85–431 

Calendar No. 238 

113TH CONGRESS REPORT " ! SENATE 1st Session 113–118 

FREE FLOW OF INFORMATION ACT OF 2013 

NOVEMBER 6, 2013.—Ordered to be printed 

Mr. LEAHY, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL AND MINORITY VIEWS 

[To accompany S. 987] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to which was referred the bill 

(S. 987), 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, having 

considered the same, reports favorably thereon, with amendment, 

and recommends that the bill, as amended, do pass. 

CONTENTS 

Page 

I. Purpose of the Free Flow of Information Act of 2013 ................................. 2 

II. Background and Need for the Free Flow of Information Act of 2013 3 

III. History of the Bill and Committee Consideration ....................................... 12 

IV. Section-by-Section Summary of the Bill ...................................................... 16 

V. Congressional Budget Office Cost Estimate ................................................ 22 

VI. Regulatory Impact Evaluation ...................................................................... 24 

VII. Conclusion ...................................................................................................... 24 

VIII. Additional and Minority Views ..................................................................... 25 

IX. Changes to Existing Law Made by the Bill, as Reported ........................... 144 


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I. PURPOSE OF THE FREE FLOW OF INFORMATION ACT OF 2013 

Senators Schumer and Graham introduced the Free Flow of Information Act, S. 987, to create a qualified privilege for journalists 

to withhold information that they obtain under the promise of confidentiality. This bill strikes a balance between journalists’ need to 

maintain confidentiality in order to preserve the public’s right to 

know about important issues with the necessity of effective law enforcement. The bill provides standards that would govern when a 

person or organization that is covered by the Act may be compelled 

to reveal the identity of a confidential source or information that 

was provided under a promise of confidentiality. These standards 

would apply to governmental and private entities in both civil and 

criminal investigations and cases. 

Unlike some States that have created an absolute privilege 

against compelling journalists to turn over protected material, this 

bill creates a qualified privilege. Under this bill, a journalist who 

possesses information that was provided under the promise of confidentiality might—in certain circumstances—be compelled by a 

court to produce the source of the information. Those circumstances 

would depend on whether the litigant’s demand for information 

arises in a civil, criminal, or other context, and whether it relates 

to an investigation or case implicating national security or classified material. 

In certain situations, the Act’s protections categorically do not 

apply, and the journalist will be required to turn over protected information. The Act does not apply to information obtained as a result of the journalist’s eyewitness observation of an alleged crime, 

or as a result of alleged criminal conduct by the journalist. The 

only crime to which this section does not apply is when the communication of the material is itself the alleged criminal conduct. The 

Act also does not apply when the disclosure of confidential-source 

information is reasonably necessary to stop, prevent, or mitigate a 

specific case of death, kidnapping, substantial bodily injury, certain 

offenses against minors, or incapacitation of critical infrastructure. 

Further, the Act contains specific provisions to ensure that law 

enforcement maintains access to needed national security-related 

information, an issue that is unique to the Federal Government 

and not addressed in any state media shield law. 

In cases that involve alleged unauthorized disclosures of properly 

classified information (‘‘leaks’’), the Act allows a court to compel the 

disclosure of confidential-source information where disclosure 

would assist in preventing or mitigating an act of terrorism or acts 

that are reasonably likely to cause significant and articulable harm 

to national security. However, the potential for a subsequent unlawful disclosure of information by the source sought to be identified is not sufficient to establish likely significant and articulable 

harm to national security. In cases that do not involve a leak of 

properly classified information, the Act allows the court to compel 

the disclosure of confidential-source information in order to identify 

the perpetrator of an act of terrorism or acts that have caused, or 

are reasonably likely to cause, significant and articulable harm to 

national security. 


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1See generally, Carey Lening & Henry Cohen, Journalists’ Privilege to Withhold Information 

in Judicial and Other Proceedings: State Shield Statutes, Congressional Research Service Report 

for Congress, Mar. 8, 2005. 2See Paul Marcus, The Reporter’s Privilege: An Analysis of the Common Law, Branzburg v. 

Hayes, and Recent Statutory Developments, Faculty Publications Paper 569 (1983), available at 

http://scholarship.law.wm.edu/facpubs/569. 

II. BACKGROUND AND THE NEED FOR THE FREE FLOW OF

INFORMATION ACT OF 2013 

A free press is vital to a healthy democracy, and a journalist’s 

ability to effectively gather information is, in turn, central to a free 

press. However, there is no Federal statute or consistent body of 

common law that provides clear rules about when a journalist must 

disclose his or her confidential source information. The absence of 

a uniform Federal standard for protecting confidential source information has resulted in a confusing collage of Federal court decisions on the issue and has discouraged informants and whistleblowers from coming forward with important information regarding, for example, corporate wrongdoing or Government fraud, 

abuse, or mismanagement. The Free Flow of Information Act is 

needed to clarify the law in this area and to provide clear guidance 

to courts, journalists, and Federal law enforcement regarding when 

the disclosure of confidential source information can be compelled. 

A. THE STATES’ RECOGNITION OF THE NEED FOR MEDIA SHIELD LAWS

The universal recognition of the need for a media shield law is 

demonstrated by the fact that 48 States and the District of Columbia recognize protections for the press through their constitutions, 

legislation, and in common law.1 Specifically, 39 States plus the 

District of Columbia have passed a media shield statute in some 

form, and nine States have recognized a privilege in their state 

constitutions or common law. While 10 States have created an absolute privilege that protects journalists in all circumstances, many 

states’ shield laws have adopted a balancing test—weighing the interests of law enforcement against the public’s interest in the free 

flow of information. 

The widespread need for state media shield statutes sparked 

commentary as early as 1970, as the seminal case of Branzburg v. 

Hayes, ultimately decided in 1972 and discussed in more detail 

infra, made its way through the Federal courts. In Branzburg, the 

United States Supreme Court held that there is no right under the 

First Amendment to the U.S. Constitution for a journalist to withhold confidential information in a grand jury proceeding. The Court 

noted, however, that although the Constitution does not require a 

privilege for journalists in the grand jury context, ‘‘Congress has 

freedom to determine whether a statutory newsman’s privilege is 

necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned 

and, equally important, to refashion those rules as experience from 

time to time may dictate.’’ Branzburg v. Hayes, 408 U.S. 665, 706 

(1972). 

After the Branzburg decision, the call for state media shield laws 

issued loudly and was heeded by the majority of States in the decade that followed.2 As one commentator wrote at the time, ‘‘[I]t is 

important to recognize a qualified privilege for reporters in both 

criminal and civil cases. It is essential that the First Amendment 


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3See id. at 4. 4The Hawaii legislature passed a media shield law in 2008, but it expired in June 2013. 

5Morgan v. State, 337 So.2d 951, 956 (Fl. Sup. Ct. 1976) (quashing a grand jury subpoena 

where the investigation involved a grand jury leak, not the investigation of a crime itself). 6 According to data provided to the Committee by the Department of Justice, the Department 

has issued ‘‘source-related’’ subpoenas in 12 cases between January 2007 and September 2013. 

The Department defines ‘‘source-related’’ subpoenas to included subpoenas and court orders 

(issued pursuant to section 2703(d) of the Electronic Communications Privacy Act) that seek information that could reveal or disclose the identity of a confidential source. According to the Department, the Attorney General has authorized the issuance of subpoenas to members of the 

news media seeking information about the identify of a source of leaks of law enforcement information, where the news media did not maintain that the individual was a confidential source, 

on two occasions since 2007. The Attorney General has also authorized the use of a subpoena 

or 2703(d) court order to identify a person who used, or attempted to use, the news media to 

threaten the health or safety of a public official on three occasions since 2007, according to the 

data provide by Department of Justice. 7 In 2001, the Bush Administration asserted that between 1991 and 2001, the Attorney General authorized 17 subpoenas to the media for confidential source information in criminal cases. 

See Letter from Daniel J. Bryant, Assistant Attorney General, Department of Justice, to the 

Hon. Charles E. Grassley, United States Senate, Nov. 28, 2001. This would suggest that only 

two more had been issued after 2001, although public records reveal that at least 12 reporters 

were subpoenaed for confidential information between 2001 and 2007. 

interests of the press in gathering and disseminating information 

be supported through the privilege avenue.’’ 3

Today, every State court system except Hawaii 4 and Wyoming is 

governed by a constitutional, legislative or common law protection 

for journalists. Collectively, these States have recognized that the 

press plays a legally enshrined role in maintaining an informed 

citizenry, and Government intrusion upon the media must be balanced against the values inherent in the unfettered operation of 

the press. As the State Supreme Court of Florida recognized before 

that State enacted a legislative protection for journalists, ‘‘The 

First Amendment is clearly implicated when Government moves 

against a member of the press because of what she has caused to 

be published.’’ 5

Drawing from this lengthy history of carefully calibrated state 

protections for journalists, the Free Flow of Information Act similarly adopts a series of balancing tests in order to address the 

needs of law enforcement and civil litigants on one hand, and the 

freedom of the press and the public’s right to know, on the other. 

B. INCREASE IN FEDERAL SUBPOENAS TO JOURNALISTS AND

CONGRESS’ RESPONSE IN THE FREE FLOW OF INFORMATION ACT

This bill responds, in part, to an increase in the frequency with 

which subpoenas are issued to journalists by Federal entities. 

There is clear evidence that the number of subpoenas continues to 

grow, despite a lack of consensus on the actual number. 

In a September 26, 2007, views letter to the Judiciary Committee, the Department of Justice (‘‘DOJ’’) stated: ‘‘Since 1991, the 

Department has approved the issuance of subpoenas to reporters 

seeking confidential source material in only 19 cases.’’ 6 However, 

there is some doubt as to whether this number is accurate.7 Assuming for the sake of argument that this number is accurate, it 

does not fully capture the burgeoning problem of subpoenas to reporters for the following reasons: First, it does not take into account subpoenas from special prosecutors. For example, there were 

at least 10 subpoenas issued in the Valerie Plame CIA leak case 

that were not counted among the 19 subpoenas cited by the DeVerDate Mar 15 2010 03:56 Nov 09, 2013 Jkt 085431 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR118.XXX SR118

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8See, e.g., Susan Schmidt, ‘‘Reporters’ Files Subpoenaed,’’ THE WASHINGTON POST, A16, September 10, 2004, available at http://www.washingtonpost.com/wp-dyn/articles/A9890- 

2004Sep9.html. 9See Rachel Smolkin, ‘‘Under Fire,’’ American Journalism Review, February/March 2005, 

available at http://www.ajr.org/article.asp?id=3810. 10Letter from Principal Deputy Attorney General Peter J. Kadzik to Hon. Bob Goodlatte, June 

4, 2013. 

partment because they were issued by Special Prosecutor Patrick 

Fitzgerald.8

Second, the number provided by the Department of Justice in 

2007 does not take into account Federal subpoenas for confidential 

information in civil cases. Federal courts have recently started 

compelling journalists to disclose the identities of confidential 

sources to civil litigants seeking monetary damages—a break from 

a nearly 50-year precedent of not requiring journalists to disclose 

confidential sources in civil cases to which they are not parties. Recently, journalists have been subpoenaed in high-profile civil cases, 

such as in the Privacy Act lawsuit against the Government brought 

by Steven Hatfill as ‘‘a person of interest’’ in the 2001 anthrax investigations, in which at least a dozen subpoenas were issued to reporters, as well as in the Wen Ho Lee Privacy Act lawsuit that resulted in six reporters being subpoenaed.9

Indeed, according to one published empirical study, a survey of 

newsrooms revealed that in 2006 alone, 34 Federal subpoenas were 

issued for confidential information, with an estimated 21 of these 

specifically seeking information that would identify a confidential 

source. Statistical extrapolation of the data in this study suggests 

that the total number of Federal subpoenas in 2006 for confidential 

information was likely 67, and that 41 of those sought information 

that would identify a confidential source. 

The Justice Department’s statistics also fail to account for the recent increase in Federal subpoenas related to leak investigations. 

Indeed, the need for the Free Flow of Information Act has never 

been more pressing than now. 

In May 2013, the Associated Press (‘‘AP’’) learned that the Justice Department had secretly subpoenaed AP call records from 

April and May 2012, affecting more than 100 journalists and covering more than 20 phone lines, including work, home, and cell 

phones; bureaus in three different cities (New York City; Hartford, 

CT; and Washington, DC); and the AP line at the House of Representatives press gallery. Because the AP received no notice before 

the Justice Department obtained its records, it could not challenge 

the subpoena in court. As for why negotiations with the AP were 

not initially pursued, the Department stated generally, ‘‘Although 

the ongoing nature of the investigation prevents us from sharing 

additional details about this case, there are a number of reasons— 

depending on the circumstances of a given case—that may lead the 

Department to refrain from negotiating with a media organization 

before seeking a subpoena for telephone toll records. For example, 

through the negotiation process, the potential target (the leaker) 

could become aware of the investigation, its focus, and its scope, 

and seek to destroy evidence, create a false narrative as a defense, 

or otherwise obstruct the investigation.’’ 10

The investigation was related to the unauthorized disclosure of 

classified information in violation of the Espionage Act in connection with a May 7, 2012, story by the AP about how the CIA 


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11Statement from Gary Pruitt, President and CEO of The Associated Press, May 14, 2013, 

available at: http://blog.ap.org/2013/05/13/ap-responds-to-intrusive-doj-seizure-of-journalistsphone-records/. 12See United States v. Sterling, No. 11–5028, Order, October 15, 2013. 

thwarted a second attempted underwear bomb plot. According to 

AP President and CEO Gary Pruitt, ‘‘We held that story until the 

government assured us that the national security concerns had 

passed. Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled.’’ 11 However, the Justice 

Department maintains that the publication of the story did grave 

harm to national security and that the Department had only informed the AP that concerns over the physical safety of the source 

had been alleviated prior to the publication. 

Also in May 2013, it was revealed that the Justice Department 

had seized the content of Fox News reporter James Rosen’s Gmail 

account in 2010. In obtaining the warrant, the Justice Department 

had convinced a judge that there was probable cause to believe that 

Rosen was an ‘‘an aider and abettor and/or co-conspirator’’ to a violation of the Espionage Act. The Justice Department had also subpoenaed Rosen’s phone records and State Department security 

badge access records. These efforts were in support of the prosecution of former State Department official Stephen Jin-Woo Kim, who 

was charged under the Espionage Act for allegedly sharing with 

Rosen that North Korea had planned to respond to new UN sanctions with another nuclear test. 

James Risen, a book author and New York Times investigative 

reporter, was subpoenaed three times in the Espionage Act prosecution of former CIA official Jeffrey Sterling, who was accused of 

being the source for a chapter in Risen’s book, ‘‘State of War: The 

Secret History of the CIA and the Bush Administration,’’ about a 

failed CIA operation against Iran’s nuclear program. First, a Federal grand jury issued a subpoena under the Bush Administration, 

but the grand jury’s term expired and Risen was not forced to testify about his source. A second grand jury subpoenaed Risen under 

the Obama Administration, but the Federal judge presiding over 

the case granted Risen’s motion to quash. Finally, the Federal prosecutor issued a trial subpoena. The judge again quashed the subpoena, but her ruling was overturned in July 2013 by the U.S. 

Court of Appeals for the Fourth Circuit. Risen’s request for a rehearing en banc by the Court of Appeals was denied on October 15, 

2013.12

At the very least, regardless of whether the Free Flow of Information Act would have affected the final outcome (the production 

of material from the covered journalist or a third party) in any of 

these scenarios, the Act would have provided for a predictable balancing test—a test that would be administered by an Article III 

judge. 

In sum, Federal subpoenas for confidential source information 

come from a number of parties, including the Justice Department 

and special prosecutors appointed by the Justice Department, as 

well as civil litigants in Federal courts where Federal judges make 

determinations on motions to quash such subpoenas. A Federal 

shield law is needed in order to protect against a return to the late 


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13See, e.g., Lucy A. Daglish & Casey Murray, De ́ja` Vu All Over Again: How A Generation of 

Gains in Federal Reporters’ Privilege Is Being Reversed, 29 Univ. Ark. Little Rock L. Rev. 13 

(2006) (explaining the history of Federal subpoenas to reporters). 14 8 Wigmore, Evidence 2191, 2192, 2285 (McNaughton rev. 1961). 

1960s, when subpoenas to reporters had become not only frequent 

but virtually de rigueur.13

C. HOW THE FREE FLOW OF INFORMATION ACT ADDRESSES CURRENT

PROBLEMS

In order to provide predictable guidelines in Federal court and 

curb the use of subpoenas (or other compulsory process) to covered 

journalists, this bill provides for the following clear rules. 

In criminal cases, the bill provides that the party seeking to compel disclosure must first exhaust all reasonable alternative sources 

of the protected information; that there must be reasonable 

grounds to believe that a crime has occurred; that there must be 

reasonable grounds to believe that the information is essential to 

the investigation, prosecution, or defense of a crime or criminal 

case (from sources other than the journalist); that the Attorney 

General must certify that he, or she, has complied with the applicable regulations governing compelled disclosure from journalists; 

and finally, that the burden is on the covered journalist to show 

by clear and convincing evidence that forced disclosure of the confidential information would be contrary to the public interest. This 

language ensures that the court gives full force to the criminal justice system’s need for ‘‘every man’s evidence’’ 14 while taking account of the press’ need to function without undue governmental 

interference. 

