II 

109TH CONGRESS 

2D SESSION S. 2831 

To guarantee the free flow of information to the public through a free 

and active press while protecting the right of the public to effective 

law enforcement and the fair administration of justice. 

IN THE SENATE OF THE UNITED STATES 

MAY 18, 2006 

Mr. LUGAR (for himself, Mr. SPECTER, Mr. DODD, Mr. GRAHAM, and Mr. 

SCHUMER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To guarantee the free flow of information to the public 

through a free and active press while protecting the 

right of the public to effective law enforcement and the 

fair administration of justice. 

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 2006’’. 

6 SEC. 2. PURPOSE. 

7 The purpose of this Act is to guarantee the free flow 

8 of information to the public through a free and active 


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1 press as the most effective check upon Government abuse, 

2 while protecting the right of the public to effective law 

3 enforcement and the fair administration of justice. 

4 SEC. 3. DEFINITIONS. 

5 In this Act— 

6 (1) the term ‘‘attorney for the United States’’ 

7 means the Attorney General, any United States At8 torney, Department of Justice prosecutor, special 

9 prosecutor, or other officer or employee of the 

10 United States in the executive branch of Govern11 ment or any independent regulatory agency with the 

12 authority to obtain a subpoena or other compulsory 

13 process; 

14 (2) the term ‘‘communication service pro15 vider’’— 

16 (A) means any person that transmits infor17 mation of the customer’s choosing by electronic 

18 means; and 

19 (B) includes a telecommunications carrier, 

20 an information service provider, an interactive 

21 computer service provider, and an information 

22 content provider (as such terms are defined in 

23 sections 3 and 230 of the Communications Act 

24 of 1934 (47 U.S.C. 153 and 230)); and 


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1 (3) the term ‘‘journalist’’ means a person who, 

2 for financial gain or livelihood, is engaged in gath3 ering, preparing, collecting, photographing, record4 ing, writing, editing, reporting, or publishing news 

5 or information as a salaried employee of or inde6 pendent contractor for a newspaper, news journal, 

7 news agency, book publisher, press association, wire 

8 service, radio or television station, network, maga9 zine, Internet news service, or other professional me10 dium or agency which has as 1 of its regular func11 tions the processing and researching of news or in12 formation intended for dissemination to the public. 

13 SEC. 4. COMPELLED DISCLOSURE AT THE REQUEST OF AT14 TORNEYS FOR THE UNITED STATES IN CRIMI15 NAL PROCEEDINGS. 

16 (a) IN GENERAL.—Except as provided in subsection 

17 (b), in any criminal investigation or prosecution, a Federal 

18 court may not, upon the request of an attorney for the 

19 United States, compel a journalist, any person who em20 ploys or has an independent contract with a journalist, 

21 or a communication service provider to disclose— 

22 (1) information identifying a source who pro23 vided information under a promise or agreement of 

24 confidentiality made by the journalist while acting in 

25 a professional newsgathering capacity; or 


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1 (2) any records, communication data, docu2 ments, or information that the journalist obtained or 

3 created while acting in a professional newsgathering 

4 capacity and upon a promise or agreement that such 

5 records, communication data, documents, or infor6 mation would be confidential. 

7 (b) DISCLOSURE.—Compelled disclosures otherwise 

8 prohibited under subsection (a) may be ordered only if a 

9 court, after providing the journalist, or any person who 

10 employs or has an independent contract with a journalist, 

11 notice and an opportunity to be heard, determines by clear 

12 and convincing evidence that— 

13 (1) the attorney for the United States has ex14 hausted alternative sources of the information; 

15 (2) to the extent possible, the subpoena— 

16 (A) avoids requiring production of a large 

17 volume of unpublished material; and 

18 (B) is limited to— 

19 (i) the verification of published infor20 mation; and 

21 (ii) surrounding circumstances relat22 ing to the accuracy of the published infor23 mation; 


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1 (3) the attorney for the United States has given 

2 reasonable and timely notice of a demand for docu3 ments; 

4 (4) nondisclosure of the information would be 

5 contrary to the public interest, taking into account 

6 both the public interest in compelling disclosure and 

7 the public interest in newsgathering and maintaining 

8 a free flow of information to citizens; 

9 (5) there are reasonable grounds, based on an 

10 alternative, independent source, to believe that a 

11 crime has occurred, and that the information sought 

12 is critical to the investigation or prosecution, par13 ticularly with respect to directly establishing guilt or 

14 innocence; and 

15 (6) the subpoena is not being used to obtain pe16 ripheral, nonessential, or speculative information. 

