II 

109TH CONGRESS 

1ST SESSION S. 340 

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 SENATE OF THE UNITED STATES 

FEBRUARY 9, 2005 

Mr. LUGAR introduced the following bill; which was read twice and 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 2005’’. 

6 SEC. 2. CONDITIONS FOR COMPELLED DISCLOSURE. 

7 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—No 

8 Federal entity may compel a covered person to testify or 
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1 produce any document in any proceeding or in connection 

2 with any issue arising under Federal law unless a court 

3 determines by clear and convincing evidence, after pro4 viding notice and an opportunity to be heard to the cov5 ered person— 

6 (1) that the entity has unsuccessfully attempted 

7 to obtain such testimony or document from all per8 sons from which such testimony or document could 

9 reasonably be obtained other than a covered person; 

10 and 

11 (2) that— 

12 (A) in a criminal investigation or prosecu13 tion, based on information obtained from a per14 son other than a covered person— 

15 (i) there are reasonable grounds to be16 lieve that a crime has occurred; and 

17 (ii) the testimony or document sought 

18 is essential to the investigation, prosecu19 tion, or defense; or 

20 (B) in a matter other than a criminal in21 vestigation or prosecution, based on information 

22 obtained from a person other than a covered 

23 person, the testimony or document sought is es24 sential to a dispositive issue of substantial im25 portance to that matter. 
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1 (b) LIMITATIONS ON CONTENT OF INFORMATION.— 

2 The content of any testimony or document that is com3 pelled under subsection (a) shall, to the extent possible— 

4 (1) be limited to the purpose of verifying pub5 lished information or describing any surrounding cir6 cumstances relevant to the accuracy of such pub7 lished information; and 

8 (2) be narrowly tailored in subject matter and 

9 period of time covered. 

10 SEC. 3. COMMERCIAL OR FINANCIAL INFORMATION. 

11 The provisions of section 2 do not apply to a request 

12 by a Federal entity for any testimony or document that 

13 consists of only commercial or financial information unre14 lated to newsgathering or news and information dissemi15 nation by a covered person. 

16 SEC. 4. COMPELLED DISCLOSURE PROHIBITED. 

17 Notwithstanding any provision of section 2, in any 

18 proceeding or in connection with any issue arising under 

19 Federal law, no Federal entity may compel a covered per20 son to disclose— 

21 (1) the identity of a source of information— 

22 (A) from whom the covered person ob23 tained information; and 

24 (B) who the covered person believes to be 

25 a confidential source; or 
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1 (2) any information that could reasonably be 

2 expected to lead to the discovery of the identity of 

3 such a source. 

4 SEC. 5. COMPELLED DISCLOSURE FROM THIRD PARTIES. 

5 (a) CONDITIONS FOR COMPELLED DISCLOSURE.— 

6 The provisions of sections 2, 3, and 4 shall apply to any 

7 testimony or document that a Federal entity seeks from 

8 a third party if such testimony or document consists of 

9 any record, information, or other communication that re10 lates to a business transaction between such third party 

11 and a covered person. Such record, information, or other 

12 communication includes any telephone record or other 

13 record held by a telecommunications service provider, 

14 Internet service provider, or operator of an interactive 

15 computer service for a business purpose. 

16 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV17 ERED PERSONS.—A court may compel the testimony or 

18 disclosure of a document under this section only after the 

19 party seeking such a document provides the covered per20 son who is a party to the business transaction described 

21 in subsection (a)— 

22 (1) notice of the subpoena or other compulsory 

23 request for such testimony or disclosure from the 

24 third party not later than the time at which such 

25 subpoena or request is issued to the third party; and 
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1 (2) an opportunity to be heard before the court 

2 before the time at which the testimony or disclosure 

3 is compelled. 

4 (c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 

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

6 determines by clear and convincing evidence that such no7 tice would pose a substantial threat to the integrity of a 

8 criminal investigation. 

9 SEC. 6. ACTIVITIES NOT CONSTITUTING A WAIVER. 

10 The publication or dissemination of any testimony or 

11 document (or portion of such testimony or document) 

12 sought under section 2 shall not waive the requirements 

13 of such section. The publication or dissemination of any 

14 testimony or document (or portion of such testimony or 

15 document), identity, or information described in section 4 

16 shall not waive the prohibition described in such section. 

17 SEC. 7. DEFINITIONS. 

18 In this Act: 

19 (1) COVERED PERSON.—The term ‘‘covered 

20 person’’ means— 

21 (A) an entity that disseminates informa22 tion by print, broadcast, cable, satellite, me23 chanical, photographic, electronic, or other 

24 means and that— 
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1 (i) publishes a newspaper, book, mag2 azine, or other periodical; 

3 (ii) operates a radio or television 

4 broadcast station (or network of such sta5 tions), cable system, or satellite carrier, or 

6 a channel or programming service for any 

7 such station, network, system, or carrier; 

8 or 

9 (iii) operates a news agency or wire 

10 service; 

11 (B) a parent, subsidiary, or affiliate of 

12 such an entity; or 

13 (C) an employee, contractor, or other per14 son who gathers, edits, photographs, records, 

15 prepares, or disseminates news or information 

16 for such an entity. 

17 (2) DOCUMENT.—The term ‘‘document’’ means 

18 writings, recordings, and photographs, as those 

19 terms are defined by Federal Rule of Evidence 1001 

20 (28 U.S.C. App.). 

21 (3) FEDERAL ENTITY.—The term ‘‘Federal en22 tity’’ means an entity or employee of the judicial, 

23 legislative, or executive branch of the Federal Gov24 ernment with the power to issue a subpoena or pro25 vide other compulsory process. 
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1 (4) THIRD PARTY.—The term ‘‘third party’’ 

2 means a person other than a covered person. 

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