In civil cases, the bill provides that disclosure may not be compelled unless the party seeking disclosure first exhausts all reasonable alternative sources of the protected information; that the protected information is essential to the resolution of the case; and 

that the party seeking disclosure demonstrates that ‘‘the interest in 

compelling disclosure clearly outweighs the public interest in gathering and disseminating the information or news at issue and 

maintaining the free flow of information.’’ This language ensures 

that the Act’s protections against disclosure in civil litigation are 

significantly stronger than under the Act’s analogous provisions 

governing criminal cases, and also stronger than the current protections that have been applied by Federal courts on an ad hoc 

basis. 

In cases involving alleged leaks of properly classified information, the bill allows the Government to obtain confidential source 

material from a covered journalist when it can show by a preponderance of the evidence that the information would ‘‘materially assist . . . in preventing or mitigating an act of terrorism or other 

acts that are reasonably likely to cause significant and articulable 

harm to national security.’’ Additionally, the potential for a subsequent unlawful disclosure of information by the source sought to be 

identified is not sufficient to establish likely significant and 

articulable harm to national security. In any other case that involves national security, the Government may obtain the information if it can show by a preponderance of the evidence that the information would ‘‘materially assist in preventing, mitigating, or 

identifying the perpetrator of an act of terrorism or other acts that 


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15See, e.g., Center for Int’l Env. Law v. Office of U.S. Trade Representative, 718 F.3d 899 (D.C. 

Cir. 2013). As evidenced by this and other cases, courts can and do routinely make decisions 

about the Government’s national security interest (as in state secrets cases) and classification 

decisions (as in Freedom of Information Act cases). 16 Contrary to the assertions made in the ‘‘Additional Views,’’ the Free Flow of Information 

Act will not interfere with legitimate law enforcement or national security investigations. First, 

the vast majority of the hypothetical and factual scenarios posited in the ‘‘Additional Views’’ did 

not, and would not, involve protected information obtained from covered journalists. Second, the 

remaining scenarios discussed in the Additional Views would likely have been capably handled 

in Section 5 of the Act. Finally, the authors of the Additional Views make internally contradictory arguments against the Act. It cannot be that the need for the bill is minimal because ‘‘subpoenas to journalists are rare,’’ and at the same time, argue that the enactment of the bill 

‘‘would seriously impede important criminal investigations and prosecutions.’’ In fact, as evidenced by the fact that every state except Hawaii and Wyoming has a reporters’ privilege in 

place, criminal enforcement has not historically been hampered by the presence of such a protection. The authors of the Additional Views do not discuss the myriad other tools at the disposal 

of law enforcement other than subpoenas to journalists who rely on confidential information. 

have caused or are reasonably likely to cause significant and 

articulable harm to national security.’’ If the Government is not 

able to make these showings in a national security case, the court 

would be required to apply the balancing test applicable to ordinary criminal cases as set forth in Section 2. 

In these cases, a Federal court shall give appropriate deference 

to a specific factual showing by the Federal government—something courts are accustomed to doing in analogous contexts, such 

as Freedom of Information Act cases.15

These balancing tests—coupled with the exceptions to the privilege that are also created by the bill—give generous berth for the 

Government to obtain the vital information that it needs in order 

to protect public safety, as well as for private litigants and criminal 

defendants to obtain information in appropriate circumstances.16

At the same time, these provisions prevent journalists from becoming the witnesses of choice in civil and criminal cases. 

D. THE CHILLING EFFECT OF THE CURRENT STATE OF THE LAW ON

THE FREE PRESS

Current uncertainty—exacerbated by well-publicized cases of reporters being held in contempt of court or turning over information 

that was subject to a promise of confidentiality—has risked creating a broad chilling effect. As William Safire, conservative columnist for the New York Times has explained, ‘‘the essence of 

newsgathering is this: if you don’t have sources you trust and who 

trust you, then you don’t have a solid story—and the public suffers 

for it.’’ Former Time magazine Editor Norman Pearlstine, in testimony before the Senate Judiciary Committee, stated that after 

Time Magazine complied with a court order and turned over notes 

of journalist Matt Cooper, Time lost valuable sources ‘‘who insisted 

that they no longer trusted the magazine and that they would no 

longer cooperate on stories.’’ 

More recently, and in light of the increase in Federal subpoenas 

described above, editors and reporters have noticed a renewed 

chilling effect that compelled disclosure of confidential sources has 

had on newsgathering. According to AP Chief Executive and President Gary Pruitt, ‘‘some of our long-trusted sources have become 

nervous and anxious about talking to us—even on stories that 

aren’t about national security.’’ Pruitt went on to say that ‘‘[i]n 

some cases, government employees that we once checked in with 


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17Lindy Royce-Bartlett, CNN, ‘‘Leak probe has chilled sources, AP exec says’’ (June 19, 2013), 

http://www.cnn.com/2013/06/19/politics/ap-leak-probe/index.html. 18 Joel G. Weinberg, ‘‘Supporting the First Amendment: A National Reporter’s Shield Law,’’ 

31 Seton Hall L.J. 149, 162 (2006). 19Letter in Support of S.987 (July 26, 2013), signed by A&E Television Networks, LLC; A.H. 

Belo Corporation; ABC Inc.; Advance Publications, Inc.; Allbritton Communications Co.; American Society of News Editors; Associated Press Media Editors; Association of Alternative 

Newsmedia; Association of American Publishers, Inc.; Below Corp.; California Newspaper Publishers Association; CBS Corporation; Center for Public Integrity; CNN; Cox Enterprises, Inc.; 

Cox Media Group; Daily News, LP; Dow Jones & Company, Inc.; E.W. Scripps; First Amendment; First Amendment Coalition of Arizona; First Amendment Project; Forbes Inc.; Fox News 

Network LLC; Fox Television Stations, Inc.; Fusion; Gannett Co., Inc.; LIN Media; McGraw Hill 

Financial, Inc.; McGraw-Hill Education; Media Law Resource Center; MP—The Association of 

Magazine Media; National Association of Broadcasters; National Cable & Television Association; 

National Geographic Society; National Newspapers Association; National Press Club; National 

Press Photographers Association; National Writers Union; NBCUniversal; News Corporation; 

Newspaper Association of America; North Jersey Media Group Incl.; NPR; Online News Association; Pennsylvania NewsMedia Association; POLITICO LLC; Radio Television Digital News Association; Raycom Media, Inc.; Regional Reporters Association; Reporters Committee for Freedom of the Press; Reuters; Society of Professional Journalists; Software and Information Industry Association; Stephens Media; Student Press Law Center; Texas Association of Broadcasters; 

Texas Press Association; The Associated Press; The Authors Guild; The McClatchy Company; 

The New York Times Company; The Newspaper Guild-CWA; The Newsweek/Daily Best Company LLC; The Washington Post; Time Inc.; Tribune Company; U.S. News & World Report; USA 

Today. 

regularly will no longer speak to us by phone and some are reluctant to meet in person.’’ 17

Historically, the use of subpoenas by the Federal Government 

has ebbed and flowed such that the use of subpoenas, even when 

legitimate, has the taint of politicization. As one scholar observed: 

Prior to the late 1960s and early 1970s, there were few 

cases in which either the government or private parties 

subpoenaed reporters. In the late 1960s and early 1970s, 

the government subpoenaed journalists with increased regularity, attributed to the rise of ‘‘left wing’’ groups that 

were perceived by the government as a threat to American 

society. Since Branzburg [v. Hayes], the volume of subpoenas directed at reporters has not subsided; rather, it 

has markedly increased.18

The Free Flow of Information Act would create more certainty for 

journalists, law enforcement, and confidential sources so that the 

free flow of information between journalists and their sources—and 

ultimately the public—is protected from unnecessary interference, 

and legitimate uses of compelled disclosure are preserved. 

As stated in a letter submitted by a broad coalition of media 

groups to the Committee in support of S. 987: ‘‘The press is the 

public’s watchdog charged with uncovering government and corporate abuses. Government surveillance of journalists creates a 

chilling effect in newsrooms and among potential sources, depriving 

the American people of important news and public accountability. 

The only way to limit this government overreach is through passage of a law that lays out clear rules for when the government can 

obtain information about journalists and their sources.’’ 19

E. STATUS OF THE CURRENT FEDERAL LAW

The current confusion regarding the scope of a Federal journalists’ privilege arose 41 years ago when the Supreme Court decided 

Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the Court 

held that the press’ First Amendment right to publish information 

does not include a right to keep information secret from a grand 


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20 In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004) (finding no privilege for documents 

prepared without the intent of public dissemination); McKevitt v. Pallasch, 339 F.3d 530, 532– 

33 (7th Cir. 2003) (finding no Federal common law reporter’s privilege); United States v. Smith, 135 F.3d 963, 968–69 (5th Cir. 1998) (holding that reporters do not enjoy a qualified reporter’s 

privilege protecting non-confidential work product); In re Shain, 978 F.2d 850, 852–53 (4th Cir. 

1992) (holding that absent evidence of governmental harassment or bad faith, reporters have 

no testimonial privilege different from any other citizen); In re Grand Jury Proceedings, 810 

F.2d 580, 584–86 (6th Cir. 1987) (finding no reporter’s privilege excusing their testimony before 

a grand jury); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006). 21 In re Grand Jury Proceedings, 5 F.3d 397, 402–03 (9th Cir. 1993) (finding a qualified reporter’s privilege protecting grand jury testimony where the investigation is instituted or conducted 

in bad faith); United States v. Caparole, 806 F.2d 1487, 1504 (11th Cir. 1986) (compelling production from reporters only upon proof that the information at issue is highly relevant, necessary for proper presentation of the case, and unavailable from other sources); United States 

v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (holding that defendants had not satisfied their burden 

of showing subpoenaed documents were highly material, relevant, necessary to the claim, and 

unavailable from other sources to overcome the reporter’s privilege); United States v. 

Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980) (extending a qualified reporter’s privilege to resource materials and unpublished materials). 22Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005) (applying a three-part balancing test to 

determine if information can be compelled from a reporter evaluating relevance, necessity to the 

case, and availability); Lee v. Dep’t of Justice, 413 F.3d 53, 60–61 (D.C. Cir. 2005) (finding a 

Federal reporter’s privilege but compelling production because the information sought went ‘‘to 

the heart’’ of the case and all other sources of the information had been ‘‘exhausted’’); Cusumano 

v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998) (employing a balancing test weighing the 

effects of disclosure on First Amendment interests and the free flow of information against the 

interest of the party seeking disclosure of the reporter’s information); LaRouche v. Nat’l Broadcasting Co., Inc., 780 F.2d 1134, 1139 (4th Cir. 1986) (adopting a balancing test for determining 

whether a reporter’s privilege will protect a confidential source-reporter relationship); United 

States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (drawing no distinction between civil and criminal cases when applying a balancing test to determine reporter’s privilege); Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980) (applying a three-part test to determine 

jury that is investigating a criminal matter. The Supreme Court 

also held that the common law did not exempt a reporter from 

every other citizen’s duty to provide information to a grand jury. 

The Court reasoned that just as newspapers and journalists are 

subject to the same laws and restrictions as other citizens, they are 

likewise subject to the same duty to provide information to a court 

as other citizens. However, Justice Powell, who joined the 5–4 majority, wrote a separate concurrence in which he explained that the 

Court’s holding was not an invitation for the Government to harass 

journalists. If a journalist could show that the grand jury investigation was being conducted in bad faith, she could ask the court to 

quash the subpoena. In the most influential part of his concurrence, Justice Powell indicated that courts might assess such 

claims on a case-by-case basis by balancing the freedom of the 

press against the obligation to give testimony relevant to criminal 

conduct. 

In the 41 years since Branzburg, the Federal courts have split 

on the question of when the balancing test set forth in Justice Powell’s concurrence creates a qualified privilege for journalists in the 

Federal system. 

With respect to Federal criminal cases, six circuits—the First, 

Fourth, Fifth, Sixth, Seventh and District of Columbia Circuits (the 

latter in the context of a grand jury subpoena)—have applied 

Branzburg so as not to allow journalists to invoke the First Amendment to withhold information absent governmental bad faith.20

Four other circuits—the Second, Third, Ninth, and Eleventh Circuits—recognize a qualified privilege, which requires courts to balance the freedom of the press against the obligation to provide testimony on a case-by-case basis.21

With respect to Federal civil cases, 9 of the 12 circuits apply a 

balancing test when deciding whether journalists must disclose 

confidential sources.22 One circuit affords journalists no privilege in 


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the scope of the privilege not to reveal the identity of a confidential source in civil suits addressing relevance, availability, and compelling interest in the information); Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979) (applying a three-part balancing test to determine whether a 

person seeking disclosure from a journalist has overcome the privilege by showing that the information is material, relevant and necessary to the party’s claims or defenses); Silkwood v. KerrMcGee Corp., 563 F.2d 433, 438 (10th Cir. 1977) (applying a balancing test evaluating relevancy, 

accessibility, and the consequences of granting disclosure against the qualified First Amendment 

privilege); Farr v. Pitchess, 522 F.2d 464, 469 (9th Cir. 1975) (applying a balancing test to determine reporter’s privilege weighing First Amendment interests against the interests in disclosure). 23McKevitt v. Pallasch, 339 F.3d 530, 532–533 (7th Cir. 2003) (finding no Federal reporter’s 

privilege). 24The Department of Justice first adopted a policy governing subpoenas to the news media 

on August 10, 1970. The policy was incorporated into the Code of Federal Regulations (50 C.F.R. 

50.10) on Oct. 16, 1973, and updated on Nov. 19, 1980. 25Department of Justice Report on Review of News Media Policies (July 12, 2013), available 

at http://www.justice.gov/iso/opa/resources/2202013712162851796893.pdf. 

any context.23 Two other circuits have yet to decide whether journalists have any privilege in civil cases. 

F. DEPARTMENT OF JUSTICE GUIDELINES AND THE FREE FLOW OF

INFORMATION ACT

For 43 years, the Department of Justice has had in place its own 

guidelines for determining when the production of information may 

be compelled from a journalist.24 These Guidelines require, inter 

alia, approval of the Attorney General before such material can be 

compelled; the exhaustion of alternative sources of information; and 

notice to the journalist when the journalist’s records are demanded 

from a third party. While the Guidelines do not have the force of 

law, they have informed the Free Flow of Information Act. Contrary to the assertions of the authors of the Additional Views, insofar as these Guidelines have been less than successful, such shortcomings stem not from their being ‘‘amorphous,’’ but from the lack 

of checks-and-balances on their application. 

Most notably, the Free Flow of Information Act incorporates the 

recent changes that were made to the Guidelines in the wake of 

the outcry over the investigations that involved the Associated 

Press and Fox News reporter James Rosen.25 These Guidelines revisions provide, inter alia, for a limit on the number of times that 

the Department can ask a court to delay, by 45-day increments, its 

obligation to notify a member of the press that the Department of 

Justice has sought that person’s records. The new Guidelines will 

ensure that only one extension can be granted, thus requiring the 

Department to notify covered journalists within 90 days. Additionally, the Department’s policies regarding the use of legal process to 

obtain information from, or records of, members of the news media 

will be revised to make clear that those principles apply to communication records of members of the news media that are stored or 

maintained by third parties. These changes are reflected in the 

Free Flow of Information Act as reported by the Committee. 

More generally, this Act will not dramatically affect the process 

that Department of Justice prosecutors must undergo to subpoena 

a journalist. Currently, prosecutors must seek Attorney General 

approval for such subpoenas pursuant to the Guidelines, and the 

Department uses a similar balancing test as that provided in the 

bill, weighing the importance of the press with the prosecution’s 

need for information, to determine whether to issue a subpoena. 

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26Letter from Attorney General Eric H. Holder, Jr., July 29, 2013; see also Letter from Attorney General Eric H. Holder and Director of National Intelligence Dennis C. Blair, November 

5, 2009. (See Appendix). 27The authors of the ‘‘Additional Views’’ rely exclusively for their support on letters written 

by members of law enforcement and the intelligence community before the bill was dramatically 

changed in 2009, and garnered the support of law enforcement and the intelligence community. 

In fact, even before 2008, the Act had earned the support of law enforcement. See Letter from 

41 State Attorneys General, June 23, 2008 (see Appendix). 

ence in the decision-making process. This Act also removes such 

decision-making from taking place behind closed doors to the open 

court room, allowing for more public scrutiny and accountability. 

There may be times, however, when such decisions have to be 

made by a Federal court in camera or under seal to protect national security. This Act does not alter the Department’s ability to 

request such protections or a Federal court’s ability to make such 

a decision. 

Indeed, Attorney General Eric H. Holder, Jr., wrote a letter in 

support of the Act that renewed his support of the bill as ‘‘strik[ing] 

a careful balance between safeguarding the freedom of the press 

and ensuring our nation’s security and the safety of the American 

people.’’ 26 The Attorney General expressed particular support for 

the expedited judicial review provisions, which ensure that the Department’s determinations are afforded speedy external review. 

These provisions cannot be enacted through guidelines, but rather 

‘‘require legislative action,’’ and therefore, merit the Department’s 

support for the Act.27

III. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

A. THE 109TH CONGRESS

Congress has grappled with the question of whether to establish 

a qualified privilege for journalists through Federal legislation for 

several years. During the 109th Congress, there were a number of 

efforts to craft a journalists’ privilege bill. On February 9, 2005, 

Senator Lugar introduced S. 340, the Free Flow of Information Act. 