17 SEC. 5. COMPELLED DISCLOSURE AT THE REQUEST OF 

18 CRIMINAL DEFENDANTS. 

19 (a) IN GENERAL.—Except as provided in subsection 

20 (b), a Federal court may not, upon the request of a crimi21 nal defendant, compel a journalist, any person who em22 ploys or has an independent contract with a journalist, 

23 or a communication service provider to disclose— 

24 (1) information identifying a source who pro25 vided information under a promise or agreement of 


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1 confidentiality made by the journalist while acting in 

2 a professional newsgathering capacity; or 

3 (2) any records, communication data, docu4 ments, or information that the journalist obtained or 

5 created while acting in a professional newsgathering 

6 capacity and under a promise or agreement that 

7 such records, communication data, documents, or in8 formation would be confidential. 

9 (b) DISCLOSURE.—Compelled disclosures otherwise 

10 prohibited under subsection (a) may be ordered only if a 

11 court, after providing the journalist, or any person who 

12 employs or has an independent contract with a journalist, 

13 notice and an opportunity to be heard, determines by clear 

14 and convincing evidence that— 

15 (1) the criminal defendant has exhausted alter16 native sources of the information; 

17 (2) there are reasonable grounds, based on an 

18 alternative source, to believe that the information 

19 sought is directly relevant to the question of guilt or 

20 innocence or to a fact that is critical to enhancement 

21 or mitigation of a sentence; 

22 (3) the subpoena is not being used to obtain pe23 ripheral, nonessential, or speculative information; 

24 and 


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1 (4) nondisclosure of the information would be 

2 contrary to the public interest, taking into account 

3 the public interest in compelling disclosure, the de4 fendant’s interest in a fair trial, and the public in5 terest in newsgathering and in maintaining the free 

6 flow of information. 

7 SEC. 6. CIVIL LITIGATION. 

8 (a) IN GENERAL.—Except as provided in subsection 

9 (b), in any civil action, a Federal court may not compel 

10 a journalist, any person who employs or has an inde11 pendent contract with a journalist, or a communication 

12 service provider to disclose— 

13 (1) information identifying a source who pro14 vided information under a promise or agreement of 

15 confidentiality made by the journalist while acting in 

16 a professional newsgathering capacity; or 

17 (2) any records, communication data, docu18 ments, or information that the journalist obtained or 

19 created while acting in a professional newsgathering 

20 capacity and upon a promise or agreement that such 

21 records, communication data, documents, or infor22 mation would be confidential. 

23 (b) DISCLOSURE.—Compelled disclosures otherwise 

24 prohibited under (a) may be ordered only if a court, after 

25 providing the journalist, or any person who employs or has 


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1 an independent contract with a journalist, notice and an 

2 opportunity to be heard, determines by clear and con3 vincing evidence that— 

4 (1) the party seeking the information has ex5 hausted alternative sources of the information; 

6 (2) the information sought is critical to the suc7 cessful completion of the civil action; 

8 (3) nondisclosure of the information would be 

9 contrary to the public interest, taking into account 

10 both the public interest in compelling disclosure and 

11 the public interest in newsgathering and in main12 taining the free flow of information to the widest 

13 possible degree about all matters that enter the pub14 lic sphere; 

15 (4) the subpoena is not being used to obtain pe16 ripheral, nonessential, or speculative information; 

17 (5) to the extent possible, the subpoena— 

18 (A) avoids requiring production of a large 

19 volume of unpublished material; and 

20 (B) is limited to— 

21 (i) the verification of published infor22 mation; and 

23 (ii) surrounding circumstances relat24 ing to the accuracy of the published infor25 mation; and 


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1 (6) the party seeking the information has given 

2 reasonable and timely notice of the demand for doc3 uments. 

