II 

109TH CONGRESS 

1ST SESSION S. 1419 

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 

JULY 18, 2005 

Mr. LUGAR (for himself, Mr. DODD, Mr. NELSON of Florida, Mr. JEFFORDS, 

and Mr. LAUTENBERG) 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.—A 

8 Federal entity may not compel a covered person to testify 
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1 or produce any document in any proceeding or in connec2 tion with any issue arising under Federal law unless a 

3 court determines by clear and convincing evidence, after 

4 providing notice and an opportunity to be heard to the 

5 covered person— 

6 (1) that the party seeking to compel production 

7 of such testimony or document has unsuccessfully 

8 attempted to obtain such testimony or document 

9 from all persons from which such testimony or docu10 ment could reasonably be obtained other than a cov11 ered person; 

12 (2) that— 

13 (A) in a criminal investigation or prosecu14 tion, based on information obtained from a per15 son other than a covered person— 

16 (i) there are reasonable grounds to be17 lieve that a crime has occurred; and 

18 (ii) the testimony or document sought 

19 is essential to the investigation, prosecu20 tion, or defense; or 

21 (B) in a matter other than a criminal in22 vestigation or prosecution, based on information 

23 obtained from a person other than a covered 

24 person, the testimony or document sought is es-
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1 sential to a dispositive issue of substantial im2 portance to that matter; and 

3 (3) in any matter in which the testimony or 

4 document sought could reveal the identity of a 

5 source of information or include any information 

6 that could reasonably be expected to lead to the dis7 covery of the identity of such a source, that— 

8 (A) disclosure of the identity of such a 

9 source is necessary to prevent imminent and ac10 tual harm to national security; 

11 (B) compelled disclosure of the identity of 

12 such a source would prevent such harm; and 

13 (C) the harm sought to be redressed by re14 quiring disclosure clearly outweighs the public 

15 interest in protecting the free flow of informa16 tion. 

17 (b) LIMITATIONS ON CONTENT OF INFORMATION.—

18 The content of any testimony or document that is com19 pelled under subsection (a) shall, to the extent possible— 

20 (1) be limited to the purpose of verifying pub21 lished information or describing any surrounding cir22 cumstances relevant to the accuracy of such pub23 lished information; and 

24 (2) be narrowly tailored in subject matter and 

25 period of time covered. 
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1 SEC. 3. COMPELLED DISCLOSURE PERMITTED. 

2 Notwithstanding any provision of section 2, in any 

3 proceeding or in connection with any issue arising under 

4 Federal law, a Federal entity may compel a covered person 

5 to produce any testimony or document that consists only 

6 of commercial or financial information that is not related 

7 to news gathering or the dissemination of news and infor8 mation by the covered person. 

9 SEC. 4. COMPELLED DISCLOSURE FROM THIRD PARTIES. 

10 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—

11 Section 2 shall apply to any testimony or document that 

12 a third party or a Federal entity seeks from a communica13 tions service provider if such testimony or document con14 sists of any record, information, or other communication 

15 that relates to a business transaction between a commu16 nications service provider and a covered person. 

17 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV18 ERED PERSONS.—A court may compel the testimony or 

19 disclosure of a document under this section only after the 

20 party seeking such a document provides the covered per21 son who is a party to the business transaction described 

22 in subsection (a)— 

23 (1) notice of the subpoena or other compulsory 

24 request for such testimony or disclosure from the 

25 communications service provider not later than the 
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1 time at which such subpoena or request is issued to 

2 the communications service provider; and 

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

4 before the time at which the testimony or disclosure 

5 is compelled. 

6 (c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 

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

8 determines by clear and convincing evidence that such no9 tice would pose a substantial threat to the integrity of a 

10 criminal investigation. 

11 SEC. 5. DEFINITIONS. 

12 In this Act: 

13 (1) COMMUNICATIONS SERVICE PROVIDER.—

14 The term ‘‘communications service provider’’— 

15 (A) means any person that transmits infor16 mation of the customer’s choosing by electronic 

17 means; and 

18 (B) includes a telecommunications carrier, 

19 an information service provider, an interactive 

20 computer service provider, and an information 

21 content provider (as such terms are defined in 

22 the sections 3 and 230 of the Communications 

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

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

25 person’’ means— 
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1 (A) an entity that disseminates informa2 tion by print, broadcast, cable, satellite, me3 chanical, photographic, electronic, or other 

4 means and that— 

5 (i) publishes a newspaper, book, mag6 azine, or other periodical in print or elec7 tronic form; 

8 (ii) operates a radio or television 

9 broadcast station (or network of such sta10 tions), cable system, or satellite carrier, or 

11 a channel or programming service for any 

12 such station, network, system, or carrier; 

13 or 

14 (iii) operates a news agency or wire 

15 service; 

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

17 such an entity to the extent that such parent, 

18 subsidiary, or affiliate is engaged in news gath19 ering or the dissemination of news and informa20 tion; or 

21 (C) an employee, contractor, or other per22 son who gathers, edits, photographs, records, 

23 prepares, or disseminates news or information 

24 for such an entity. 
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1 (3) DOCUMENT.—The term ‘‘document’’ means 

2 writings, recordings, and photographs, as those 

3 terms are defined by Federal Rule of Evidence 1001 

4 (28 U.S.C. App.). 

5 (4) FEDERAL ENTITY.—The term ‘‘Federal en6 tity’’ means an entity or employee of the judicial or 

7 executive branch or an administrative agency of the 

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

10 (5) THIRD PARTY.—The term ‘‘third party’’ 

11 means a person other than a covered person.

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