On July 18, 2005, Senators Lugar, Dodd, Jeffords, Lautenberg and 

Nelson (FL) introduced a revised version of the Free Flow of Information Act (S. 1419). Senator Dodd introduced another journalists’ 

privilege bill, S. 369, but later chose to cosponsor S. 1419. The Free 

Flow of Information Act went through another set of revisions and 

on May 18, 2006, was introduced as S. 2831 by Senators Lugar, 

Specter, Dodd, Schumer and Graham. 

Although three hearings were held on the Free Flow of Information Act, the Judiciary Committee did not report the bill during the 

109th Congress. On July 20, 2005, the Committee held a hearing 

on ‘‘Reporters’ Privilege Legislation: Issues and Implications.’’ The 

following witnesses appeared at the hearing: The Hon. Richard G. 

Lugar, United States Senator (R–IN); The Hon. Christopher J. 

Dodd, United States Senator (D–CT); The Hon. Mike Pence, United 

States Representative (R–IN); Matthew Cooper, White House Correspondent, Time Magazine Inc.; Norman Pearlstine, Editor-inChief, Time Inc.; William Safire, Political Columnist, New York 

Times Company; Floyd Abrams, Partner, Cahill, Gordon & Reindel; 

Lee Levine, Founding Partner, Levine, Sullivan, Koch & Schulz; 

and Geoffrey R. Stone, Professor of Law, University of Chicago Law 

School. 


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On October 1, 2005, the Committee held a hearing entitled, ‘‘Reporters’ Privilege Legislation: An Additional Investigation of Issues.’’ 

The following witnesses appeared at the hearing: The Hon. Chuck 

Rosenberg, United States Attorney for the Southern District of 

Texas; Joseph E. diGenova, Founding Partner, diGenova and 

Toensing; Steven D. Clymer, Professor of Law, Cornell Law School; 

Judith Miller, Investigative Reporter and Senior Writer, The New 

York Times; David Westin, President, ABC News; Anne K. Gordon, 

Managing Editor, The Philadelphia Inquirer; and Dale Davenport, 

Editorial Page Editor, The Patriot News. 

On September 20, 2006, the Committee held a hearing entitled, ‘‘Reporters’ Privilege Legislation: Preserving Effective Federal Law 

Enforcement.’’ The following witnesses appeared at the hearing: 

Bruce A. Baird, Partner, Covington & Burling; Steven D. Clymer, 

Professor, Cornell Law School; Paul J. McNulty, Deputy Attorney 

General, United States Department of Justice; Theodore B. Olson, 

Partner, Gibson, Dunn & Crutcher; and Victor E. Schwartz, Partner, Shook, Hardy & Bacon. 

B. THE 110TH CONGRESS

On May 2, 2007, Senator Lugar introduced the Free Flow of Information Act of 2007, S. 1267. The bill had four original cosponsors: Senators Dodd, Graham, Domenici and Landrieu. It was later 

joined by Senator McCaskill (5/3/2007), Senator Lieberman (5/14/ 

2007), Senator Johnson (6/11/2007), Senator Salazar (6/22/2007), 

Senator Bayh (9/17/2007), Senator Leahy (9/20/2007) and Senator 

Specter (9/26/2007). The bill was placed on the agenda for the Judiciary Committee executive business meeting on September 20, 

2007. No further action on S. 1267 was taken. 

On September 10, 2007, S. 2035, Senator Specter introduced the 

Free Flow of Information Act of 2007, S. 2035. The bill had two 

original cosponsors: Senators Schumer and Lugar. It was later 

joined by Senator Graham (9/25/2007), Senator Dodd (9/26/2007) 

and Senator Leahy (10/17/2007). 

On September 27, 2007, Chairman Leahy placed the bill on the 

agenda for the Judiciary Committee’s executive business meeting. 

The Committee subsequently favorably reported the bill as amended by a roll call vote of 15–2, with 2 passes. The vote record is as 

follows: 

Tally: 15 Yeas, 2 Nays, 2 Pass 

Yeas (15): Leahy (D–VT), Specter (R–PA), Kennedy (D–MA), 

Hatch (R–UT), Biden (D–DE), Grassley (R–IA), Kohl (D–WI), Feinstein (D–CA), Feingold (D–WI), Graham (R–SC), Schumer (D–NY), 

Cornyn (R–TX), Durbin (D–IL), Cardin (D–MD), Whitehouse (D– 

RI) 

Nays (2): Kyl (R–AZ) Sessions (R–AL) 

Pass (2): Brownback (R–KS), Coburn (R–OK) 

C. THE 111TH CONGRESS

On February 13, 2009, Senators Specter, Schumer, Lugar and 

Graham again introduced the Free Flow of Information Act, S. 448. 

Other Senators joined as co-sponsors: Senator Kirsten E. Gillibrand 

(D–NY) (3/23/2009); Senator Claire McCaskill (3/23/2009); Senator 

Amy Klobuchar (3/30/2009); Senator Patty Murray (D–WA) (3/30/ 

2009) ; Senator Kay Hagan (D–NC) (5/18/2009); Senator Edward E. 


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Kaufman (11/5/2009); Senator Tom Udall (D–NM) (11/18/2009); 

Senator Patrick J. Leahy (D–VT) (12/14/2009); Senator Mary Landrieu (D–LA) (2/4/2010); Senator Johnny Isakson (R–GA) (3/4/ 

2010); and Senator Bernard Sanders (I–VT) (3/9/2010). 

The bill was first placed on the Judiciary Committee’s Executive 

Calendar on April 23, 2009. After negotiations between the bill’s 

sponsors and the federal law enforcement, intelligence, and defense 

communities, the bill was modified to further protect the Executive 

Branch’s ability to obtain needed information in certain delineated 

situations. The changes garnered the support of the Administration. This amended version that resulted was introduced by Senators Schumer and Specter in Committee and adopted by unanimous consent on November 19, 2009 (HEN09B24). The November 

19 version superseded two Schumer-Specter amendments that were 

introduced and adopted at earlier markups. 

The Committee subsequently favorably reported the bill as 

amended on December 10, 2009, by a roll call vote of 14–5. The 

vote record is as follows: 

Tally: 14 Yeas, 5 Nays 

Yeas (14): Leahy (D–VT), Kohl (D–WI), Hatch (R–UT), Feinstein 

(D–CA), Grassley (R–IA), Feingold (D–WI), Schumer (D–NY), Graham (R–SC), Cardin (D–MD), Whitehouse (D–RI), Klobuchar (D– 

MN), Kaufman (D–DE), Specter (D–PA), Franken (D–MN) 

Nays (5): Sessions (R–AL), Durbin (D–IL), Kyl (R–AZ), Cornyn 

(R–TX), Coburn (R–OK) 

D. THE 113TH CONGRESS

On May 16, 2013, Senators Schumer and Graham again introduced the Free Flow of Information Act, S. 987. Other Senators 

joined as co-sponsors of the bill: Senator Max Baucus (D–MT) (5/ 

21/2013); Senator Michael F. Bennet (D–CO) (5/21/2013); Senator 

Barbara Boxer (5/21/2013); Senator Maria Cantwell (D–WA) (5/21/ 

2013); Senator Tom Harkin (D–IA) (5/21/2013); Senator Amy Klobuchar (D–MN) (5/21/2013); Senator Patty Murray (D–WA) (5/21/ 

2013); Senator Jon Tester (D–MT) (5/21/2013); Senator Tom Udall 

(D–NM) (5/21/2013); Senator Johnny Isakson (R–GA) (5/22/2013); 

Senator Tammy Baldwin (D–WI) (6/3/2013); Senator Richard 

Blumenthal (D–CT) (6/3/2013); Senator Blunt (R–MO) (6/3/2013); 

Senator Kirsten E. Gillibrand (D–NY) (6/10/2013); Senator Claire 

McCaskill (D–MO) (7/17/2013); Senator Christopher A. Coons (D– 

DE); Senator Mazie K. Hirono (D–HI) (7/25/2013); and Senator Patrick Leahy (D–VT) (9/12/2013). 

On July 25, 2013, Chairman Leahy placed the bill on the Judiciary Committee’s business agenda. On August 1, 2013, Senator 

Schumer offered a substitute amendment to the bill (ALB13660) 

that the Committee adopted by unanimous consent. 

On September 12, 2013, the Committee resumed consideration of 

the bill and Senator Feinstein offered an amendment (ALB13737) 

that would provide a new definition for ‘‘covered journalist’’ to replace the definition of ‘‘covered person’’ in the bill. The Committee 

adopted the amendment by a roll call vote. The vote record is as 

follows: 

Tally: 13 Yeas, 5 Nays 

Yeas (13): Leahy (D–VT), Feinstein (D–CA), Schumer (D–NY), 

Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D–MN), Franken 


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(D–MN), Coons (D–DE), Blumenthal (D–CT), Hirono (D–HI), 

Grassley (R–IA), Hatch (R–UT), Graham (R–SC) 

Nays (5): Sessions (R–AL), Cornyn (R–TX), Lee (R–UT), Cruz (R– 

TX), Flake (R–AZ) 

Senator Sessions offered an amendment (OLL13447) that would 

establish an exception for leaks of classified information. The Committee rejected the amendment by a roll call vote. The vote record 

is as follows: 

Tally: 6 Yeas, 11 Nays, 1 Present 

Yeas (6): Hatch (R–UT), Sessions (R–AL), Cornyn (R–TX), Lee 

(R–UT), Cruz (R–TX), Flake (R–AZ) 

Nays (11): Leahy (D–VT), Schumer (D–NY), Durbin (D–IL), 

Whitehouse (D–RI), Klobuchar (D–MN), Franken (D–MN), Coons 

(D–DE), Blumenthal (D–CT) Hirono (D–HI), Grassley (R–IA), Graham (R–SC) 

Present (1): Feinstein (D–CA) 

Senator Cornyn offered an amendment (ALB13708) that would 

ensure that all persons or entities that are protected under the 

Free Press Clause of the First Amendment are covered by the bill’s 

privilege. The Committee rejected the amendment by a roll call 

vote. The vote record is as follows: 

Tally: 4 Yeas, 13 Nays, 1 Pass 

Yeas (4): Cornyn (R–TX), Lee (R–UT), Cruz (R–TX), Flake (R–AZ) 

Nays (13): Leahy (D–VT), Feinstein (D–CA), Schumer (D–NY), 

Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D–MN), Franken 

(D–MN), Coons (D–DE), Blumenthal (D–CT), Hirono (D–HI), 

Grassley (R–IA), Hatch (R–UT), Graham (R–SC) 

Pass (1): Feinstein (D–CA) 

Senator Cornyn offered an amendment (ALB13698) that would 

exempt a Federal employee’s disclosure of any nonpublic personal 

information of a private citizen from the bill’s privilege. The Committee rejected the amendment by a roll call vote. The vote record 

is as follows: 

Tally: 7 Yeas, 11 Nays 

Yeas (7): Grassley (R–IA), Hatch (R–UT), Sessions (R–AL), Cornyn (R–TX), Lee (R–UT), Cruz (R–TX), Flake (R–AZ) 

Nays (11): Leahy (D–VT), Feinstein (D–CA), Schumer (D–NY), 

Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D–MN), Franken 

(D–MN), Coons (D–DE), Blumenthal (D–CT), Hirono (D–HI), Graham (R–SC) 

Senator Sessions offered an amendment (ALB13683) to ensure 

the secrecy of grand jury proceedings. The amendment was rejected 

by a roll call vote. The vote record is as follows: 

Tally: 7 Yeas, 11 Nays 

Yeas (7): Grassley (R–IA), Hatch (R–UT), Sessions (R–AL), Cornyn (R–TX), Lee (R–UT), Cruz (R–TX) and Flake (R–AZ) 

Nays (11): Leahy (D–VT), Feinstein (D–CA), Schumer (D–NY), 

Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D–MN), Franken 

(D–MN), Coons (D–DE), Blumenthal (D–CT), Hirono (D–HI), Graham (R–SC) 

Senator Cornyn offered an amendment (ALB13701) that would 

exclude violations of Federal law related to material support of terrorism from the bill’s privilege. The Committee rejected the amendment by a roll call vote. The vote record is as follows: 


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28The defendant’s right to present a defense and cross-examine evidence that is presented 

against him or her is enshrined in the Constitution, and in a case in which a defendant seeks 

to compel production of protected information, nothing in this Act would prevent a court from 

enforcing the full extent of a defendant’s Constitutional rights. 29To be amended pursuant to the Justice Department Report on Review of News Media Policies (July 12, 2013). 

Tally: 7 Yeas, 11 Nays 

Yeas (7): Grassley (R–IA), Hatch (R–UT), Sessions (R–AL), Cornyn (R–TX), Lee (R–UT), Cruz (R–TX) and Flake (R–AZ) 

Nays (11): Leahy (D–VT), Feinstein (D–CA), Schumer (D–NY), 

Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D–MN), Franken 

(D–MN), Coons (D–DE), Blumenthal (D–CT), Hirono (D–HI), Graham (R–SC) 

The Committee then voted to report the Free Flow of Information 

Act of 2013, as amended, favorably to the Senate. The Committee 

proceeded by roll call vote as follows: 

Tally: 13 Yeas, 5 Nays 

Yeas (13): Leahy (D–VT), Feinstein (D–CA), Schumer (D–NY), 

Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D–MN), Franken 

(D–MN), Coons (D–DE), Blumenthal (D–CT), Hirono (D–HI), 

Grassley (R–IA), Hatch (R–UT), Graham (R–SC) 

Nays (5): Sessions (R–AL), Cornyn (R–TX), Lee (R–UT), Cruz (R– 

TX) and Flake (R–AZ) 

IV. SECTION-BY-SECTION SUMMARY OF THE BILL

Section 1. Short title 

This bill may be cited as the ‘‘Free Flow of Information Act.’’ 

Section 2. Compelled Disclosure from Covered Journalists 

Generally, this section provides covered journalists (see Section 

11(1)) with a qualified privilege when a Federal litigant seeks to 

compel them to provide confidential source information (see Section 

11(7)). The qualified privilege applies differently in criminal and 

civil cases. 

In both civil and criminal cases, the court must determine that 

the party seeking disclosure ‘‘has exhausted all reasonable alternative sources (other than a covered journalist) of the protected information.’’ (Section 2(a)(1)). The exhaustion requirement does not 

apply to information subpoenaed under the exceptions for criminal 

conduct (Section 3); death, kidnapping, bodily harm, certain offenses against children and harm to critical infrastructure (Section 

4); nor to terrorist activity or harm to national security (Section 5). 

In criminal matters, Section 2(a)(2)(A) provides that the disclosure of confidential source information can only be compelled if: the 

Federal entity that is seeking to compel disclosure has reasonable 

grounds to believe that a crime has occurred, based on information 

obtained other than from the covered journalist; there are reasonable grounds to believe that the testimony or document sought is 

essential to the prosecution or the defense,28 also based on information obtained other than from the covered journalist; the Attorney 

General certifies that the decision to request compelled disclosure 

was made in conjunction with the U.S. Department of Justice’s Policy With Regard to the Issuance of Subpoenas to Members of the 

News Media, 28 C.F.R. § 50.10 (‘‘the ‘‘DOJ Guidelines’’); 29 and the 

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30 Nota bene that the Privacy Protection Act generally prohibits the Government in a criminal 

investigation or prosecution from seizing materials from a member of the media (42 U.S.C. 

2000aa). However, the Government may do so if there is probable cause to believe that the 

member of the media has committed a crime by receiving, possessing, or communicating national defense or classified information in violation of the Espionage Act. In contrast, the Free 

Flow of Information Act permits a covered journalist to challenge a subpoena or other compulContinued 

dence that disclosure of the information would be contrary to the 

public interest in gathering and disseminating the news at issue 

and maintaining the free flow of information. 

In matters other than criminal matters, Section 2(a)(2)(B) states 

that the disclosure of confidential source material can only be compelled if: the party seeking to compel disclosure has exhausted all 

reasonable alternative sources; there are reasonable grounds to believe that the testimony or document sought is essential to the resolution of the matter; and the party seeking to compel disclosure 

has established that the interest in disclosing the information 

clearly outweighs the public interest in gathering and disseminating the news, and maintaining the free flow of information. 

When a litigant seeks information, he or she should not be able 

to peruse a journalist’s files or demand answers to questions that 

are outside of the bounds of the information needed for the case at 

hand. Therefore, the Act places limitations on the content of the information, and, to the extent possible, requires that the information sought be narrowly tailored in purpose, subject matter and period of time in order to avoid compelling peripheral, nonessential, 

or speculative information (Section 2(b)). There will be times, of 

course, where such limitation is neither prudent nor practicable, 

especially in cases involving national security and impending 

harms. A Federal judge has the ability to make such a determination. 

Finally, Section 2(c) provides that, when the Government seeks 

to obtain the protected information from a third party, rather than 

submitting the request to the journalist directly, the legal process 

standards set forth in 18 U.S.C. § 2703 of the Electronic Communications Privacy Act continue to apply. Specifically, 2(c)(1) states 

that the Act does not preempt the warrant requirement for Government access to certain communications records, including the communications content of a ‘‘covered journalist,’’ as set forth in § 2703. 

Section 2(c)(2) similarly clarifies that the Act does not preempt the 

requirements and procedures set forth in Federal Rule of Criminal 

Procedure 41. 

