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