I 

113TH CONGRESS 

1ST SESSION H. R. 1962 

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 

MAY 14, 2013 

Mr. POE of Texas 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Free Flow of Informa5 tion Act of 2013’’. 


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1 SEC. 2. COMPELLED DISCLOSURE FROM COVERED PER2 SONS. 

3 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 

4 any matter arising under Federal law, a Federal entity 

5 may not compel a covered person to provide testimony or 

6 produce any document related to information obtained or 

7 created by such covered person as part of engaging in 

8 journalism, unless a court determines by a preponderance 

9 of the evidence, after providing notice and an opportunity 

10 to be heard to such covered person— 

11 (1) that the party seeking to compel production 

12 of such testimony or document has exhausted all 

13 reasonable alternative sources (other than the cov14 ered person) of the testimony or document; 

15 (2) that— 

16 (A) in a criminal investigation or prosecu17 tion, based on information obtained from a per18 son other than the covered person— 

19 (i) there are reasonable grounds to be20 lieve that a crime has occurred; and 

21 (ii) the testimony or document sought 

22 is critical to the investigation or prosecu23 tion or to the defense against the prosecu24 tion; or 

25 (B) in a matter other than a criminal in26 vestigation or prosecution, based on information 


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1 obtained from a person other than the covered 

2 person, the testimony or document sought is 

3 critical to the successful completion of the mat4 ter; 

5 (3) in the case that the testimony or document 

6 sought could reveal the identity of a source of infor7 mation or include any information that could reason8 ably be expected to lead to the discovery of the iden9 tity of such a source, that— 

10 (A) disclosure of the identity of such a 

11 source is necessary to prevent an act of ter12 rorism against the United States or its allies or 

13 other significant and specified harm to national 

14 security with the objective to prevent such 

15 harm; 

16 (B) disclosure of the identity of such a 

17 source is necessary to prevent imminent death 

18 or significant bodily harm with the objective to 

19 prevent such death or harm, respectively; or 

20 (C) disclosure of the identity of such a 

21 source is necessary to identify a person who has 

22 disclosed— 

23 (i) a trade secret, actionable under 

24 section 1831 or 1832 of title 18, United 

25 States Code; 


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1 (ii) individually identifiable health in2 formation, as such term is defined in sec3 tion 1171(6) of the Social Security Act (42 

4 U.S.C. 1320d(6)), actionable under Fed5 eral law; or 

6 (iii) nonpublic personal information, 

7 as such term is defined in section 509(4) 

8 of the Gramm-Leach-Biley Act (15 U.S.C. 

9 6809(4)), of any consumer actionable 

10 under Federal law; and 

11 (4) that the public interest in compelling disclo12 sure of the information or document involved out13 weighs the public interest in gathering or dissemi14 nating news or information. 

15 (b) LIMITATIONS ON CONTENT OF INFORMATION.— 

16 The content of any testimony or document that is com17 pelled under subsection (a) shall— 

18 (1) not be overbroad, unreasonable, or oppres19 sive and, as appropriate, be limited to the purpose 

20 of verifying published information or describing any 

21 surrounding circumstances relevant to the accuracy 

22 of such published information; and 

23 (2) be narrowly tailored in subject matter and 

24 period of time covered so as to avoid compelling proVerDate Mar 15 2010 02:27 May 17, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1962.IH H1962

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1 duction of peripheral, nonessential, or speculative in2 formation. 

3 (c) RULE OF CONSTRUCTION.—Nothing in this Act 

4 shall be construed as applying to civil defamation, slander, 

5 or libel claims or defenses under State law, regardless of 

6 whether or not such claims or defenses, respectively, are 

7 raised in a State or Federal court. 

8 SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS 

9 SERVICE PROVIDERS. 

10 (a) CONDITIONS FOR COMPELLED DISCLOSURE.— 

11 With respect to testimony or any document consisting of 

12 any record, information, or other communication that re13 lates to a business transaction between a communications 

14 service provider and a covered person, section 2 shall apply 

15 to such testimony or document if sought from the commu16 nications service provider in the same manner that such 

17 section applies to any testimony or document sought from 

18 a covered person. 

19 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV20 ERED PERSONS.—A court may compel the testimony or 

21 disclosure of a document under this section only after the 

22 party seeking such a document provides the covered per23 son who is a party to the business transaction described 

24 in subsection (a)— 


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1 (1) notice of the subpoena or other compulsory 

2 request for such testimony or disclosure from the 

3 communications service provider not later than the 

4 time at which such subpoena or request is issued to 

5 the communications service provider; and 

6 (2) an opportunity to be heard before the court 

7 before the time at which the testimony or disclosure 

8 is compelled. 

9 (c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 

10 under subsection (b)(1) may be delayed only if the court 

11 involved determines by clear and convincing evidence that 

12 such notice would pose a substantial threat to the integrity 

13 of a criminal investigation. 

14 SEC. 4. DEFINITIONS. 

15 In this Act: 

16 (1) COMMUNICATIONS SERVICE PROVIDER.— 

17 The term ‘‘communications service provider’’— 

18 (A) means any person that transmits infor19 mation of the customer’s choosing by electronic 

20 means; and 

21 (B) includes a telecommunications carrier, 

22 an information service provider, an interactive 

23 computer service provider, and an information 

24 content provider (as such terms are defined in 


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1 sections 3 and 230 of the Communications Act 

2 of 1934 (47 U.S.C. 153, 230)). 

3 (2) COVERED PERSON.—The term ‘‘covered 

4 person’’ means a person who, for financial gain or 

5 livelihood, is engaged in journalism and includes a 

6 supervisor, employer, parent, subsidiary, or affiliate 

7 of such covered person. Such term shall not in8 clude— 

9 (A) any person who is a foreign power or 

10 an agent of a foreign power, as such terms are 

11 defined in section 101 of the Foreign Intel12 ligence Surveillance Act of 1978 (50 U.S.C. 

13 1801); or 

14 (B) any organization designated by the 

15 Secretary of State as a foreign terrorist organi16 zation in accordance with section 219 of the 

17 Immigration and Nationality Act (8 U.S.C. 

18 1189). 

19 (3) DOCUMENT.—The term ‘‘document’’ means 

20 writings, recordings, and photographs, as those 

21 terms are defined by Federal Rule of Evidence 1001 

22 (28 U.S.C. App.). 

23 (4) FEDERAL ENTITY.—The term ‘‘Federal en24 tity’’ means an entity or employee of the judicial or 

25 executive branch or an administrative agency of the 


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1 Federal Government with the power to issue a sub2 poena or issue other compulsory process. 

3 (5) JOURNALISM.—The term ‘‘journalism’’ 

4 means the gathering, preparing, collecting, 

5 photographing, recording, writing, editing, reporting, 

6 or publishing of news or information that concerns 

7 local, national, or international events or other mat8 ters of public interest for dissemination to the pub9 lic. 

Æ 


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