Section 3. Exception relating to criminal or tortious conduct 

The qualified privilege afforded to covered persons in Section 2 

categorically does not apply to any information obtained as a result 

of the eyewitness observations, or the commission, of alleged criminal or tortious conduct (Section 3(a)). In these cases, the covered 

journalist will have to provide the information. This exception shall 

not apply if the alleged criminal or tortious conduct is the act of 

communicating the information at issue (Section 3(b)). In that case, 

the standard privilege analysis in Section 2 will apply, subject to 

Sections 4 and 5 if the confidential information sought from the 

covered journalist would prevent death, kidnapping, serious bodily 

injury, an act of terrorism, or harm to national security as specified 

in those sections.30


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sory process seeking information that could implicate the confidential sources even if the journalist may have engaged in criminal conduct by ‘‘communicating the documents or information 

at issue.’’ Thus, the Act is intended to preempt the Privacy Protection Act under these circumstances. 

Section 4. Exception to prevent death, kidnapping, or substantial 

bodily harm 

The qualified privilege in Section 2 shall not apply to any protected information that is reasonably necessary to stop, prevent, or 

mitigate a specific case of death, kidnapping, substantial bodily 

harm, conduct that constitutes a criminal offense that is a specified 

offense against a minor (as defined by Section 111 of the Adam 

Walsh Act), or incapacitation or destruction of critical infrastructure. The purpose of this section is to establish that the privilege 

does not apply to any information a journalist may obtain with regard to serious future and imminent harm. Thus, because prevention of serious and imminent harm is so fundamental to the public 

interest, a judge need not engage in the usual balancing in such 

circumstances. In these cases, the qualified privilege is inapplicable. 

Section 5. Exception to prevent terrorist activity or harm to national 

security 

Generally, this section provides the framework for Federal courts 

to use in cases involving leaks of properly classified information, as 

well as cases involving national security and acts of terrorism. 

In a criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information, Section 2’s privilege does not apply if the court finds by a preponderance of the evidence that the protected information would materially assist the 

Federal Government in preventing or mitigating an act of terrorism 

or other acts that are reasonably likely to cause significant and 

articulable harm to national security. (Section 5(a)(2)(A)). The potential for the subsequent unlawful disclosure of information by the 

source sought to be identified shall not, by itself, be sufficient to 

demonstrate such harm. (Section 5(d)). 

In any other criminal investigation or prosecution, Section 2’s 

privilege does not apply if the court finds by a preponderance of the 

evidence that the protected information would materially assist the 

Federal Government in preventing, mitigating, or identifying the 

perpetrator of an act of terrorist or other acts that have caused or 

are reasonably likely to cause significant and articulable harm to 

national security. (Section 5(a)(2)(B)). 

This section also provides that a court must give appropriate deference to the Administration’s determination of what constitutes 

harm to national security, based on a ‘‘specific factual showing . . . 

by the head of any executive branch agency or department.’’ (Section 5(b)). As it stands, courts generally accord deference to the Administration’s national security determinations, and this bill is intended to preserve that deference when a reviewable specific factual showing is made. 

This section also provides that in order to make the showing described above, the Government may not rely exclusively on the risk 

that further information may be revealed in the future. (Section 

5(d)). Rather, additional facts and/or information must be submitted as well. This is to prevent a court from basing an order to 


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31 Additionally, neither this section of the Act, nor any other section, removes or limits a 

court’s power to hold proceedings in camera, under seal, ex parte or use other methods provided 

for under the Classified Information Protection Act (CIPA) in order to protect vital national security information during these hearings. 

compel testimony based only on a speculative assertion about future disclosures or leaks.31 If the Government is not able to make 

these showings in a national security case, the court would be required to apply the standards and balancing tests applicable to ordinary criminal cases as set forth in Section 2. 

There is no question that the protection of national security is of 

utmost importance to the United States. Therefore, proper safeguards must be in place to allow the Government to protect and 

defend the nation. There is also no question that leaks of properly 

classified information, when they are likely to cause harm to the 

nation, must be investigated and prosecuted to the full extent of 

the law. This is why there is a different analytical framework— 

with heightened burdens for journalists—in Section 5, which covers 

national security and classified leak-related cases, than in Section 

2, which covers run-of-the-mill criminal and civil cases. In order to 

protect the public’s ability to understand the critical policy choices 

of the Federal Government and avoid a chilling effect on legitimate 

newsgathering, Section 5 does require the Government to make a 

credible showing that harm to national security or an act of terrorism is actually at stake. When that showing is made, the information may be obtained; a prosecutor should not, however, be able 

to hide behind an overbroad and unreasonable claim of harm. The 

Act allows the Government to obtain needed and important information in every case in which an appropriate and specific showing 

is made. 

Section 6. Compelled disclosure from service providers 

In general, the privilege applies to requests for information about 

a person who is known to be, or reasonably likely to be, a covered 

person under this Act. The intent of this section is to prevent a litigant from undercutting the Free Flow of Information Act when a 

covered journalist’s records are held by a third party. Therefore, 

the privilege applies to any requests to any commercial entity that 

maintains records related to a covered person and any person who 

transmits information of the customer’s choosing by electronic 

means. A party or a court generally may not compel disclosure of 

this information unless the covered person has received notice of 

the request and an opportunity to be heard before a Federal judge. 

Section 6(a)(2) provides, however, that in the case of national security letters that are issued under 18 U.S.C. § 2709, the requirements in Section 2 that there are reasonable grounds to believe 

that a crime has occurred and that the Attorney General has certified compliance with his or her own guidelines do not apply. 

Section 6(c) provides that a judge may delay notice and an opportunity to be heard for up to 45 days if the judge determines by 

clear and convincing evidence that such notice would pose a clear 

and substantial threat to the integrity of a criminal investigation, 

would risk grave harm to national security, or would present an 

imminent risk of death or serious bodily harm. A judge may extend 

this period by one additional 45-day period based on a new and 

independent determination of such risk. Section 6(c)(3) defines 


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‘‘substantial threat to the integrity of a criminal investigation’’ as 

occurring when ‘‘the target of the investigation may learn of the investigation and destroy evidence if notice is provided.’’ It is assumed and expected that, logically, this subsection shall apply only 

to non-public investigations because in public investigations the 

target would have likely already heard of the investigation and attempted to destroy evidence. Section 6(c)(4) provides that a judge 

should consider whether notice to the journalist pursuant to a protective order is sufficient to protect the government’s interests in 

lieu of delayed notice to the journalist. 

Section 6(e) clarifies that the Act is not intended to preempt the 

legal process standards in the Electronic Communications Privacy 

Act (pursuant to Section 2(c)); however, it is intended to preempt 

the notice and delayed notice provisions of these acts as set forth 

in 18 U.S.C. § 2703 and § 2705(a). 

The requirements under § 2703 and § 2705(a), which govern when 

the Government seeks communications records from a third-party 

service provider, include notice provisions that vary based upon the 

records requested and the legal process used by the government. 

By contrast, the default requirement in Section 6 of the Act is that, 

regardless of the type of records requested from a covered service 

provider or the type of legal process used, the Government must 

notify the covered journalist account holder that his or her account 

information is sought from the service provider. 

Additionally, § 2703 and § 2705(a) provide that notice to a customer may be delayed for a 90-day period with additional, unlimited extensions of 90-day increments. The Act, however, provides 

for delayed notice for 45 days plus one additional 45-day increment. 

Section 6(e) of the Act preempts the delayed notice provisions of 

§ 2703 and § 2705(a). 

The Act does not preempt 18 U.S.C. § 2705(b), which permits the 

Government to obtain a court order commanding a service provider 

‘‘not to notify any other person of the existence of the warrant, subpoena, or court order’’ seeking the disclosure of the communications 

records of the account holder when delayed notice is permitted. 

Section 7. Sources and work product produced without promise or 

agreement of confidentiality 

Section 7 provides that the Act does not supersede, dilute, or preclude any law or court decision regarding compelled disclosure of 

information identifying a non-confidential source (Section 7(1)) or of 

non-confidential journalism work product. 

Section 8. Procedures for review and appeal 

This section provides that upon a showing of good cause, a judge 

may consider ex parte submissions; in addition, a judge may find 

a covered journalist to be in contempt if the person fails to comply 

with an order compelling disclosure of protected information. This 

section also provides that a judge shall make a determination 

under this Act within 30 days of receiving the motion, and appeals 

shall be interlocutory and expedited. 

Section 9. Rule of construction 

This section provides that the Act does not preempt defamation 

claims; modify grand jury secrecy rules or the Privacy Act (5 U.S.C. 


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§ 552a); create new obligations or modify authorities under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801 et seq.); 

or preclude the voluntary disclosure of information. 

Section 10. Audit 

This section requires the Inspector General of the Department of 

Justice to conduct a comprehensive audit under the Act, covering 

the period beginning on the date of enactment and ending on December 31, 2016. Such audit shall be provided to the Committees 

on the Judiciary and Intelligence in both the Senate and the House 

of Representatives, and shall be provided to the Director of National Intelligence for comment. 

Section 11. Definitions 

(1) Covered Journalist is defined in one of three ways: 

First, a covered journalist may be a person who is at the 

time of receiving the subpoena or other legal process, or was 

at the time of receiving the protected information an employee, 

independent contractor, or agent of an entity or service that 

disseminates news or information by means of a newspaper, 

nonfiction book, wire service, news agency, news website, mobile application or other news or information service, news program, magazine or other periodical, in a variety of formats; or 

through television or radio broadcast, multichannel video programming, or a variety of broadcast methods. This covered 

journalist must have had the primary intent to investigate and 

gather news by enumerated methods, had such intent at the 

beginning of the newsgathering process, and obtained the news 

in order to disseminate it. 

Second, a covered journalist may be a person who at the inception of the process of gathering the news or information, 

had the primary intent to investigate and gather news and obtained the news in order to disseminate it by a means listed 

in the previous definition, and, either had a relationship with 

an entity or service as outlined in subclause (i)(I)(aa) for a continuous one-year period within the last 20 years or a continuous three-month period within the last five years; had substantially contributed in enumerated ways to a significant 

number of items within the last five years; or was a college 

journalist. 

Third, a covered journalist may be a person for whom a 

judge ‘‘may exercise discretion [to find] . . . based on specific 

facts contained in the record’’ should be protected ‘‘in the interest of justice’’ and if ‘‘necessary to protect lawful and legitimate 

news-gathering activities under the specific circumstances of 

the case.’’ 

Covered journalist does not under any circumstance include 

a foreign power, foreign terrorist organization, or any entity 

that is defined or designated by: the Foreign Terrorist Surveillance Act of 1998 (50 U.S.C. § 1801); the Immigration and Nationality Act (8 U.S.C. § 1189(a)); a Specially Designated Global 

Terrorist by the Department of Treasury under Executive 

Order 13224 (50 U.S.C. § 1701); 31 C.F.R. 595.311; or the Immigration Nationality Act (8 U.S.C. § 1182(a)(3)(B)(vi)(II); or 

those who commit or attempt to commit the crimes of terrorism 


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32This carve-out is more than ample to address the issues pertaining to Pvc. Bradley Manning 

in the ‘‘Additional Views.’’ 33The authors of the ‘‘Additional Views’’ criticize the definition of ‘‘covered journalist’’ for 

being too broad, but also for being too narrow and thereby raising First Amendment concerns. 

In fact, the definition of ‘‘covered journalist’’ draws a clear and administrable line between those 

who are actual journalists and those who would try to hide behind the cloak of journalism in 

order to harm our country—a scenario which has never occurred. In addition, the bill does not 

purport to supplant the full scope of First Amendment protections offered to the press. The First 

Amendment allows everyone to publish, and journalists cannot be licensed by the government. 

However, not everyone can refuse to comply with an otherwise valid court order to testify. Other 

testimonial privileges like the attorney-client or the doctor-patient privileges are easy to apply: 

anyone who is a licensed attorney or physician cannot be compelled to testify about clients or 

patients. But because journalists are not licensed, the Free Flow of Information Act must include a definition of who qualifies to invoke the privilege to protect a confidential source. Thus, 

while every citizen is free to publish pursuant to the First Amendment, the Free Flow of Information Act would delineate who may resist a court order to testify in federal court and who 

may not. State shield laws also include similar definitions without impeding the right of all 

state residents to publish, and another federal statute—the Freedom of Information Act 

(FOIA)—includes a definition of ‘‘news media’’ for purposes of determining who may be granted 

a fee waiver under the law without undermining the right to publish. 

or providing material support to terrorism, as defined in various parts of Title 18. Aiders and abetters of the aforementioned are also excluded from coverage. In addition, a ‘‘covered 

journalist’’ does not under any circumstance include someone 

whose principal function is to publish primary source documents that have been disclosed without authorization.32 The 

judiciary discretion under paragraph (B) does not include any 

authority to make an exception to the exclusions under subparagraph (A)(iii).33

(2) Covered Service Provider means a telecommunications carrier 

or information service, an interactive computer service, a remote 

computing service, an electronic communications service, or any 

commercial entity that maintains records related to a covered journalist. 

(3) Document is defined as writings, recordings, and photographs 

as defined by Rule 1001 of Federal Rules of Evidence (28 U.S.C. 

App.) 

(4) Federal Entity is defined as a Federal court, legislative 

branch, or administrative agency of the Federal Government with 

the power to issue or enforce a subpoena or other compulsory process. 

(5) Judge of the United States includes judges of the courts of appeals, district courts, Court of International Trade and any court 

created by an Act of Congress. The term does not include magistrate judges or grand juries. 

(6) Properly classified information means information that is 

classified in accordance with any applicable Executive orders, statutes, or regulations. 

(7) Protected Information is defined as information identifying a 

source or any records, contents of communication, documents, or information obtained by a covered person engaged in journalism 

under the promise or agreement that such information would be 

confidential. 

(8) Relevant Date means the date on which the protected information sought was obtained or created by the person asserting protection under this Act. 

V. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The Committee sets forth, with respect to the bill, S. 987, the following estimate and comparison prepared by the Director of the 


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Congressional Budget Office under section 402 of the Congressional 

Budget Act of 1974: 

OCTOBER 30, 2013. 

Hon. PATRICK J. LEAHY, 

Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 987, the Free Flow of Information Act of 2013. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Martin von Gnechten. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 987—Free Flow of Information Act of 2013 

S. 987 would exempt journalists from being compelled to disclose 

protected information (confidential sources or related records, communications, or documents) unless a court finds that a specified exception applies. Based on information provided by the Department 

of Justice (DOJ), CBO estimates that implementing the legislation 

would cost $2 million over the 2014–2017 period, subject to the 

availability of appropriated funds. Enacting S. 987 would not affect 

direct spending or revenues; therefore, pay-as-you-go procedures do 

not apply. 

Under the legislation, journalists could be compelled to disclose 

protected information when at least one of the following exceptions 

applies: 

• The party seeking protected information has exhausted reasonable alternative sources. 

• In criminal investigations or prosecutions, there are reasonable 

grounds to believe a crime has occurred; the Attorney General has 

certified that the decision to request compelled disclosure is consistent with federal regulations; the sources or records sought are 

essential to the investigation, prosecution, or defense; and the journalist has not sufficiently shown that disclosure would be contrary 

to the public interest. 

• The protected information sought is essential to the resolution 

of the matter, and the public interest in compelling disclosure of 

the information involved outweighs the public interest in gathering 

or disseminating news information. 

• The protected information was obtained during the alleged 

criminal conduct of the reporter. 

• The information sought is necessary to prevent certain actions, 

including death and kidnapping, among others. 

• The information sought would materially assist the government in preventing or mitigating an act of terrorism or other act 

that could harm national security. 

Under the bill, covered service providers (including telecommunications carriers and Internet service providers) could not be compelled to provide testimony or documents relating to a reporter’s 

phone, email, and computer use, unless one of the above exceptions 

applies. 


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S. 987 also would require the DOJ Inspector General to conduct 

an audit of the effects of the bill’s provisions during the period between enactment and December 31, 2016, and to submit a report 

to the Congress by June 30, 2017. 

Under current law, requests to subpoena journalists on matters 

related to federal cases typically originate within DOJ. Federal 

prosecutors can request a subpoena of a journalist from a court 

after an internal review by DOJ. Information from the department 

indicates that very few subpoena requests seeking confidentialsource information are approved each year (there were a total of 

12 over the 2007–2013 period) and that it is unlikely that the bill 

would substantially increase the number of such requests. 

Journalists may challenge some subpoenas under current law, 

and S. 987 would clarify the instances when a journalist would be 

compelled to produce information or testify. The bill might increase 

federal attorneys’ litigation duties if more subpoenas would be challenged than under current law, but given the small number of potential cases, CBO estimates that any increase in federal spending 

would be insignificant. 

Based on information provided by DOJ, we expect that the department would need to hire about three people to carry out the 

audits required by S. 987. CBO estimates that it would cost about 

$500,000 annually over the 2014–2017 period for DOJ to complete 

the audits and report required by the bill. Such spending would be 

subject to the availability of appropriated funds. 

S. 987 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act and would not 

affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Martin von Gnechten. 

The estimate was approved by Peter H. Fontaine, Assistant Director for Budget Analysis. 

VI. REGULATORY IMPACT EVALUATION

In compliance with rule XXVI of the Standing Rules of the Senate, the Committee finds that no significant regulatory impact will 

result from the enactment of S. 987. 

VII. CONCLUSION

The Free Flow of Information Act establishes a clear, uniform 

Federal standard for protecting confidential source information 

that is long overdue. Enacting this legislation will ensure that confidential sources will continue to speak freely and openly to the 

press and ensure the free flow of information to the American 

public. 


