IB 

Union Calendar No. 229 

110TH CONGRESS 

1ST SESSION H. R. 2102 

[Report No. 110–370] 

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 2, 2007 

Mr. BOUCHER (for himself, Mr. PENCE, Mr. CONYERS, Mr. COBLE, Mr. 

YARMUTH, and Mr. WALDEN of Oregon) introduced the following bill; 

which was referred to the Committee on the Judiciary 

OCTOBER 10, 2007 

Additional sponsors: Mr. FLAKE, Mr. FORTUN ̃O, Mr. SHAYS, Mr. UDALL of 

New Mexico, Ms. JACKSON-LEE of Texas, Mr. COHEN, Mr. POE, Ms. 

BERKLEY, Mr. EMANUEL, Mr. MACK, Mr. TOWNS, Mr. LARSON of Connecticut, Ms. DELAURO, Mr. GONZALEZ, Ms. BALDWIN, Ms. ESHOO, 

Mrs. CAPPS, Ms. CASTOR, Mr. RADANOVICH, Mr. PUTNAM, Mr. 

MCCOTTER, Mr. BLUMENAUER, Mr. UPTON, Mr. FERGUSON, Mr. WALSH

of New York, Mr. REYNOLDS, Ms. ZOE LOFGREN of California, Mr. 

GENE GREEN of Texas, Mr. GUTIERREZ, Mr. COURTNEY, Mr. WALBERG, 

Mr. RUPPERSBERGER, Mr. KENNEDY, Mr. MURPHY of Connecticut, Mr. 

LAMPSON, Mr. MEEKS of New York, Mr. ROTHMAN, Mr. BUTTERFIELD, 

Mr. ORTIZ, Mr. DELAHUNT, Mr. PALLONE, Mr. AL GREEN of Texas, Mr. 

HASTINGS of Florida, Mr. DICKS, Ms. NORTON, Mr. WEXLER, Mr. 

MCCAUL of Texas, Mr. RYAN of Wisconsin, Mr. PAYNE, Mr. WOLF, Ms. 

SCHAKOWSKY, Mrs. NAPOLITANO, Ms. FALLIN, Mr. ENGLISH of Pennsylvania, Mr. DOYLE, Ms. WASSERMAN SCHULTZ, Mr. GARRETT of New 

Jersey, Mr. CARNAHAN, Mr. LEWIS of Kentucky, Mr. PLATTS, Mr. 

CUMMINGS, Ms. WATSON, Mr. COOPER, Mr. KUHL of New York, Mr. 

WU, and Mr. BLUNT

OCTOBER 10, 2007 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 


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[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on May 2, 2007] 

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 2007’’. 

6 SEC. 2. COMPELLED DISCLOSURE FROM COVERED PER7 SONS. 

8 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 

9 any matter arising under Federal law, a Federal entity 

10 may not compel a covered person to provide testimony or 

11 produce any document related to information obtained or 

12 created by such covered person as part of engaging in jour13 nalism, unless a court determines by a preponderance of 

14 the evidence, after providing notice and an opportunity to 

15 be heard to such covered person— 

16 (1) that the party seeking to compel production 

17 of such testimony or document has exhausted all reaVerDate Aug 31 2005 21:45 Oct 10, 2007 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6203 E:\BILLS\H2102.RH H2102

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1 sonable alternative sources (other than the covered 

2 person) of the testimony or document; 

3 (2) that— 

4 (A) in a criminal investigation or prosecu5 tion, based on information obtained from a per6 son other than the covered person— 

7 (i) there are reasonable grounds to be8 lieve that a crime has occurred; and 

9 (ii) the testimony or document sought 

10 is critical to the investigation or prosecu11 tion or to the defense against the prosecu12 tion; or 

13 (B) in a matter other than a criminal in14 vestigation or prosecution, based on information 

15 obtained from a person other than the covered 

16 person, the testimony or document sought is crit17 ical to the successful completion of the matter; 

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

19 sought could reveal the identity of a source of infor20 mation or include any information that could reason21 ably be expected to lead to the discovery of the iden22 tity of such a source, that— 

23 (A) disclosure of the identity of such a 

24 source is necessary to prevent an act of terrorism 

25 against the United States or its allies or other 


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1 significant and specified harm to national secu2 rity with the objective to prevent such harm; 

3 (B) disclosure of the identity of such a 

4 source is necessary to prevent imminent death or 

5 significant bodily harm with the objective to pre6 vent such death or harm, respectively; or 

7 (C) disclosure of the identity of such a 

8 source is necessary to identify a person who has 

9 disclosed— 

10 (i) a trade secret, actionable under sec11 tion 1831 or 1832 of title 18, United States 

