Congressional Record: February 9, 2005 (Senate)
Page S1215               


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS


                                 
      By Mr. LUGAR:
  S. 340. 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; to the 
Committee on the Judiciary.
  Mr. LUGAR. Mr. President, I rise today to introduce the Free Flow of 
Information Act of 2005. This bill was originally introduced in the 
House of Representatives by my friend and colleague, Congressman Mike 
Pence. I applaud the initiative by my colleague to address this 
important issue and I am pleased to have this opportunity to be the 
Senate sponsor.
  Last year, Congress passed legislation I proposed that directed the 
State Department to increase and add greater focus to international 
initiatives to support the development of free, fair, legally protected 
and sustainable media in developing countries.
  I am pleased to announce that the State Department and the National 
Endowment for Democracy have embraced this initiative and are now 
proceeding with implementing this initiative.
  Our Founders understood that free press is a cornerstone of 
democracy. To embrace and implement President Bush's bold and visionary 
call for the spread of democracy and freedom in the world, it is 
incumbent upon us to ensure that foreign assistance programs focus on 
the development of all the institutions that help democracies work and 
protect basic human rights.
  While we focus on those needs abroad, we cannot let those basic 
freedoms erode at home. The Constitution makes very clear that freedom 
of the press should not be infringed. A cornerstone of our society is 
the open market of information which can be shared through ever 
expanding mediums. The media serves as a conduit of information between 
our governments and communities across the country.
  It is important that we ensure reporters certain rights and abilities 
to seek sources and report appropriate information without fear of 
intimidation or imprisonment. This includes the right to refuse to 
reveal confidential sources. Without such protection, many 
whistleblowers will refuse to step forward and reporters will be 
disinclined to provide our constituents with the information that they 
have a right to know. Promises of confidentiality are essential to the 
flow of information the public needs about its government.
  The Free Flow of Information Act closely follows existing Department 
of Justice guidelines for issuing subpoenas to members of the news 
media. These guidelines were adopted in 1973 and have been in 
continuous operation for more than 30 years. The legislation codifies 
the conditions that must be met by the government to compel the 
identity of confidential sources.
  I am hopeful that my colleagues will give careful consideration to 
the merits of this legislation. It provides an appropriate approach and 
careful balance to protect our freedom of information while still 
enabling legitimate law enforcement access to information.

                          ____________________
						  
						  
Congressional Record: February 2, 2005 (Extensions)
Page E147                       



 
          INTRODUCTION OF FREE FLOW OF INFORMATION ACT OF 2005

                                 ______
                                 

                           HON. RICK BOUCHER

                              of virginia

                    in the house of representatives

                      Wednesday, February 2, 2005

  Mr. BOUCHER. Mr. Speaker, I am pleased today to join with my 
colleague from Indiana, Mr. Pence, in introducing the Free Flow of 
Information Act, legislation which will advance the public's right of 
access to information of broad public interest.
  Our measure addresses an increasingly common problem. Last year, 12 
reporters were threatened with jail sentences in federal courts for 
refusing to reveal confidential news sources. Reporters rely on the 
ability to assure confidentiality to sources in order to deliver news 
to the public. The ability of news reporters to assure confidentiality 
to sources is fundamental to their ability to deliver news on highly 
contentious matters of broad public interest. Without the promise of 
confidentiality, many sources would not provide information to 
reporters, and the public would suffer from the resulting lack of 
information.
  Thirty-one states and Washington, DC, currently have statutes 
protecting reporters from compelled disclosure of sources of 
information. It is time to provide similar protections in the federal 
courts.
  I have long believed that the Freedom of the Press provision of the 
first amendment should be interpreted by the courts to empower 
reporters to refrain from revealing their sources. Since the courts 
have not found this privilege to attend the first amendment, a 
statutory grant of the privilege has become necessary.
  In deciding to introduce this measure, I have concluded that the 
public's right to know should outweigh the more narrow interest in the 
administration of justice in a particular federal case. In fact, in 
many instances the critical information which first alerts federal 
prosecutors to conduct justifying a criminal proceeding or first alerts 
civil litigants to facts giving rise to a private cause of action is 
contained in a news story which could only have been reported upon 
assurance of anonymity to the news source.
  I commend my colleague Mr. Pence for his leadership on this measure 
and look forward to working with him to obtain rapid approval of the 
bill in the House.