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VIII. MINORITY VIEWS

MINORITY VIEWS FROM SENATORS SESSIONS AND CORNYN 

OVERVIEW

Introduction 

S. 987, the ‘‘Free Flow of Information Act of 2013,’’ would dramatically shift the process by which law enforcement goes about 

compelling disclosure of information from journalists. This bill 

would seriously impede important criminal investigations and prosecutions, including those dealing with cases of terrorism and harm 

to the national security. 

Members of the law enforcement and intelligence communities 

have had serious and longstanding concerns with similar legislation introduced in previous Congresses. Not only does the bill 

passed by the Judiciary Committee fail to address these concerns, 

but the Senate has not held a hearing on the issue of a journalist’s 

privilege since 2006, failing to provide a forum in which these concerns could be voiced. Nor have members had the opportunity to 

hear from and pose questions to the intelligence community in a 

classified setting. As this bill would impose significant limitations 

upon the ability of federal prosecutors to investigate and prosecute 

serious crimes, including terrorist attacks, harms to national security, and leaks of classified information, we strongly oppose S. 987. 

Any great nation with worldwide interests must be able to conduct secret activities, carry on secure discussions internally and 

with foreign nations. These needs have not changed and will never 

change. In the last few years, we have witnessed the proliferation 

of the most damaging leaks of classified information in our country’s history. For example, the media has reported on the existence 

of so-called terrorist ‘‘kill lists,’’ a highly classified network of clandestine CIA prisons in Europe for al-Qaeda captives, and a highly 

classified memorandum revealing administration misgivings about 

the prime minister of Iraq—a leak described by one government official as among the most damaging in recent memory. The leak of 

a highly classified report that the United States had been monitoring a major communications channel used by al-Qaeda leader 

Ayman al Zawahiri and Nasser al Wuhayshi, the head of the 

Yemen-based al-Qaeda in the Arabian Peninsula, recently was described by some Obama administration officials as having caused 

‘‘more immediate damage to American counterterrorism efforts 


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1Lindsay Wise and Adam Baron, Leaks alerted al Qaida leaders they were being monitored, 

U.S. officials claim, McClatchyDC, Sept. 30, 2013. 2 Bradley Manning’s supporters relieved over verdict (MSNBC television broadcast, July 31, 

2013), available at http://video.msnbc.msn.com/now/52632120#52632120 (last visited Oct. 17, 

2013). 3 Holder: Leaks damaged U.S. Security, CNN, June 5, 2012, available at http://www.cnn.com/ 

2013/06/14/world/europe/nsa-leaks/index.html?hpt=hplt1 (last visited Oct. 17, 2013). 4Sari Horwitz, Former FBI agent to plead guilty in leak to AP, THE WASHINGTON POST, Sept. 

23, 2013. 5Marc A. Thiessen, Kidnapped Libyan prime minister pays the price for an Obama leak, THE

WASHINGTON POST, Oct. 10, 2013. 

than the thousands of classified documents disclosed by Edward 

Snowden, the former National Security Agency contractor.’’ 1

In 2010, Bradley Manning, an intelligence analyst for the U.S. 

Army, committed the largest leak of classified information in U.S. 

history by giving extraordinarily sensitive information, including 

videos of the July 12, 2007 Baghdad airstrike and the 2009 Granai 

airstrike in Afghanistan, and hundreds of thousands of U.S. diplomatic cables and army reports, to the website ‘‘WikiLeaks.’’ Former 

State Department spokesman P.J. Crowley stated that Manning’s 

actions ‘‘put real lives and real careers at risk.’’ 2

On June 5, 2013, The Guardian published a top secret court 

order leaked by former NSA and CIA contractor Edward Snowden, 

revealing critical details about U.S. surveillance programs. According to current and former intelligence officials, suspected terrorists 

have changed how they communicate and have become more difficult to track as a result, leading to a significant loss of intelligence. Director of National Intelligence (‘‘DNI’’) James Clapper 

said that the leaks did ‘‘huge, grave damage’’ to U.S. intelligence 

gathering efforts. Attorney General Eric Holder said ‘‘[t]he national 

security of the United States has been damaged as a result of those 

leaks. The safety of the American people who reside in allied nations have been put at risk as a result.’’ 3 As of the date of this 

printing, the extent of Snowden’s crimes is unclear, as new leaks 

of classified information directly attributable to him continue to appear in the press. 

Recently, former FBI bomb technician Donald John Sachtleben 

pleaded guilty to providing national defense information to the Associated Press about the disruption of a terrorist plot by al-Qaeda 

in the Arabian Peninsula to bring down a civilian airliner headed 

for the United States.4 He also disclosed that during the investigation of the plot, authorities uncovered a bomb that was being examined at an FBI lab in Quantico where he sometimes worked. Officials described the disclosure, which came in the middle of a sensitive intelligence operation, as one of the most serious national security leaks in history, and led to the Justice Department’s decision 

to subpoena phone records from the Associated Press. According to 

the FBI, Sachtleben was identified by its investigators as the 

source of this unlawful disclosure after analysis of the subpoenaed 

telephone records. 

The devastating consequences of such leaks were starkly illustrated when the Libyan Prime Minister, Ali Zeidan, was kidnapped 

in retaliation for allowing the United States to carry out a special 

operations raid that captured senior al-Qaeda leader, Nazih AbdulHamed al Ruqai, known as Abu Anas al-Libi.5 The Libyan government had denied any prior knowledge of the raid, but on October 


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6Michael S. Schmidt and Eric Schmitt, U.S. Officials Say Libya Approved Commando Raids, 

THE NEW YORK TIMES, Oct. 9, 2013. 7Michael Hayden, The free flow of secrets, THE WASHINGTON TIMES, Dec. 10, 2009 (‘‘In my 

view, and indeed in the view of many in the American intelligence community, this seems to 

be a solution in search of a problem.’’). See also Testimony of Deputy Attorney Gen. Paul J. 

McNulty, Reporters’ Privilege Legislation: Preserving Effective Federal Law Enforcement, 109th 

Cong., 2nd Sess. (Sept. 20, 2006) (written statement) (statement of Deputy Attorney Gen. Paul 

J. McNulty), at 9. 8Letter from Brian A. Benczkowski, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, Office of Legislative Affairs, to the Hon. Patrick Leahy, Chairman, U.S. Senate Comm. on 

the Judiciary, U.S. Senate, at 4 (Sept. 26, 2007) (Appendix I). 

9, 2013, the New York Times reported that ‘‘[a]fter months of lobbying by American officials, the Libyans consented ‘some time ago’ 

. . . to the United States operations.’’ 6 The article cites ‘‘more than 

half a dozen American diplomatic, military, law enforcement, intelligence and other administration officials’’ as sources. 

This legislation is unnecessary 

S. 987 was introduced three days after the Associated Press 

wrote to Attorney General Holder to object to the above-mentioned 

subpoena, which it described as a ‘‘massive and unprecedented intrusion’’ by the Department of Justice (‘‘DOJ’’). Facing mounting 

criticism from the press, the White House called for this bill to be 

introduced. Just days later, it was revealed that the Attorney General had approved a warrant application that labeled Fox News’ 

James Rosen an ‘‘aider and abettor and/or co-conspirator’’ under 

the Espionage Act for soliciting from State Department security analyst Stephen Jin-Woo Kim the disclosure of classified defense information regarding North Korea’s response to a U.N. Security 

Council resolution condemning its nuclear and ballistic missile 

tests. Some have argued that, given this sequence of events, the 

administration’s motives in calling for this legislation were to divert criticism and placate powerful media interests. Others have 

argued that the President’s support for this bill is a tacit admission 

that his DOJ is unable to police itself. There is no question that 

the DOJ guidelines that set forth the procedures for obtaining information from the media are powerfully protective, and indeed, 

overly prescriptive in many cases. In fact, in response to this criticism, the DOJ tightened the guidelines even further. If they are 

faithfully adhered to, while ensuring the necessary flexibility to 

conduct timely and efficient investigations, they effectively ensure 

that government does not unlawfully or unfairly intrude on the 

press’s right to legitimately report on issues of public controversy. 

Regardless, as S. 987’s lead co-sponsors have conceded, this bill 

likely would not have changed the outcome of the Associated Press 

or Rosen matters. Indeed, rather than promoting the purported 

‘‘free flow of information,’’ so-called ‘‘media shield’’ legislation is, in 

the words of former National Security Agency (‘‘NSA’’) and Central 

Intelligence Agency (‘‘CIA’’) Director General Michael Hayden, 

‘‘merely a solution in search of a problem.’’ 7

The lack of need for such legislation was initially raised in the 

September 27, 2007 DOJ views letter regarding similar predecessor 

legislation introduced in the 110th Congress, which states ‘‘the Department believes that this legislation would work a dramatic shift 

in the law with no evidence that such a change is warranted.’’ 8 The 

letter points out that ‘‘[s]ince 1991, the Department has approved 


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9 Id. at 3. 10 Id. at 4 (emphasis in original). 11Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, to the Hon. Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch 

McConnell, Minority Leader, U.S. Senate (Apr. 2, 2008), at 1 (Appendix II). 12 Id. at 7. 13 Id. (emphasis in original). 14Letter from Brian A. Benczkowski, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, Office of Legislative Affairs, supra note 8, at 3 (emphasis added); see also n.2 (‘‘In only two 

of those nineteen matters was the Government seeking to question a reporter under oath to reveal the identity of a confidential source. In one of the two matters, the media member was 

willing to identify his source in response to the subpoena. In the other matter, the Department 

withdrew the media subpoenas after it had obtained other evidence concerning the source of the 

information and that source agreed to plead guilty. Of the nineteen source-related matters since 

1991, only four have been approved since 2001. While the nineteen source-related matters referenced above do not include any media subpoenas issued in matters from which the Attorney 

General was recused, the only recusal matter in which subpoenas were issued involved facts 

where all four federal judges to review the subpoena—the Chief Judge of the District Court and 

the three judge panel of the appeals court—found that the facts of the case warranted enforcethe issuance of subpoenas to reporters seeking confidential source 

information in only 19 cases. The authorizations granted for subpoenas of source information have been linked closely to significant 

criminal matters that directly affect the public’s safety and welfare.’’ 9 The letter continues: ‘‘[t]hese numbers demonstrate a decrease in the number of cases in which the Department has approved the issuance of subpoenas seeking confidential source information in recent years: of the 19 source-related matters since 1991, 

only four have been approved since 2001.’’ 10

In 2008, then-Attorney General Michael Mukasey and then-DNI 

Michael McConnell submitted a views letter noting that similar 

predecessor legislation was ‘‘unnecessary because all evidence indicates that the free flow of information has continued unabated in 

the absence of a Federal reporter’s privilege.’’ 11 The letter further 

states that the bill is ‘‘unnecessary because, in the more than thirty-five years since the Supreme Court held in Branzburg v. Hayes, 408 U.S. 665 (1972), that there is no First Amendment reporter’s 

privilege to avoid a grand jury subpoena issued in good faith, there 

has been a dramatic increase in the flow of information available 

to the public on every conceivable topic through an ever-growing 

number of outlets.’’ 12

Judge Mukasey and Mr. McConnell pointed out that supporters 

of a journalist privilege make ‘‘essentially the same arguments the 

litigants in Branzburg made,’’ suggesting that ‘‘without a reporter’s 

privilege, journalists’ sources will dry up, important news will go 

unreported, and the country will suffer as a result.’’ Proponents of 

media shield legislation ‘‘often punctuate this cautionary tale about 

the necessity of a Federal reporter’s privilege by emphasizing the 

critical role played by confidential sources in informing the public 

about a long line of historic events—from Watergate and the Pentagon Papers to Enron and Abu Ghraib.’’ As Judge Mukasey and 

Mr. McConnell emphasized, ‘‘[t]here can be no doubt those confidential sources came forward even though there was no Federal 

media shield law in place to provide them with the protection that, 

if this bill’s supporters are to be believed, is essential to ensuring 

that such stories continue to be reported.’’ 13

An examination of the facts reveals that subpoenas to journalists 

are rare. As indicated above, the DOJ approved 19 source-related 

subpoenas from 1992 to 2006.14 According to the DOJ, since 2006, 

it has approved only 12 source-related subpoenas: 


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ment of the subpoena under any version of a qualified privilege, no matter how stringent. See 

In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1150 (D.C. Cir. 2006). In that same 

case, it is important to note, the Special Prosecutor adhered to—and was found by the Court 

to have complied with—the Department’s guidelines as set forth at 28 C.F.R. § 50.10. See In re 

Special Counsel Investigation, 332 F. Supp.2d 26, 32 (D.D.C. 2004) (‘‘Assuming, arguendo, that 

the DOJ Guidelines [for the issuance of subpoenas to the news media] did vest a right in the 

movants in these cases, this court holds that the DOJ guidelines are fully satisfied by the facts 

of this case as presented to the court in the ex parte affidavit of Patrick Fitzgerald.‘‘)). 15See, e.g., American Society of News Editors, Number of subpoenas issued, Nov. 2, 2007, 

available at http://asne.org/blog_home.asp?display=661 ‘‘761 responding news organizations reported receiving a total of 3,602 subpoenas seeking information or material relating to 

newsgathering activities in calendar year 2006’’) (last visited Oct. 17, 2013). For example, a 

study conducted by Professor RonNell Jones of Brigham Young University Law School simply 

does not bear the weight that some media shield supporters claim. See RonNell A. Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media, 93 

Minn. L. Rev. 585 (2008), available at http://ssrn.com/abstract=1125500. As an initial matter, 

the study relies on self-reporting from newspapers and broadcast outlets, and, as such, must 

assume the accuracy of those outlets’ characterizations and descriptions of the subpoenas they 

received. Id. at 622. And regardless of how thorough and accurate the survey that the author 

of the study conducted, the author still must rely on earlier data in order to provide a point 

of comparison by which a determination can be made as to whether the number of subpoenas 

is going up or down. The survey the author uses as this point of comparison is a 2001 survey 

by the Reporters’ Committee on the Freedom of the Press, a survey that the author herself readily admits ‘‘did not purport to be scientific or neutral.’’ Id. at 621. And even assuming that the 

reported results are accurate, it is important to note that the author of the study states: ‘‘Overall, the data does not reveal an ‘avalanche’ of subpoenas, and it may well be that journalists 

in the country are alarmed about the subpoena issue to a greater degree than is warranted by 

the actual numerical increases.’’ Id. at 667. 

Year Number of Cases in Which SourceRelated Subpoenas Were Approved 

2007 1 

2008 4 

2009 2 

2010 3 

2011 1 

2012 0 

2013 1 

It should be noted that some supporters of media shield confuse 

matters by lumping together the DOJ’s statistics on subpoenas 

seeking source-related information with subpoenas that either did 

not seek confidential source information or were issued by non-DOJ 

attorneys.15 If the supporters of such legislation are concerned 

about an increase in subpoenas from private litigants, they ought 

to make that argument—and they ought to have data to back it up. 

But to use subpoenas from non-DOJ attorneys as a justification for 

severely constraining the ability of federal prosecutors to seek such 

subpoenas is a non-sequitur, especially when there is simply no evidence that the DOJ is approving such subpoenas in anything but 

a cautious manner. For the purposes of a discussion of the present 

legislation, the only relevant data are those data that concern federal subpoenas and other compulsory process that seek confidential 

source information—because, quite simply, that is the only information for which the current legislation would provide a shield. 

Previous concerns go unaddressed 

Similar predecessor legislation was opposed by a host of executive branch agencies in the 110th and 111th Congresses. Although 

supporters of S. 987 may argue that, after a change at the Presidential level, these agencies are no longer opposed—which is not at 


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30 

16See Letter from Brian A. Benczkowski, Principal Deputy Assistant Att’y Gen., U.S. Dep’t 

of Justice, Office of Legislative Affairs, supra note 8, at 4. 17Letter from Ronald L. Burgess, Jr., Acting Principal Deputy Dir. of Nat’l Intelligence, Office 

of the Dir. of Nat’l Intelligence, to the Hon. John D. Rockefeller, Chairman, and the Hon. Christopher S. Bond, Vice Chairman, Senate Select Comm. on Intelligence, U.S. Senate, at 1 (Sep. 

27, 2007) (Appendix III). 18 Id. (quoting Stanislav Lunev with Ira Winkler, Through the Eyes of the Enemy: The Autobiography of Stanislav Lunev (Regnery Publishing 1998)). 19Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 11, at 1. 20 Id. 21 Id. 

all clear given that the Committee has yet to hear from any of the 

heads of these agencies, other than Attorney General Holder—what 

is relevant is that the reasons for the agencies’ past and well-founded opposition have not been substantively addressed in the bill 

passed by the Judiciary Committee. 

