding Federal
reporter's privilege undercuts the States' privileges
recognized in forty-nine States and causes needless
confusion.'' The attorneys general also suggested that three
decades after Branzburg, the change in the State law landscape
and the confusion in the Federal circuits made the
consideration of a Federal reporter's privilege ripe for
review.\31\
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\30\Brief for the State of Oklahoma, et al. as Amici Curiae
Supporting Petitioners, Miller v. United States, No. 04-1507 (May 27,
2005).
\31\Id.
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Finally, because the privilege is not absolute, this law
will prevent law enforcement officials from using journalists
and the results of their fact-gathering as a shortcut to a
proper investigation. With the reporter shield law, law
enforcement will be forced to pursue other sources of
information before being able to turn to journalists for their
notes.
Hearings
The full Committee on the Judiciary held 1 day of hearings
on H.R. 2102 on June 14, 2007. Testimony was received from
Rachel Brand, Assistant Attorney General for Legal Policy, U.S.
Department of Justice; William Safire, columnist, N.Y. Times;
Lee Levine, partner, Levine, Sullivan Koch and Schultz, LLP;
Randall Eliason, Professional Lecturer in Law, George
Washington University Law School and Washington College of Law,
American University; and Jim Taricani, reporter, WJAR TV,
Providence, Rhode Island.
Committee Consideration
On August 1, 2007, the full Committee met in open session
and ordered the bill H.R. 2102 favorably reported, with
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 2102.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, 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 is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2102, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 5, 2007.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2102, the Free
Flow of Information Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leigh Angres,
who can be reached at 226-2860.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 2102--Free Flow of Information Act of 2007.
CBO estimates that implementing H.R. 2102 would have no
significant effect on the Federal budget. H.R. 2102 would
exempt journalists from being compelled to produce documents,
provide testimony, and identify confidential informants unless
a court finds that one of the following exceptions applies:
LThe party seeking information has exhausted
all reasonable alternative sources;
LIn criminal investigations or prosecutions,
there are reasonable grounds to believe a crime has
occurred, and the testimony or document sought is
critical to the investigation, prosecution, or defense;
LIn all other matters, the information sought
is critical to the completion of the matter;
LIf the testimony or document sought could
reveal or lead to the discovery of the identity of a
source of information, the disclosure of such source is
necessary to prevent an act of terrorism, prevent
imminent death or significant bodily harm, or identify
a person that has exposed a trade secret, certain
health information, or nonpublic personal information;
LThe public interest in compelling disclosure
of the information or document involved outweighs the
public interest in gathering or disseminating news
information.
The bill also would limit the content of subpoenaed
testimony or documents. Additionally, under the bill,
communication service providers (i.e., telecommunications
carriers and Internet service providers) could not be compelled
to provide testimony or documents relating to a reporter's
phone, email, and computer use, unless one of the above
exceptions applies.
Under current law, requests to subpoena journalists on
matters related to Federal cases typically originate within the
Department of Justice (DOJ). Federal prosecutors can request a
subpoena of a journalist from a court after an internal review
by DOJ. Information from DOJ indicates that very few subpoena
requests seeking confidential source information are approved
each year and that the bill would not substantially change the
number of such requests. The bill might increase Federal
attorneys' litigation duties, but CBO estimates that any
increase in Federal spending would be insignificant. In
addition, based on information from the Administrative Office
of the United States Courts, CBO expects that the bill would
not appreciably increase the courts' workloads. Therefore, CBO
estimates that implementing H.R. 2102 would have no significant
budgetary impact.
H.R. 2102 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The staff contact for this estimate is Leigh Angres, who
can be reached at 226-2860. The estimate was approved by
Theresa A. Gullo, Chief, State and Local Government Cost
Estimates Unit, Budget Analysis Division.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2102 is intended to ensure 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.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 18 of the
Constitution and the First Amendment.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2102 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ``Free Flow of Information Act of 2007.''
Sec. 2. Compelled Disclosure from Covered Persons. Section
2 establishes a procedure by which disclosure of confidential
information from a journalist may be compelled. Subsection (a)
states that in any matter arising under Federal law, a Federal
entity may not compel a journalist to testify or provide
documents related to information obtained or created by the
journalist, unless four conditions are met by a preponderance
of the evidence and after notice and an opportunity to be
heard. First, the party seeking production must have exhausted
all reasonable alternative sources of the information. Second,
if the privilege pertains to a criminal investigation or
prosecution, the party seeking production must have reasonable
grounds to believe a crime has occurred and the information
sought is critical to the investigation, prosecution, or
defense of the case. If it is a civil investigation, the
information must be critical to the successful completion of
the case. Third, if the information could reveal the identity
of a confidential source, disclosure is only allowed if it is
necessary to: (1) prevent an act of terrorism against the
United States or its allies or other significant and specified
harm to national security; (2) prevent imminent death or
significant bodily harm; or (3) identify a person who has
disclosed a trade secret actionable under 18 U.S.C. Sec. 1831
or Sec. 1832; individually identifiable health information as
defined in section 1171(6) of the Social Security Act; or
nonpublic personal information as defined in section 509(4) of
the Gramm-Leach-Bliley Act. Fourth, the party seeking
production must prove that the public interest in compelling
disclosure outweighs the public interest in gathering or
disseminating news or information.
Subsection (b) states that the content of any information
that can be compelled should not be overbroad, unreasonable or
oppressive and, where appropriate, should be limited to the
purpose of verifying published information or describing
surrounding circumstances relevant to the accuracy of the
published information, and be tailored in subject matter and
period of time so it is not peripheral, nonessential, or
speculative information.