12 Code; 

13 (ii) individually identifiable health in14 formation, as such term is defined in sec15 tion 1171(6) of the Social Security Act (42 

16 U.S.C. 1320d(6)), actionable under Federal 

17 law; or 

18 (iii) nonpublic personal information, 

19 as such term is defined in section 509(4) of 

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

21 6809(4)), of any consumer actionable under 

22 Federal law; and 

23 (4) that the public interest in compelling disclo24 sure of the information or document involved outVerDate Aug 31 2005 21:45 Oct 10, 2007 Jkt 059200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H2102.RH H2102

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1 weighs the public interest in gathering or dissemi2 nating news or information. 

3 (b) LIMITATIONS ON CONTENT OF INFORMATION.—The 

4 content of any testimony or document that is compelled 

5 under subsection (a) shall— 

6 (1) not be overbroad, unreasonable, or oppressive 

7 and, as appropriate, be limited to the purpose of 

8 verifying published information or describing any 

9 surrounding circumstances relevant to the accuracy of 

10 such published information; and 

11 (2) be narrowly tailored in subject matter and 

12 period of time covered so as to avoid compelling pro13 duction of peripheral, nonessential, or speculative in14 formation. 

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

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

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

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

19 raised in a State or Federal court. 

20 SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS 

21 SERVICE PROVIDERS. 

22 (a) CONDITIONS FOR COMPELLED DISCLOSURE.— 

23 With respect to testimony or any document consisting of 

24 any record, information, or other communication that re25 lates to a business transaction between a communications 


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

2 to such testimony or document if sought from the commu3 nications service provider in the same manner that such 

4 section applies to any testimony or document sought from 

5 a covered person. 

6 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV7 ERED PERSONS.—A court may compel the testimony or dis8 closure of a document under this section only after the party 

9 seeking such a document provides the covered person who 

10 is a party to the business transaction described in sub11 section (a)— 

12 (1) notice of the subpoena or other compulsory 

13 request for such testimony or disclosure from the com14 munications service provider not later than the time 

15 at which such subpoena or request is issued to the 

16 communications service provider; and 

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

18 before the time at which the testimony or disclosure 

19 is compelled. 

20 (c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 

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

22 involved determines by clear and convincing evidence that 

23 such notice would pose a substantial threat to the integrity 

24 of a criminal investigation. 


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1 SEC. 4. DEFINITIONS. 

2 In this Act: 

3 (1) COMMUNICATIONS SERVICE PROVIDER.—The 

4 term ‘‘communications service provider’’— 

5 (A) means any person that transmits infor6 mation of the customer’s choosing by electronic 

7 means; and 

8 (B) includes a telecommunications carrier, 

9 an information service provider, an interactive 

10 computer service provider, and an information 

11 content provider (as such terms are defined in 

12 sections 3 and 230 of the Communications Act of 

13 1934 (47 U.S.C. 153, 230)). 

14 (2) COVERED PERSON.—The term ‘‘covered per15 son’’ means a person who, for financial gain or liveli16 hood, is engaged in journalism and includes a super17 visor, employer, parent, subsidiary, or affiliate of 

18 such covered person. Such term shall not include— 

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

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

21 defined in section 101 of the Foreign Intelligence 

22 Surveillance Act of 1978 (50 U.S.C. 1801); or 

23 (B) any organization designated by the Sec24 retary of State as a foreign terrorist organiza25 tion in accordance with section 219 of the Immi26 gration and Nationality Act (8 U.S.C. 1189). 


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

2 writings, recordings, and photographs, as those terms 

3 are defined by Federal Rule of Evidence 1001 (28 

4 U.S.C. App.). 

5 (4) FEDERAL ENTITY.—The term ‘‘Federal enti6 ty’’ means an entity or employee of the judicial or ex7 ecutive branch or an administrative agency of the 

8 Federal Government with the power to issue a sub9 poena or issue other compulsory process. 

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

11 means the gathering, preparing, collecting, 

12 photographing, recording, writing, editing, reporting, 

13 or publishing of news or information that concerns 

14 local, national, or international events or other mat15 ters of public interest for dissemination to the public. 


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Union Calendar No. 229 

110TH CONGRESS 

1ST SESSION H. R. 2102 

[Report No. 110

–370] 

A BILL 

To maintain the free flow of information to the 

persons connected with the news media. compelled disclosure of information by certain public by providing conditions for the federally 

OCTOBER 10, 2007 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


rwilkins on PROD1PC63 with BILLS