As noted above, in the fall of 2007, the DOJ issued a letter expressing strong opposition to similar predecessor legislation ‘‘because it would impose significant limitations upon—and in some 

cases would completely eviscerate—the ability of Federal prosecutors to investigate and prosecute serious crimes, while creating significant national security risks.’’ 16

The next day, the Office of the DNI also issued a letter ‘‘strongly 

opposing’’ media shield legislation.17 According to the letter, ‘‘press 

reports on U.S. intelligence activities have been a valuable source 

of intelligence to our adversaries.’’ Amplifying this point, the DNI 

letter referred to former Russian military intelligence colonel 

Stanislav Lunev, who wrote, ‘‘I was amazed—and Moscow was very 

appreciative—at how many times I found very sensitive information in American newspapers. In my view, Americans tend to care 

more about scooping their competition than about national security, which made my job easier.’’ 18

In April 2008, then-Attorney General Mukasey and then-DNI 

McConnell issued the above-mentioned views letter reiterating 

their strong opposition to similar predecessor legislation.19 In that 

letter, Judge Mukasey and Mr. McConnell stated that the legislation is: 

both unwise and unnecessary: unwise because the statutory privilege created by this legislation would work a significant change in existing Federal law with potentially 

dramatic consequences for our ability to protect the national security and investigate other crimes; and unnecessary because all evidence indicates that the free flow of information has continued unabated in the absence of a Federal reporter’s privilege.20

Judge Mukasey and Mr. McConnell emphasized that the similar 

bill ‘‘goes far beyond its stated purpose and could severely frustrate 

the Government’s ability to investigate and prosecute those who 

harm national security.’’ 21 According to them, the most significant 

deficiencies include: • ‘‘The circumstances where the bill would permit the Government to obtain testimony, documents, and other information from 

journalists related to national security investigations are far too restrictive. In the vast majority of leak cases, for example, the extraordinary burden placed on the Government could be met, if at 


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22 Id. 23 Id. 24 Id. at 2. 25 Id. 26Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, to the Hon. Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch 

McConnell, Minority Leader, U.S. Senate (Aug. 22, 2008), at 1 (emphasis in original) (Appendix 

IV). 

all, only by revealing even more sensitive and classified information.’’ 22

• ‘‘[T]he purported [national security] exception only applies prospectively to prevent acts of terrorism and significant harm to national security. It does not apply to investigations of acts of terrorism and significant harm to national security that have already 

occurred.’’ 23

• ‘‘The bill cedes to judges the authority to determine what does 

and does not constitute ‘significant and articulable harm to the national security.’ It also gives courts the authority to override the 

national security interest where the court deems that interest insufficiently compelling—even when harm to national security has 

been established.’’ 24

• ‘‘One need not even be a professional journalist in order to derive protections from this bill. It effectively provides a safe haven 

for foreign spies and terrorists who engage in some of the trappings 

of journalism but are not known to be part of designated terrorist 

organizations or known to be agents of a foreign power—no matter 

how closely linked they may be to terrorist or other criminal activity.’’ 25

In an August 2008 letter, sent after the predecessor legislation 

had been amended in a failed attempt to address some of their concerns, Judge Mukasey and Mr. McConnell wrote: 

[W]e still have several serious concerns, especially with 

regard to the bill’s effect on our ability to protect national 

security and investigate and prosecute the perpetrators of 

serious crimes. 

* * * 

[T]his bill only encourages and facilitates further degradation of the tools used to protect the nation. We have 

been joined by the Secretary of Defense, the Secretary of 

Energy, the Secretary of Homeland Security, the Secretary 

of the Treasury, and every senior Intelligence Community 

leader in expressing the belief, based on decades of experience, that, by undermining the investigation and deterrence of unauthorized leaks of national security information to the media, this legislation will gravely damage our 

ability to protect the Nation’s security. This amended 

version of the bill does not resolve those concerns, or other 

serious concerns raised in our previous letters. As a result, 

if this legislation were presented to the President in its current form, his senior advisors would recommend that he 

veto the bill.26

As we explain below, none of these inadequacies set out by Judge 

Mukasey and Mr. McConnell have been addressed in the Committee-reported version of S. 987. 


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27Letter from J.M. McConnell, Dir. of Nat’l Intelligence et al., to the Hon. Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch McConnell, Minority Leader, U.S. Senate (Jan. 23, 

2008), at 1 (Appendix V). 28Letter from Robert Gates, Sec’y of Defense, U.S. Dep’t of Defense, to the Hon. Harry Reid, 

Majority Leader, U.S. Senate (Mar. 31, 2008), at 1 (Appendix VI). 

As noted in Judge Mukasey and Mr. McConnell’s letter, on January 23, 2008, 12 members of the intelligence community—six of 

whom continue to serve or previously served in the Obama administration—issued a joint letter expressing their ‘‘strong opposition’’ 

to the similar predecessor legislation.27 Signatories to that letter 

included: (1) Mr. McConnell; (2) General Hayden, then-CIA Director; (3) James R. Clapper, Jr., then-Under Secretary of Defense for 

Intelligence and current DNI; (4) Robert Mueller, then—and until 

September 2013—Director of the Federal Bureau of Investigation 

(‘‘FBI’’); (5) Randall M. Fort, then-Assistant Secretary of State for 

Intelligence and Research; (6) Janice Gardner, then-Assistant Secretary for Intelligence and Analysis at the Department of the 

Treasury; (7) Charlie Allen, then-Under Secretary for Intelligence 

and Analysis at the Department of Homeland Security; (8) Lieutenant General Keith Alexander, then-and-current Director of the National Security Agency (‘‘NSA’’); (9) Scott Large, then-Director of 

the National Reconnaissance Office; (10) Lieutenant General Michael Maples, then-Director of the Defense Intelligence Agency; 

(11) Vice Admiral Robert Murrett, then-Director of the National 

Geospatial-Intelligence Agency; and (12) Rolf Mowatt-Larssen, 

then-Director for Intelligence and Counterintelligence at the Department of Energy. They wrote that the legislation ‘‘will undermine our ability to protect intelligence sources and methods and 

could seriously impede national security investigations’’ and ‘‘will 

impair our ability to collect vital foreign intelligence, including 

through critical relationships with foreign governments which are 

grounded in confidence in our ability to protect information from 

public disclosure.’’ 

On March 31, 2008, then-Defense Secretary Robert Gates issued 

a views letter expressing the Department of Defense’s ‘‘strong opposition’’ to the similar predecessor legislation.28 In the letter, Secretary Gates stated that the Defense Department is ‘‘concerned 

that this bill will undermine our ability to protect national security 

information and intelligence sources and methods and could seriously impede investigations of unauthorized disclosures.’’ Secretary 

Gates emphasized that ‘‘[d]isclosures of classified information about 

military operations directly threaten the lives of military members 

and the success of current and future military operations’’ as well 

as ‘‘the lives and safety of American citizens and the welfare of the 

Nation.’’ Secretary Gates concluded that, by providing ‘‘a broadly 

defined class of ‘covered persons’ with extraordinary legal protections against having to reveal any confidential sources,’’ the bill 

would ‘‘have the unintended consequence of encouraging unauthorized disclosures and increasing our nation’s vulnerability to adversaries’ counterintelligence efforts to recruit ‘covered persons.’ ’’ 

On April 3, 2008, then-Homeland Security Secretary Michael 

Chertoff issued a views letter on behalf of the Department of 

Homeland Security expressing the Department’s ‘‘strong opposiVerDate Mar 15 2010 03:56 Nov 09, 2013 Jkt 085431 PO 00000 Frm 00032 Fmt 6604 Sfmt 6602 E:\HR\OC\SR118.XXX SR118

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29Letter from Michael Chertoff, Sec’y of Homeland Security, U.S. Dep’t of Homeland Security, 

to the Hon. Joseph Lieberman, Chairman, Comm. on Homeland Security and Governmental Affairs, U.S. Senate (Apr. 3, 2008) (Appendix VII). 30Letter from Samuel W. Bodman, Sec’y of Energy, U.S. Dep’t of Energy, to the Hon. Carl 

Levin, Chairman, Senate Comm. on Armed Services, U.S. Senate & the Hon. Jeff Bingaman, 

Chairman, Comm. on Nat. Resources, U.S. Senate (Apr. 7, 2008) (Appendix VIII). 31Letter from Henry M. Paulson, Jr., Sec’y of the Treasury, U.S. Dep’t of the Treasury, to 

the Hon. Max Baucus, Chairman, Comm. on Finance, U.S. Senate (Apr. 15, 2008) (Appendix IX). 32Letter from Eric Holder, Att’y Gen., U.S. Dep’t of Justice, to Hon. Patrick J. Leahy, Chairman, Comm. on the Judiciary, U.S. Senate (July 29, 2013). 33S. 987, 113th Cong. § 2 (as reported by S. Comm. on the Judiciary, Sept. 12, 2013). 

tion’’ to the legislation.29 According to the letter, the Department 

‘‘believes that [the bill] will make the United States both less secure and less free by subverting the enforcement of criminal laws 

and the Federal Government’s investigatory powers.’’ As evidence, 

Mr. Chertoff, a former federal prosecutor and federal appeals court 

judge, pointed out that media shield legislation ‘‘erects significant 

evidentiary burdens to obtaining critical information from anyone 

who can claim to be a journalist, including bloggers, and communications service providers, such as internet service providers.’’ As 

a result of that significant evidentiary burden, Mr. Chertoff stated 

that the bill would ‘‘delay the collection of critical information and 

ensure that criminals have opportunities to avoid detection, continue their potentially dangerous operations, and further obfuscate 

their illegal activities.’’ 

Views letters of opposition to the similar predecessor legislation 

were also submitted by then-Energy Secretary Samuel Bodman 30

and then-Treasury Secretary Henry Paulson.31

S. 987 remains substantively the same to the aforementioned legislation that was vigorously opposed by executive branch agencies in 

the 110th and 111th Congresses. The short letter submitted by Attorney General Holder to Chairman Leahy regarding S. 987 is light 

on analysis and does not answer the longstanding concerns raised 

by his predecessor and the intelligence and law enforcement community.32 As set forth below, these concerns remain unaddressed. 

CORE OBJECTIONS TO S. 987

S. 987 places a substantial and unwarranted burden on the Government to obtain information 

S. 987 places an extremely heavy burden on a prosecutor or litigator seeking information from a journalist by in effect forcing the 

government to wage a mini-trial to meet its burden under various 

tests. In order to do this, federal prosecutors may have to reveal 

extremely sensitive information, including information that could 

imperil national security. 

Under the bill, in order to obtain confidential source information, 

the government must generally prove that all reasonable alternative sources have been exhausted, that the testimony or document sought is ‘‘essential’’ to a prosecution, and that nondisclosure 

would be ‘‘contrary to the public interest, taking into account both 

the public interest in gathering and disseminating the information 

or news at issue and maintaining the free flow of information and 

the public interest in compelling disclosure.’’ 33 If a court, correctly 

or incorrectly, comes to the conclusion that the government still 

has a potential avenue for further investigation other than disclosure from the journalist, the government has no choice but to unVerDate Mar 15 2010 03:56 Nov 09, 2013 Jkt 085431 PO 00000 Frm 00033 Fmt 6604 Sfmt 6602 E:\HR\OC\SR118.XXX SR118

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34Patrick J. Fitzgerald, Shield Law Perils . . . Bill Would Wreak Havoc on a System That 

Isn’t Broken, THE WASHINGTON POST (Oct. 4, 2007). 35S. 987, supra note 33, at § 2(a)(2). 36Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 26, at 6. 37 Id. at §§ 3–5. 

dertake that avenue of investigation. Similarly, if a court decides 

that the information sought is not ‘‘essential’’ to the government’s 

case, the government cannot go forward. As former United States 

Attorney Patrick Fitzgerald wrote in 2007 concerning similar predecessor legislation, ‘‘[i]n many cases, authorities would face the 

Catch–22 of being required to prove specific criminal activity—in a 

hearing before a judge, often resulting in notice to the subjects of 

investigation or their associates—before they could take the investigative steps to determine whether criminal activity had occurred. 

In effect, the law would require ‘trial before investigation.’ ’’ 34

S. 987 also generally limits the government to using public information or information from a third party to establish the factual 

predicate for overcoming the journalist’s privilege.35 As noted by 

Judge Mukasey and Mr. McConnell, ‘‘[g]iven that in many cases 

publication by the [journalist] is the only evidence for seeking 

source information, this requirement is certain to cause serious 

practical difficulties in criminal and civil matters.’’ 36

Also, other than the circumstances enumerated in Sections 4 and 

5, the bill makes no provision whatsoever for exigent circumstances 

that would cause a reasonable person to believe that prompt action 

was necessary. As the procedure for overcoming the privilege is 

both burdensome and time-consuming, it is not difficult to envision 

a scenario wherein the assertion of the privilege could derail a critical, fast-moving investigation. Suppose a journalist publishes a 

story about an al-Qaeda sleeper cell currently in the United States. 

The journalist’s source is one of the terrorists. The government, 

trying to learn more about the cell, subpoenas the journalist, the 

journalist refuses to comply, and the government moves for a disclosure order. No one would dispute that prompt action is necessary in a case like this. However, because the government cannot 

articulate a specific terrorist act that will be prevented by taking 

action, a court could determine that the Section 4 and 5 exceptions 

to the privilege do not apply, and set a hearing to determine 

whether to order disclosure under Section 2. Even if the government prevails in this scenario, the journalist can appeal, which 

consumes even more time. All the while, the cell continues to operate freely. 

S. 987 will endanger classified information 

In order for the government to meet the statute’s burdens, it will 

almost certainly have to disclose sensitive national security information. Although S. 987 exempts certain types of information from 

its coverage, these exceptions are extremely narrow—in cases relating to alleged criminal or tortious conduct by the journalist; prevention of death, kidnapping, substantial bodily injury, a child sex 

crime, or destruction of critical infrastructure; and prevention of future terrorist activity or harm to national security.37

In order to prove the existence of a valid exception for national 

security in a classified leak case, the government would likely have 


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38Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 11, at 3. 39 Hayden, supra note 7. 40The Commission on the Intelligence Capabilities of the United States Regarding Weapons 

of Mass Destruction, Report to the President of the United States, at 381 (Mar. 31, 2005). 41Fitzgerald, supra note 34. 

to contextualize that leak for the court. As a result, Judge Mukasey 

and Mr. McConnell warned that ‘‘the Government will often be required to introduce still more sensitive and classified information, 

potentially compounding the harm of the initial leak.’’ 38 This is unacceptable, and largely the result of the bill’s failure to explicitly 

set forth guidelines to protect the sensitive national security information with which it deals. As General Hayden wrote regarding 

similar predecessor legislation, ‘‘[t]his new judicial process likely 

will require the disclosure of even more classified information in 

order to meet the bill’s requirements. Even with such additional 

disclosure, there is no assurance that a judge, now occupying this 

new and uncharted role of national security decision-maker, would 

understand the stakes involved.’’ 39

Further, S. 987 severely hinders the government’s ability to identify the sources of leaked classified information and to investigate 

past and potential future terrorist attacks. Sources that hide behind journalists’ promises of confidentiality in order to perpetrate 

wrongdoings, such as the leaking of classified information, will receive protection under S. 987. Former Senator Charles Robb and 

Judge Laurence Silberman, a former member of the Foreign Intelligence Surveillance Court of Review, expressed concerns about the 

negative impact of unauthorized disclosures of classified information on national security in the report to the President by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. According to the Commission’s report, ‘‘[t]he scope of damage done to our collection capabilities from media disclosures of classified information is well documented. Hundreds of serious press leaks have significantly impaired U.S. capabilities against our hardest targets.’’ 40

No one would dispute that such disclosures pose a serious threat 

to national security. However, this bill sets forth special standards 

that place protecting a leaker’s identity ahead of the safety and security of the country. Such special standards are highly inappropriate, as noted by former U.S. Attorney Patrick Fitzgerald with respect to similar predecessor legislation: 

The proposed shield law poses real hazards to national 

security and law enforcement. The bipartisan Sept. 11 

commission and the Robb-Silberman commission on prewar intelligence both found our national security at great 

risk because of the widespread leaking of classified information. The proposed law would have the unintended but 

profound effect of handcuffing investigations of such 

leaks.41

It is axiomatic that if Congress protects leakers of classified and 

other sensitive information by passing S. 987, what will result is 

more leaks of such information. For example, in his 2008 views letter regarding similar predecessor legislation, then-Secretary of Defense Robert Gates stated that the Defense Department was conVerDate Mar 15 2010 03:56 Nov 09, 2013 Jkt 085431 PO 00000 Frm 00035 Fmt 6604 Sfmt 6602 E:\HR\OC\SR118.XXX SR118

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42Letter from Robert Gates, Sec’y of Defense, U.S. Dep’t of Defense, supra note 28, at 1. 43 Id. ‘‘Past investigations into unauthorized disclosures through the media have found that 

significant details were revealed to our adversaries concerning a wide array of national security 

matters on different occasions. Some examples include a Department of Defense surveillance 

platform’s capabilities; war plans that could have allowed Saddam Hussein’s forces to more effectively position defensive assets; plans to insert Special Operations Forces into a battlefield; 

and the capabilities of U.S. imaging satellites’’). 

cerned that a journalist’s privilege ‘‘will undermine our ability to 

protect national security information and intelligence sources and 

methods and could seriously impede investigations of unauthorized 

disclosures.’’ 42 Secretary Gates rightly emphasized that 

‘‘[d]isclosures of classified information about military operations directly threaten the lives of military members and the success of 

current and future military operations’’ as well as ‘‘the lives and 

safety of American citizens and the welfare of the Nation.’’ 43

Congress enacted the relevant criminal laws regarding the leaking of classified information precisely to prevent leaks from occurring. But instead of making it easier for investigators and prosecutors to bring to justice those who would imperil our national security, the Committee has endorsed legislation that would do the 

exact opposite by explicitly protecting leakers of classified information and increasing the burden on those who seek to bring these 

leakers to justice. The cumulative effect of this burden would cripple the government’s ability to identify and prosecute leakers of 

classified information, and in the process would encourage more 

leaks that threaten national security. 