                          ____________________
						  
						  

Congressional Record: February 2, 2005 (House)
Page H290-H291                       



 
                      FREE FLOW OF INFORMATION ACT

  (Mr. PENCE asked and was given permission to address the House for 1 
minute and to revise and extend his remarks.)
  Mr. PENCE. Mr. Speaker, 1 month ago, we stood in this assembled 
Chamber and pledged ourselves to support and defend the Constitution of 
the United States of America. Chief among the rights enumerated in that 
Constitution is the freedom of the press. Unfortunately, last year 
almost a

[[Page H291]]

dozen reporters were served or threatened with jail sentences in at 
least three different Federal jurisdictions for refusing to reveal 
confidential sources. Compelling reporters to testify and, in 
particular, compelling them to reveal the identity of their 
confidential sources is a detriment to the public interest. Without the 
promise of confidentiality, many important conduits of information 
about government activity would be shut down.
  Today, 31 States and the District of Columbia have various statutes 
that protect reporters from being compelled to testify and disclose 
sources of information in court, but there is no Federal protection. 
Mr. Speaker, today, along with the gentleman from Virginia (Mr. 
Boucher), I will introduce the Free Flow of Information Act. This 
important legislation will provide reporters with protection from being 
compelled to disclose sources of information in any Federal criminal or 
civil case without meeting strict criteria.
  ``Our liberty cannot be guarded but by the freedom of the press, nor 
that be limited without danger of losing it.'' Thomas Jefferson said 
that, and he was right. I urge my colleagues to join us in cosponsoring 
the Free Flow of Information Act and press for its immediate adoption.

                          ____________________


  						  
 

---

HR 581 IH

109th CONGRESS

1st Session

H. R. 581

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

February 2, 2005

Mr. PENCE (for himself and Mr. BOUCHER) 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 2005'.

SEC. 2. CONDITIONS FOR COMPELLED DISCLOSURE.

(a) Conditions for Compelled Disclosure- No Federal entity may compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under Federal law unless a court determines by clear and convincing evidence, after providing notice and an opportunity to be heard to the covered person--

(1) that the entity has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could reasonably be obtained other than a covered person; and

(2) that--

(A) in a criminal investigation or prosecution, based on information obtained from a person other than a 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, prosecution, or defense; or

(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than a covered person, the testimony or document sought is essential to a dispositive issue of substantial importance to that matter.

(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.

SEC. 3. COMMERCIAL OR FINANCIAL INFORMATION.

The provisions of section 2 do not apply to a request by a Federal entity for any testimony or document that consists of only commercial or financial information unrelated to newsgathering or news and information dissemination by a covered person.

SEC. 4. COMPELLED DISCLOSURE PROHIBITED.

Notwithstanding any provision of section 2, in any proceeding or in connection with any issue arising under Federal law, no Federal entity may compel a covered person to disclose--

(1) the identity of a source of information--

(A) from whom the covered person obtained information; and

(B) who the covered person believes to be a confidential source; or

(2) any information that could reasonably be expected to lead to the discovery of the identity of such a source.

SEC. 5. COMPELLED DISCLOSURE FROM THIRD PARTIES.

(a) Conditions for Compelled Disclosure- The provisions of sections 2, 3, and 4 shall apply to any testimony or document that a Federal entity seeks from a third party if such testimony or document consists of any record, information, or other communication that relates to a business transaction between such third party and a covered person. Such record, information, or other communication includes any telephone record or other record held by a telecommunications service provider, Internet service provider, or operator of an interactive computer service for a business purpose.

(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 third party not later than the time at which such subpoena or request is issued to the third party; 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 determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation.

SEC. 6. ACTIVITIES NOT CONSTITUTING A WAIVER.

The publication or dissemination of any testimony or document (or portion of such testimony or document) sought under section 2 shall not waive the requirements of such section. The publication or dissemination of any testimony or document (or portion of such testimony or document), identity, or information described in section 4 shall not waive the prohibition described in such section.

SEC. 7. DEFINITIONS.

In this Act:

(1) The term `covered person' means--

(A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

(2) The term `document' means writings, recordings, and photographs, as those terms are defined by Federal Rule of Evidence 1001 (28 U.S.C. App.).

(3) The term `Federal entity' means an entity or employee of the judicial, legislative, or executive branch of the Federal Government with the power to issue a subpoena or provide other compulsory process.

(4) The term `third party' means a person other than a covered person.

END