4 SEC. 7. EXCEPTION FOR JOURNALIST’S EYEWITNESS OB5 SERVATIONS OR PARTICIPATION IN CRIMI6 NAL OR TORTIOUS CONDUCT. 

7 Notwithstanding sections 1 through 6, a journalist, 

8 any person who employs or has an independent contract 

9 with a journalist, or a communication service provider has 

10 no privilege against disclosure of any information, record, 

11 document, or item obtained as the result of the eyewitness 

12 observations of criminal conduct or commitment of crimi13 nal or tortious conduct by the journalist, including any 

14 physical evidence or visual or audio recording of the ob15 served conduct, if a court determines by clear and con16 vincing evidence that the party seeking to compel disclo17 sure under this section has exhausted reasonable efforts 

18 to obtain the information from alternative sources. This 

19 section does not apply if the alleged criminal or tortious 

20 conduct is the act of communicating the documents or in21 formation at issue. 

22 SEC. 8. EXCEPTION TO PREVENT DEATH OR SUBSTANTIAL 

23 BODILY INJURY. 

24 Notwithstanding sections 1 through 6, a journalist, 

25 any person who employs or has an independent contract 


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1 with a journalist, or communication service provider has 

2 no privilege against disclosure of any information to the 

3 extent such information is reasonably necessary to stop 

4 or prevent reasonably certain— 

5 (1) death; or 

6 (2) substantial bodily harm. 

7 SEC. 9. EXCEPTION FOR NATIONAL SECURITY INTEREST. 

8 (a) IN GENERAL.—Notwithstanding sections 1 

9 through 6, a journalist, any person who employs or has 

10 an independent contract with a journalist, or communica11 tion service provider has no privilege against disclosure of 

12 any records, communication data, documents, information, 

13 or items described in sections 4(a), 5(a), or 6(a) sought 

14 by an attorney for the United States by subpoena, court 

15 order, or other compulsory process, if a court has provided 

16 the journalist, or any person who employs or has an inde17 pendent contract with a journalist, notice and an oppor18 tunity to be heard, and determined by clear and convincing 

19 evidence, that— 

20 (1) disclosure of information identifying the 

21 source is necessary to prevent an act of terrorism or 

22 to prevent significant and actual harm to the na23 tional security, and the value of the information that 

24 would be disclosed clearly outweighs the harm to the 


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1 public interest and the free flow of information that 

2 would be caused by compelling the disclosure; or 

3 (2) in a criminal investigation or prosecution of 

4 an unauthorized disclosure of properly classified 

5 Government information by an employee of the 

6 United States, such unauthorized disclosure has se7 riously damaged the national security, alternative 

8 sources of the information identifying the source 

9 have been exhausted, and the harm caused by the 

10 unauthorized disclosure of properly classified Gov11 ernment information clearly outweighs the value to 

12 the public of the disclosed information. 

13 (b) RULE OF CONSTRUCTION.—Nothing in this Act 

14 shall be construed to limit any authority of the Govern15 ment under the Foreign Intelligence Surveillance Act (50 

16 U.S.C. 1801 et seq.). 

17 SEC. 10. JOURNALIST’S SOURCES AND WORK PRODUCT 

18 PRODUCED WITHOUT PROMISE OR AGREE19 MENT OF CONFIDENTIALITY. 

20 Nothing in this Act shall supersede, dilute, or pre21 clude any law or court decision compelling or not compel22 ling disclosure by a journalist, any person who employs 

23 or has an independent contract with a journalist, or a 

24 communications service provider of— 


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1 (1) information identifying a source who pro2 vided information without a promise or agreement of 

3 confidentiality made by the journalist while acting in 

4 a professional newsgathering capacity; or 

5 (2) records, communication data, documents, or 

6 information obtained without a promise or agree7 ment that such records, communication data, docu8 ments, or information would be confidential. 

Æ 


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