S. 987 protects an extraordinarily broad class of individuals 

Given the strong and unprecedented protections that this bill 

confers, it is essential to know exactly who will qualify for those 

protections. Recognizing the inherent difficulty, if not impossibility, 

of defining ‘‘journalist’’ consistent with the First Amendment, the 

Committee adopted Senator Feinstein’s amendment, which attempted to narrow the definition of ‘‘covered journalist’’ to a person 

who 

is, or on the relevant date, was, an employee, independent 

contractor, or agent of an entity or service that disseminates news or information by means of newspaper; nonfiction book; wire service; news agency; news website, mobile 

application or other news or information service (whether 

distributed digitally or otherwise); news program; magazine or other periodical, whether in print, electronic, or 

other format; or through television or radio broadcast, multichannel video programming distributor . . . or motion 

picture for public showing; with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, 

national, or international events or other matters of public 

interest, engages, or as of the relevant date engaged, in 

the regular gathering, preparation, collection, 

photographing, recording, writing, editing, reporting or 

publishing on such matters by conducting interviews; making direct observations of events; or collecting, reviewing, 

or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, docuVerDate Mar 15 2010 03:56 Nov 09, 2013 Jkt 085431 PO 00000 Frm 00036 Fmt 6604 Sfmt 6602 E:\HR\OC\SR118.XXX SR118

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44S. 987, supra note 33, at § 11(l)(A)(i)(I)(aa)–(dd). 45 Id. at § 11(l)(A)(iii). 46See, e.g., Gabriel Schoenfeld, Journalism or Espionage, NATIONAL JOURNAL, Issue 17 (Fall 

2013) (‘‘The Foreign Press Association of New York offers press credentials to anyone who pays 

its membership fee, describing it ‘as the best $100 value in Town.’ It is indeed a highly attractive offer if it also comes complete with a fundamental right to assume an alias, communicate 

with U.S. officials in code or encrypted emails, and solicit secrets from them with impunity’’). 

ments, photographs, recordings, tapes, materials, data, or 

other information whether in paper, electronic, or other 

form; had such intent at the inception of the process of 

gathering the news or information sought; and obtained 

the news or information sought in order to disseminate the 

news or information to the public.44

This confusing and lengthy definition would nonetheless appear to 

cover almost anyone, including criminals and other individuals 

with countless opportunities to leak damaging information without 

worrying about any sort of consequence. Regardless, this definition 

inserts yet another factual question into the investigative minitrials that, under this bill, will replace the use of ordinary and 

basic law enforcement investigative techniques. 

Perhaps most alarming, the protections could apply to media or 

websites that are linked to terrorists and criminals. The bill purports to exempt agents of foreign powers and designated terrorist 

organizations from the definition of ‘‘covered journalist.’’ 45 However, many terrorist media are neither ‘‘designated’’ terrorist organizations nor other non-covered entities under the bill. It is indisputable that the bill would protect ‘‘professional journalists’’ employed by the Al Jazeera network or the Chinese Communist party’s People’s Daily or ‘‘Russia Today,’’ the Russian-based television 

network funded and run by the Federal Agency on Press and Mass 

Communications of the Russian Federation. Thus, all individuals 

and entities who ‘‘gather’’ or ‘‘publish’’ information about ‘‘matters 

of public interest’’ but who are not technically designated terrorist 

organizations, foreign powers, or agents of a foreign power will be 

entitled to S. 987’s protections—no matter how closely tied they 

may be to terrorists or other criminals. It is not difficult to anticipate the scenarios under which the robust protections of S. 987 

would be easily abused by those who wish to harm our safety and 

national security.46

S. 987 could be construed to protect other wrongdoers as well. As 

noted in its letter in opposition to the bill, the U.S. Chamber of 

Commerce stated that it is concerned 

with a narrow set of sources who are bad-actors and use 

the media to illegally disseminate confidential information. 

When Congress considered a similar bill in 2005, the ombudsman for the San Francisco Chronicle warned that 

there is ‘‘danger of mischief on the part of sources who 

know they can escape accountability.’’ Evidentiary privileges should not protect individuals who willfully use them 

to commit and cover up crimes. S. 987 would not only protect these individuals, but by doing so, would embolden 

their illegal activities. 

S. 987 would protect people who violate laws that safeguard the confidential information of private individuals, 


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47Letter from R. Bruce Josten, Executive Vice President of Government Affairs, U.S. Chamber 

of Commerce, to the Hon. Patrick Leahy, Chairman, and the Hon. Chuck Grassley, Ranking 

Member, Comm. on the Judiciary, U.S. Senate (July 29, 2013) (Appendix X). 48S. 987, supra note 33, at § 11(l)(A)(ii). 49See Reuters, Handbook of Journalism, available at http://handbook.reuters.com/ 

index.php?title=The_Essentials_ of_Reuters_sourcing (last visited Sept. 25, 2013) (noting that 

‘‘[r]eporters are expected to disclose their sources, when asked, to their immediate supervisor, 

whether bureau chief or reporting unit head,′′ and that ′′the supervisor should not disclose the 

name of the source [to others] but may discuss the nature, position, access and track record of 

the source’’). 50S. 987, supra note 33, at § 2(a). 

businesses, and other entities. This confidential information includes federally protected trade secrets, personal 

health information, customer or employee data, and information sealed under judicial protective orders, among others. In these circumstances, the public policy decision has 

been made that this information should not be subject to 

public disclosure. When protected information is leaked, 

there is no way to limit the damage of the disclosure. Yet, 

S. 987 would protect those who violate these laws. 

* * * 

S. 987 would also unintentionally undermine other aspects of the First Amendment. Under the bill, information 

like a group’s member or donor list would potentially be 

unprotected if the information were stolen and leaked to a 

reporter. This is exacerbated when the definition of reporter is extended to non-traditional news sources that 

often have a politically motivated agenda. The disclosure 

of this information would violate the rights of individuals 

to freely associate and could be used to target and silence 

those who support disfavored causes. As a result, this bill, 

which is aimed at protected First Amendment speech, 

would ultimately undermine those principles by facilitating retaliation against certain speakers.47

S. 987 also protects a broad array of individuals in the media, 

including the journalist’s employer and parent company.48 There is 

no need for this broad protection, as standard media sourcing rules 

generally dictate that a source’s identity should only be disclosed 

by a journalist to his or her immediate supervisor.49

SECTION-BY-SECTION DISCUSSION OF CONCERNS

Section 2: Compelled disclosure from covered journalists 

Subsection (a) of Section 2 lists the conditions for compelled disclosure of protected information. In any federal proceeding or in 

connection with any issue arising under federal law, a federal entity may not generally compel disclosure of testimony or documents 

when they relate to protected information possessed by a ‘‘covered 

journalist.’’ 50 However, a court may compel disclosure if it determines that the party seeking to compel production has ‘‘exhausted 

all reasonable alternative sources’’ of the testimony or documents 

(other than the covered journalist) and, in criminal cases, that: 

• Based on public information or information obtained from 

a source other than the covered journalist, there are ‘‘reasonable grounds to believe a crime has occurred;’’ 


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51 Id. 52 Id. at § 2(b). 53 Id. at § 2(a)(1). 54 Id. at § 2(a)(2)(iii). 55Letter from Eric Holder, Att’y Gen., U.S. Dep’t of Justice, supra note 32. 

• Based on public information or information obtained from 

a source other than the covered journalist, there are reasonable grounds to believe that the testimony or documents 

sought are ‘‘essential to the investigation or prosecution or to 

the defense against the prosecution;’’ 

• The Attorney General certifies that the decision to request 

compelled disclosure was consistent with 28 C.F.R. § 50.10 (in 

circumstances governed by that rule); and 

• The covered journalist has not established by clear and 

convincing evidence that disclosure of the information would be 

contrary to the public interest, ‘‘taking into account both the 

public interest in gathering and disseminating the information 

or news at issue and maintaining the free flow of information.’’ 51

The bill also requires the subpoena or court order to be ‘‘narrowly 

tailored in purpose, subject matter, and period of time covered so 

as to avoid compelling disclosure or peripheral, nonessential, or 

speculative information.’’ 52

As discussed previously, Section 2 sets an extremely high bar for 

a prosecutor or litigator to obtain critical information from a journalist by in effect forcing the government to wage a mini-trial to 

meet its burden under various tests. In order to do this, federal 

prosecutors may have to reveal extremely sensitive information, including information that could imperil national security. Specifically, the government must prove that the information it seeks is 

both ‘‘essential’’ to the case and that it has exhausted all reasonable alternatives.53 These requirements, which are not defined in 

the bill, put a federal judge in the position of micromanaging a 

criminal investigation, even those in the early stages when subpoenas are most commonly used to ascertain whether a (or which) 

federal crime has even been committed. If a court, correctly or incorrectly, concludes that the government has another potential avenue for further investigation besides disclosure from the journalist, 

the government has no choice but to undertake that avenue of investigation, regardless of the time, expense, and potential for compromise involved. Similarly, if a judge decides that the information 

sought is not essential to the government’s case, the government 

cannot go forward. Moreover, Section 2 not only erects new barriers 

against law enforcement, but it also requires the Attorney General 

to certify that Justice Department policy procedures limiting subpoenas on the press were followed.54 Notably, apart from generally 

summarizing Section 2’s strictures, Attorney General Holder’s letter does not even mention the operational impact of these two requirements.55

Fundamentally, Section 2 charges federal judges—who generally 

lack the training and expertise necessary to weigh the sort of national security considerations often at play—with making the ultimate decisions concerning which investigations are sensitive 


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56See, e.g., Testimony of Deputy Att’y Gen. Paul J. McNulty, supra note 7 (‘‘It shifts law enforcement decisions from the executive branch to the judiciary. This shift is extraordinarily serious in the national security area where the executive officials have access to the full array of 

information necessary to make informed and balanced national security judgments. . . . As numerous judges have recognized, the courts lack the institutional resources and expertise to make 

those decisions.’’) (emphasis added). 57S. 987, supra note 33, at § 2(a)(2)(A)(iv). 58Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 11, at 5. 59Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 26, at 4. 60 Id. at 2. 61 Id. 62S. 987, supra note 33, at § 3(a). 

enough to get access to a journalist’s information.56 A federal judge 

is tasked with balancing the public interest in the evidence being 

gathered with the ‘‘public interest in gathering and disseminating 

the information or news at issue and maintaining the free flow of 

information.’’ 57 Notably, these terms are nowhere defined in the 

bill. 

Judge Mukasey and Mr. McConnell expressed significant concern 

with respect to nearly identical language in predecessor legislation: 

‘‘These amorphous factors will defy consistent or coherent balancing. Indeed, we would submit that the open-ended nature of the 

bill’s balancing tests virtually guarantees that there will be as 

many different interpretations of its terms as there are Federal 

judges—with serious consequences not just for law enforcement but 

for journalists and the public at large.’’ 58 They also emphasized 

that the ‘‘balancing test for a judge in a leak case would rest on 

the relative import he or she placed on the substance of the published leak, and whether its disclosure, though unlawful, outweighed a demonstrated harm to national security. . . . This . . . 

would effectively give judges authority to immunize leakers as a 

perverse reward for divulging classified information that is, in the 

judge’s personal estimation, sufficiently enlightening.’’ 59

We agree with Judge Mukasey and Mr. McConnell that media 

shield legislation unwisely ‘‘transfers key national security and 

prosecutorial decision-making authority—including decisions about 

what does and does not constitute harm to the national security— 

from the executive branch to the judiciary, and it gives judges virtually limitless discretion to make such determinations by imposing 

standardless and highly subjective balancing tests that could be 

used to override national security interests.’’ 60

We also agree with their sentiment that the ‘‘Rule of Construction,’’ ‘‘which purports to limit any construction of the Act that 

would affect the Foreign Intelligence Surveillance Act or the Federal laws or rules relating to grand jury secrecy—is insufficient to 

preserve the range of authorities on which the Government relies 

to conduct national security investigations.’’ 61

Section 3: Exception relating to criminal conduct 

Section 3 provides that the general journalists’ privilege in Section 2 does not apply to protected information obtained as the result of the journalist’s eyewitness observations of alleged criminal 

conduct, or any alleged criminal conduct committed by a journalist.62 However, pursuant to Section 3(b), this exception does not 


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63 Id. at § 3(b). 64See Seth Leibsohn & Andrew C. McCarthy, Press That Shield Back, NATIONAL REVIEW, Oct. 

18, 2007 (‘‘With this privilege, the media, unlike the rest of us, can now skirt a core obligation 

of citizenship: the duty to provide testimony when they witness crimes. Indeed, even if they aid 

and abet certain crimes, our lawmakers would provide them cover.’’). 65 360 U.S. 395, 405 (1959). 66S. 987, supra note 33, at § 5. 

apply ‘‘if the alleged criminal conduct is the act of communicating 

the documents or information at issue.’’ 63

Although this section purports to remove some information from 

the scope of the journalists’ privilege, it actually protects information if the crime under investigation is a leak of classified or grand 

jury information to a journalist. As a result, S. 987 will encourage 

leakers of classified or grand jury information to get away with 

clear violations of federal law, so long as the recipient of the information promises to keep the leaker’s identity a secret. 

The language in Section 3(b) is remarkable, as we have been unable to find another example in federal criminal law where Congress has specified that an individual can seek the protection of a 

court privilege even if that person has committed a crime in the 

process.64 Presumably, then, S. 987 would be the first such court 

privilege that protects lawbreakers. An individual who leaks classified or grand jury information commits a grievous crime and does 

not deserve the protection afforded by a journalist’s successful assertion of privilege. If leakers of classified or grand jury information are protected under S. 987, we believe that more leaks will result and it will be harder to prosecute them. 

Grand jury secrecy is one of the cornerstones of our federal justice system. As the Supreme Court observed in Pittsburgh Plate 

Glass Co. v. United States,65 the secrecy of grand jury proceedings: 

(1) prevents the accused from escaping before he is indicted or arrested or from tampering with witnesses; (2) prevents disclosure of 

derogatory information presented to the grand jury against an accused who has not been indicted; (3) encourages complainants and 

witnesses to come before the grand jury and speak freely without 

fear of reprisal; and (4) encourages the grand jurors to engage in 

uninhibited investigation and deliberation by barring disclosure of 

their votes and comments during the proceedings. 

S. 987 protects journalists from having to disclose information to 

the government, even if the crime under investigation is the leak 

of grand jury information to a journalist. Specifically, Section 3 

states that a journalist engaged in criminal conduct cannot take 

advantage of the privilege in this bill. However, subsection (b) provides: ‘‘This section shall not apply, and, subject to section 4 and 

5, section 2 shall apply, if the alleged criminal conduct is the act 

of communicating the documents or information at issue.’’ 66 Therefore, it would appear that Section 3(b) is intended to provide a 

privilege whenever the transmission of the information is a crime. 

Many grand jury leaks to journalists are made with the goal of 

exposing an ongoing investigation, often with the intention of derailing it, or simply because the leaker craves attention. Reputations of many innocent Americans have been ruined by leaks of 

sensitive information that later turned out to be untrue, such as 

Richard Jewell, who was falsely alleged to be the Olympic Park 


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67Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 26, at 5. 68Letter from Eric Holder, Att’y Gen., U.S. Dep’t of Justice, supra note 32. 

bomber, and Steven Hatfill, who was falsely alleged to have committed the 2001 anthrax attacks. 

Even the bill’s lead sponsor has acknowledged the harm that can 

be caused by grand jury leaks. During the Committee’s last hearing 

on this topic in 2006, Senator Schumer said: ‘‘When a person leaks 

secret grand jury information, that is against the law. Society has 

made a determination: You leak grand jury information, that is 

against the law. There is no countervailing issue here because we 

have made that—and it is routinely done by prosecutors to aid 

their cases. We have all seen it.’’ He further stated: ‘‘Leaking the 

identity of a covert CIA agent is against the law. There is no justification for a reporter holding information. In cases like these, the 

harm done by the leak and the need to punish the leaker often far 

outweighs the need to keep a source confidential.’’ We agree. 

Since most grand jury leaks are made to journalists, this bill will 

effectively override Rule 6(e)(2) of the Federal Rules of Criminal 

Procedure, which states that matters occurring before a federal 

grand jury must be kept secret. The majority argues that that the 

rule of construction in Section 9 that ‘‘Nothing in this Act may be 

construed to . . . modify the requirements of . . . Federal laws or 

rules relating to grand jury secrecy,’’ protects grand jury secrecy. 

However, what Section 9 gives with one hand, it takes away with 

the other, stating: ‘‘Except that this Act shall apply in any proceeding and in connection with any issue arising under . . . the 

Federal laws or rules relating to grand jury secrecy.’’ 

In other words, as Judge Mukasey and Mr. McConnell noted regarding identical language, this ‘‘does nothing to restrict the application of the bill from sheltering violations of longstanding and important protections for grand jury deliberations. In other words, 

this privilege can and will be used to protect leakers of grand jury 

information.’’ 67

The Committee rejected an amendment by Senator Sessions to 

exclude federal grand jury information from the privilege by a vote 

of 7 to 11. The majority argued that the amendment would apply 

in cases of leaks made in an attempt to expose grand jury corruption and therefore would protect prosecutorial misconduct or grand 

jury bribery. However, instead of leaking sensitive grand jury information to a reporter, a source has several alternatives to ensure integrity of a trial—a judge, the Department of Justice, defense attorneys. 

Notably, Attorney General Holder’s letter contains not one mention of this ‘‘act of communicating the documents or information’’ 

language, which explicitly creates a court privilege for those committing federal crimes.68

Section 4: Exception to prevent death, kidnapping, substantial bodily injury, sex offenses against minors, or incapacitation or destruction of critical infrastructure 

Section 4 states that the general privilege in Section 2 does not 

apply to any protected information that is reasonably necessary to 

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69S. 987, supra note 33, at § 4. 

