110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 110–370 

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 


bajohnson on PROD1PC69 with REPORTS
2 

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 


bajohnson on PROD1PC69 with REPORTS
3 

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. 


bajohnson on PROD1PC69 with REPORTS
4 

1 U.S. Const. amend. I. 

2See 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). 3See 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). 4See 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). 5See, 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). 6Mark Gomsak, Note, The Free Flow of Information Act of 2006: Settling the Journalist’s 

Privilege Debate, 45 BRANDEIS L.J. 597, 601 (2007). 7 Id. at 601. 

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

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. 

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 burdenVerDate Aug 31 2005 01:08 Oct 11, 2007 Jkt 069006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR370.XXX HR370

bajohnson on PROD1PC69 with REPORTS
5 

8 Id. at 608 (arguing that subpoenas devour time and resources better used for other purposes 

and entangle people in the criminal process). 9See 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). 11 408 U.S. 665 (1972). 12The 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. 16 Id. at 726 (Powell, J., concurring). 17 Id. 18 Id. at 743 (Stewart, J., dissenting). 

some.’’ 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

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

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 speVerDate Aug 31 2005 01:08 Oct 11, 2007 Jkt 069006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6601 E:\HR\OC\HR370.XXX HR370

bajohnson on PROD1PC69 with REPORTS
6 

19 Id. 20Paul 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). 23See 28 C.F.R. 50.10 (1970). 24 Id. 25See 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’’). 26Paul 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). 

cific 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

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

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. 

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 


bajohnson on PROD1PC69 with REPORTS
7 

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. 30 Brief for the State of Oklahoma, et al. as Amici Curiae Supporting Petitioners, Miller v. 

United States, No. 04–1507 (May 27, 2005). 

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. 

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 


bajohnson on PROD1PC69 with REPORTS
8 

31 Id. 

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

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. 


bajohnson on PROD1PC69 with REPORTS
9 

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: 

• The party seeking information has exhausted all reasonable 

alternative sources; 

• In 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; 

• In all other matters, the information sought is critical to the 

completion of the matter; 

• If 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; 

• The 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 proVerDate Aug 31 2005 01:08 Oct 11, 2007 Jkt 069006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR370.XXX HR370

bajohnson on PROD1PC69 with REPORTS
10 

viders (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 


bajohnson on PROD1PC69 with REPORTS
11 

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. § 1831 or § 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 


bajohnson on PROD1PC69 with REPORTS
12 

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 


bajohnson on PROD1PC69 with REPORTS
13 

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. 

Æ 


bajohnson on PROD1PC69 with REPORTS