Subsection (c) states that this Act may not be construed to
apply to civil defamation, slander or libel claims or defenses
under State law, regardless of whether or not the claims or
defenses are raised in State or Federal court. In providing for
the application of State privilege law to State-law defamation,
slander and libel claims or defenses, this section--like the
Act as a whole--thus incorporates Federal Rule of Evidence 501,
which provides that ``with respect to an element of a claim or
defense as to which State law supplies the rule of decision,
the privilege of a witness, person, government, State, or
political subdivision thereof shall be determined in accordance
with State law.''
Sec. 3. Compelled Disclosure From Communications Service
Providers. Section 3 applies when the Federal entity attempts
to get information from a communications service provider
(``CSP'') that relates to a business transaction between the
CSP and the covered person. In that case, subsection (a) states
that section 2 applies in the same manner to these
transactions. Subsection (a) also clarifies that testimony or
documents sought from the CSP of a non-covered person is not
protected. Subsection (b) sets out the procedures for notice
and hearing. A court may compel testimony or disclosure of
documents only after the covered person has notice of the
subpoena (no later than the time the subpoena is issued) and an
opportunity to be heard before the disclosure is compelled.
Subsection (c) provides that notice may be delayed if the court
determines by clear and convincing evidence that not delaying
it would pose a substantial threat to the integrity of a
criminal investigation.
Sec. 4. Definitions. Section 4 defines various terms. It
defines ``communications service provider'' as a person that
transmits information of a customer's choosing by electronic
means. The term includes a telecommunications carrier, an
information service provider, and an information content
provider (as defined in Title 47 of the United States Code).
``Covered person'' is defined as a person who, for financial
gain or livelihood, is engaged in journalism, including
supervisors, employers, parents, subsidiaries, or affiliates of
a covered person. The term does not include any person who is a
``foreign power'' or ``agent of a foreign power'' as defined in
section 101 of the Foreign Intelligence Surveillance Act, or
any person who is a foreign terrorist organization, designated
by the Secretary of State, in accordance with section 219 of
the Immigration and Nationality Act. The term ``document''
includes writings, recordings, and photographs (as defined in
the Federal Rules of Evidence). The term ``federal entity'' is
an entity or employee of the judicial or executive branch or an
administrative agency with subpoena power. Section 4 defines
``journalism'' as ``gathering, preparing, collecting,
photographing, recording, writing, editing, reporting, or
publishing of news of information that concerns local,
national, or international events or other matters of public
interest for dissemination to the public.''
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, the Committee advises that H.R.
2102 makes no changes to existing law.
Additional Views
I want to thank the primary authors of H.R. 2102, Mr.
Boucher and Mr. Pence, for working with the Department of
Justice, interested groups, and Members to develop alternative
language to address the legitimate concerns of industry and law
enforcement authorities.
The proponents of H.R. 2102 have worked hard over the past
three years to balance competing policy interests. The result
is an improved bill.
For example, the authors narrowed the definition of a
``covered person'' to include only professional journalists.
They addressed some of the Department of Justice's concerns
by denying protection to persons covered by the Foreign
Intelligence Surveillance Act as well as those affiliated with
terrorist organizations designated by the Secretary of State.
The manager's amendment adopted at full Committee markup
also deletes the ``imminent and actual'' harm language from the
section of the bill that lists exceptions to source protection.
The new text would deny protection when disclosure is necessary
to prevent ``an act of terrorism against the United States or
other significant specified'' harm to national security.
In addition, the manager's amendment broadens the trade
secrecy, health, and non-public personal information exceptions
by linking them to disclosures that are ``actionable under''
specific statutes.
Further, the manager's amendment specifies that the
protections afforded transactions between a covered person and
a communications service provider do not apply to a non-covered
person.
And finally, the manager's amendment includes new
limitations on information content that is compelled: it must
not be ``overbroad, unreasonable or oppressive and, where
appropriate,'' be limited to the purpose of verifying published
information or describing any surrounding circumstances
relevant to the published information's accuracy.
But despite efforts to accommodate their concerns, the
Justice Department still opposes the bill. They believe the
stakes are too high in a post 9/11 world to support the Free
Flow of Information Act.
The federal government defends our national security. So we
must weigh the benefits of a reporter's privilege with the
problems it may cause for those who protect our country.
They have pointed out that the ``exceptions'' language
fails to address misconduct that the Department confronts on a
daily basis.
To illustrate, the legislation prevents DoJ from obtaining
the identity of a news source with knowledge of a child
prostitution ring, an online purveyor of pornography, gang
violence, or alien smuggling.
And the new text governing source disclosure exceptions
only addresses prospective events. The Department may be able
to acquire information about a source's identity to prevent a
terrorist attack. But the
language does not help if an attack has already occurred
and DoJ is searching for plotters or witnesses with knowledge
about the event.
Also, the H.R. 2102 does not address ``imminent attacks''
against our allies, soldiers, embassies, and US citizens in
other countries.
It protects trade secrets, but not national secrets.
Despite the changes contained in the reported version of
H.R. 2102, I am concerned that the Department will be hamstrung
as it goes about the business of conducting investigations and
prosecuting criminals.
But DoJ should do more than complain; they should negotiate
in good faith and provide the Committee with language that
addresses their concerns.
Although a close call, I could not support H.R. 2102 during
the Committee markup. I simply believe we must err on the side
of caution and not support legislation that could make it
harder to apprehend criminals and terrorist or deter their
activities.
But DoJ can do a better job of working with the Committee
to improve the bill between now and floor consideration of H.R.
2102. Progress was made in the manager's amendment and we
should continue to improve this bill before we go to the House
floor. If the legitimate security concerns registered by the
Department are addressed at that time then I will support H.R.
2102.
Lamar Smith.