70Letter from Brian A. Benczkowski, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, to Rep. Lamar Smith, Ranking Member., Comm. on the Judiciary, U.S. House (July 31, 

2007) (emphasis in original) (Appendix XI). 

stantial bodily harm, child sex crime, or incapacitation or destruction of critical infrastructure.69 This exception is entirely prospective, as it would protect sources in instances where law enforcement was investigating or solving violent acts or incapacitation or 

destruction of critical infrastructure that had already occurred. 

This limitation makes Section 4’s so-called exception largely 

worthless, as most of the investigations that will be implicated by 

this privilege will naturally concern incidents that have already occurred. As much as we would like to hope that government officials 

will be able to stop crimes from occurring in the first place, the reality is that most law enforcement work deals with bringing wrongdoers to justice after they have committed a crime, not before. Because of this reality, the exceptions in this bill will apply only to 

a small subset of cases—those where the attack or crime has not 

yet occurred. Here is but one real-life example from the Justice Department that illustrates the folly of this approach: 

In 2004, the notorious ‘‘BTK Strangler’’ emerged from 

years of silence to begin corresponding with media representatives and law enforcement entities in Wichita, Kansas. The killer calling himself ‘‘BTK’’ had terrorized Wichita with a string of violent homicides, but 13 years had 

elapsed since his last murder. In repeated correspondence, 

‘‘BTK’’ described previously nonpublic details of the past 

murders and provided corroborating evidence such as photographs taken during the crimes. Yet authorities were not 

able to identify a suspect. ‘‘BTK’’ then sent a computer 

disk to a television station. The television station turned 

over the disk to police, and forensic experts were able to 

extract hidden information from the disk that tied it to a 

particular computer and user. This enabled law enforcement officers to arrest Dennis Rader, who eventually pled 

guilty to 10 murders. 

If the television station had refused to disclose the computer disk, and [media shield legislation] had applied in 

the case, Rader might never have been apprehended and 

the families of the murder victims would still be awaiting 

justice. Because all of the information related to long-past 

killings, law enforcement would not be able to demonstrate 

that disclosure was necessary to prevent imminent death. 

Even if it is assumed that a responsible media outlet 

would voluntarily turn over information related to a serial 

killer, we cannot expect that criminals will always provide 

information to responsible media, or that a ‘‘mainstream’’ 

publication will always turn over information related to a 

less sensational crime.70

Excluding the investigation or solving of violent crimes from Section 4 is a serious oversight. 


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71S. 987, supra note 33, at § 5(a)(2)(A). 72 Id. at § 5(a)(2)(B). 73 Id. at § 5(b). 74Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 26, at 3. 

Section 5: Exception to prevent terrorist activity or harm to the national security 

Section 5 creates two classes of exceptions to Section 2’s general 

privilege. In a criminal investigation or prosecution of the disclosure of ‘‘properly classified’’ information, Section 2 will not apply if 

a court finds by a preponderance of the evidence that the protected 

information sought would ‘‘materially assist’’ the federal government in ‘‘preventing or mitigating’’ an act of terrorism or ‘‘other 

acts that have caused or are reasonably likely to cause significant 

and articulable harm to national security.’’ 71 In any other criminal 

investigation or prosecution for the leak of classified or otherwise 

privileged information, Section 2 will not apply if a court finds by 

a preponderance of the evidence that the information sought would 

‘‘materially assist’’ the federal government in ‘‘preventing or mitigating,’’ or ‘‘identifying the perpetrator’’ of an act of terrorism or 

‘‘other acts that have caused or are reasonably likely to cause significant and articulable harm to national security.’’ 72 In making 

this determination, a court is instructed to give ‘‘appropriate deference’’ to a specific factual showing by the head of any executive 

branch agency or department concerned.73

Section 5 also states that any other investigation or prosecution 

having to do with the disclosure of classified information is covered 

by Section 2’s general privilege unless it prevents or mitigates a 

terrorist act or harm to national security. Additionally, Section 5 

provides that the potential for additional unlawful disclosure of the 

protected information by the source, shall not, without an additional factual showing, be sufficient to establish that disclosure of 

the information would materially assist the federal government in 

‘‘preventing or mitigating’’ an act of terrorism. 

Although Section 5 provides a limited exception to the journalist 

privilege for acts of terrorism or ‘‘significant and articulable’’ harm 

to the national security, this exception is far too narrow. On its 

face, the classified information exception extends only to potential 

or future harms to national security—harms that still can be ‘‘prevented’’ or ‘‘mitigated.’’ As noted by Judge Mukasey and Mr. 

McConnell with respect to similar predecessor legislation, this exception ‘‘expressly would not apply in cases where the Government 

is investigating serious harms (other than leaks of classified information) that have already occurred, including acts of sabotage and 

outright attacks on the United States. In such cases, the Government could seek to compel disclosure only as authorized under the 

more onerous provisions of Section 2.’’ 74

Even in other cases involving national security, the exception 

only permits investigation into past events to ‘‘identif[y] the perpetrator.’’ It would not apply to investigations of attacks that have already occurred once the perpetrator has been identified. Investigation into the perpetrator’s terrorist ties and finances, or to cull together evidence for a future criminal prosecution, would not be covered by the exception. Thus, for instance, Section 5 would not cover 


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75Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 11, at 5. 76S. 1692, 111th Cong. (as reported by S. Comm. on the Judiciary, Oct. 13, 2009). 77 Executive Business Meeting, S. Comm. on the Judiciary, 111th Cong. (Oct. 1, 2009). 78 S. 987, supra note 33 at § 5(a)(2)(A) (2013). 

investigation into the Fort Hood shooting or the attempted bombing of Northwest Flight 253 on Christmas Day 2009 or the attempted attack on Times Square in 2010, as the perpetrators of 

these terrorist acts have already been identified. 

The inclusion of a materiality requirement and a ‘‘significant and 

articulable harm to national security’’ standard in Section 5 is also 

cause for concern. Essentially, the government must show, by a 

preponderance of the evidence, both that the information sought 

will be sufficiently significant to influence the outcome of the investigation and that the harm under investigation is itself significant. 

It is not coincidence that the standard for most investigative authorities—such as a subpoena—is relevance, with only the most intrusive requiring a heightened probable cause standard. This reasoned approach recognizes that in the early stages of an investigation, a higher standard is often incompatible with the facts that 

can or should be expected to be known about a specific offense 

when it first comes to light. But S. 987 turns this long-standing 

and well-tested investigative pyramid on its head by requiring the 

higher standard of preponderance of the evidence for the use of 

basic methods that, in turn, are supposed to provide the foundation 

for an investigation. The significance and scope of a national security threat is often not apparent at the early stages of an investigation and could be impossible to prove. S. 987 would require investigators and prosecutors to conduct a mini-trial to prove the nature 

of a threat, well before the full picture has become clear. Investigators are supposed to gather information to assess threats, not prove 

threats in court to get access to information about the same threat. 

As Judge Mukasey and Mr. McConnell noted with respect to a 

similar provision in similar predecessor legislation, this provision 

‘‘transfers to the courts such core determinations as when investigative subpoenas are necessary and what constitutes harm to the 

national security. Not only is this shift made, but in many cases, 

the Government will need to make its showing at an early state of 

investigation. This is precisely backwards.’’ 75

Further, the ‘‘appropriate deference’’ that courts must show to 

executive branch agencies is an extremely vague standard and is 

likely to be interpreted in different ways by different courts. In the 

fall of 2009, in the USA PATRIOT Act reauthorization context, this 

Committee voted to reject a similar standard—including the same 

use of the word ‘‘appropriate’’—in the context of the nondisclosure 

of national security letters.76 S. 987 brings back this meaningless 

‘‘appropriate deference’’ language, which the Committee rejected 

during that debate in favor of a more meaningful ‘‘substantial 

weight’’ standard.77

In addition, Section 5 requires the government to show in most 

cases involving leaked classified information that the information 

was ‘‘properly classified’’ and that the leak was ‘‘reasonably likely 

to cause significant and articulable harm to national security.’’ 78

As Judge Mukasey and Mr. McConnell noted with respect to the 


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79Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 5, at 3. 80Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice, & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 22, at 3. 81Testimony of Deputy Attorney Gen. Paul J. McNulty, supra note 7, at 8. 82Gabriel Schoenfeld, Why Journalists Are Not Above the Law, COMMENTARY MAGAZINE, February 2007. 

use of this phrase in similar predecessor legislation, this ‘‘raises the 

troubling prospect of every leak investigation becoming a mini-trial 

over the propriety of the Government’s classification decision.’’ 79 It 

will ‘‘invite litigants and courts to second-guess the classification 

decision [by intelligence and law enforcement officials] without the 

benefit of either experience or expertise in—to say nothing of legal 

responsibility for—matters of national security.’’ 80 During the 

Committee’s last hearing on this topic in 2006, then-Deputy Attorney General Paul McNulty testified regarding the problem with 

giving judges the authority to determine what is ‘‘properly classified’’: 

I think a significant problem . . . [is] the court also has 

to make a decision that this information has been properly 

classified. And that in itself is a big undertaking because 

it then puts the judge in the position of making—or exercising the kind of judgment that experts in the field have 

to exercise, which is to know that if this information were 

to get into the hands of the enemy or do harm to the 

United States and other aspects of classification.81

As one commentator has noted, ‘‘[t]he main effect of a shield law 

would thus be to the [sic] draw the judicial branch into the very 

heart of foreign-policy decisionmaking, requiring judges to evaluate 

matters that they lack either the expertise or the experience to assess. As a result, the confusion that now exists among the various 

federal circuit courts would not be cleared up; it would be deepened.’’ 82

Moreover, as noted by Judge Mukasey and Mr. McConnell, 

such second-guessing would involve the application of a 

novel standard that does not even track the standards that 

are used in national security classifications. Specifically, to 

persuade a judge to compel disclosure . . . the Government will have to show that the leak caused or will cause 

‘‘significant and articulable harm’’ to the national security. 

This standard has no analogue in the intelligence community. Pursuant to Executive Order 12958, as amended, the 

Government classifies information at three basic levels: 

‘‘Confidential,’’ ‘‘Secret,’’ and ‘‘Top Secret.’’ By definition, 

those terms apply, respectively, to information the unauthorized disclosure of which reasonably could be expected 

to cause ‘‘damage’’ (Confidential), ‘‘serious damage’’ (Secret), and ‘‘exceptionally grave damage’’ (Top Secret) to national security. Thus, a leak of properly classified [information] by definition constitutes harm to the national security. Particularly with respect to ‘‘Confidential’’ information, however, the harm is arguably less severe than the 

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83 In explaining her vote, Senator Feinstein stated: ‘‘[C]lassified information may seem harmless to one person where it may unveil the possibility of a source, the identification of a source, 

or a method, and if it is classified, it is classified, and there is a prison sentence of up to 10 

years. The problem is it is hard to investigate and convict this. So I do not want to make that 

more difficult. . . . I want to talk to Director [of National Intelligence] Clapper about his recommendation. . . . But there is every reason to believe every one of us really ought to be concerned about leaks.’’ Executive Business Meeting, S. Comm. on the Judiciary, 113th Cong. (Sept. 

12, 2013), available at: http://www.judiciary.senate.gov/hearings/hearing.cfm?id=6225bf1b82 

d2592b6b470bc0d4b52acb (last visited Sept. 30, 2013). 84S. 987, supra note 33, at § 6(a). 85 Id. at § 6(b). 86 Id. at § 6(c)(1). 87 Id. at § 6(c)(2). 88 Id. at § 6(c)(3). 

erly classified information to unauthorized disclosure while 

effectively blocking any investigation or prosecution of 

those who leak such information. 

This is not only a major oversight, but also could effectively 

render null and void the existing classification system without establishing any safeguards in its place. 

Finally, it is disconcerting that the fact that the source is likely 

to leak classified or other sensitive information again is not enough 

to remove a case from Section 2’s general privilege. This means 

that information that the government cannot tie to a future act of 

terrorism, or harm to national security, would be covered under the 

privilege both in the present and in the future. The Committee rejected an amendment by Senator Sessions by a vote of 6 to 11 with 

Senator Feinstein voting ‘‘present,’’ 83 to exempt from S. 987 any 

cases concerning classified information. It also rejected by a vote of 

7 to 11 an amendment by Senator Cornyn to exempt from S. 987 

material support of terrorism cases. 

Section 6: Compelled disclosure from communications service providers 

Section 6 applies the protections from Sections 2 through 5 to 

records and other information related to a business transaction between a communications service provider and a journalist.84 A 

court seeking disclosure must provide the journalist who is a party 

to the business transaction notice of the request and subpoena as 

well as an opportunity to be heard.85 The notice provision may be 

delayed for not more than 45 days only if the court determines by 

clear and convincing evidence that notice would pose a ‘‘clear and 

substantial threat to the integrity of a criminal investigation, 

would risk grave harm to national security, or would present an 

imminent risk of death or serious bodily injury.’’ 86 The delayed notification period is limited to one 45-day period and one renewal of 

the initial 45-day period, if the judge makes a new determination 

by clear and convincing evidence.87 This section provides that a 

‘‘clear and substantial threat to the integrity of a criminal investigation’’ exists if a judge finds by clear and convincing evidence 

that the target may learn of the investigation and destroy evidence 

if notice is provided.88

Section 6 also extends the protections of this bill to 18 U.S.C. 

§ 2709, which authorizes the issuance of national security letters 

(‘‘NSL’’) for subscriber information, toll billing records information, 

and electronic communication transactional records. The provisions 

of Sections 2 through 5 apply to NSL requests for information 


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89 Id. at § 6(a)(2). 90 Id. at § 6(c)(1). 

under § 2709, except that in criminal investigations, the court will 

have to determine that there are reasonable grounds to believe that 

a crime has occurred or that the DOJ complied with its regulations 

in Section 50.10 of title 28, Code of Federal Regulations (‘‘Policy on 

Issuing Subpoenas to Members of the News Media’’), which include 

the requirement that the government exhausted all reasonable alternative sources. However, the court would still have to determine 

that: (1) there are reasonable grounds to believe that the information sought is essential to the investigation; and (2) the journalist 

failed to establish by clear and convincing evidence that the disclosure of information identifying his or her source or the information 

obtained from that source would be contrary to the public interest.89

Unless a journalist is given notice and an opportunity to be 

heard, this section prohibits a judge from compelling: (1) a covered 

service provider to comply with an NSL or other legal process related to a journalist’s account with such service provider, or (2) a 

journalist to testify or disclose a document. Although subsection (c) 

allows the government to delay this hearing for up to two 45-day 

periods, the covered service provider cannot provide the requested 

documents until it receives a court order or the consent of the journalist. 

Section 6 again will force the government to wage a mini-trial to 

meet its burden, not only to overcome the general privilege set 

forth in Section 2, but even to delay notice by proving by clear and 

convincing evidence that notice ‘‘would pose a clear and substantial 

threat to the integrity of a criminal investigation, would risk grave 

harm to national security, or would present an imminent risk of 

death or serious bodily injury.’’ 90

Under current law, notice of a subpoena in general may be delayed for indefinitely renewable 90-day periods. It is unclear why 

delay in this context should be limited to only one 45-day renewal 

period. This limitation presents a significant administrative burden 

on the government, as the information obtained in the first 45 days 

of an investigation may not produce sufficient evidence to show a 

‘‘clear and substantial threat’’ to the integrity of the investigation 

exists. This could result in federal investigators delaying subpoenaing records in time-sensitive investigations to prevent the 

target from finding out about the investigation. Additionally, investigations into terrorist recruiting and financing can take years to 

unravel. Such cases likely involve subpoenaing bank and telephone 

records. If the government can only delay such notification to covered journalists for a maximum of 90 days, it could easily end or 

expose the entire investigation. For instance, in May of this year, 

two Somali men, Omar Mohamed and Kamal Hassan, were convicted of recruiting individuals in Minnesota for the designated terrorist organization al-Shabab. The FBI’s investigation lasted four 

years, which resulted in 18 individuals being charged with material 

support to al-Shabab. One has to wonder whether the same outcome would have been reached had this bill been law. Moreover, 

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91 Id. at § 7. 92 Id. at § 8(a). 93 Id. at § 8(c). 94 Id. at § 8(d). 

fort to require unyielding notification of all subpoenas, regardless 

of the recipient or type of investigation. 

Finally, the definition of ‘‘clear and substantial threat to the integrity of a criminal investigation’’ leaves out several categorical 

situations that are found under current subpoena authority under 

Title 18 of the United States Code, including flight, tampering with 

evidence and intimidation of a potential witness. Limiting the delayed notification to only cases of ‘‘destruction of evidence’’ could seriously hamper law enforcement’s ability to delay notification, even 

when the facts of a particular investigation demand it. 

Section 7: Sources and work product produced without promise or 

agreement of confidentiality 

Section 7 states that nothing in S. 987 ‘‘shall supersede, dilute, 

or preclude any law or court decision compelling or not compelling 

disclosure’’ of ‘‘information identifying a source who provided information without a promise or agreement of confidentiality made by 

the covered journalist as part of engaging in journalism’’ or 

‘‘records, other information, or contents of a communication obtained without a promise or agreement that such records, other information, or contents of a communication would be confidential.’’ 91

Thus, S. 987 appears to protect only confidential communications. 

Although Section 7 is presumably intended to limit S. 987 to confidential communications between a source and a journalist, it does 

not put the burden on the journalist to demonstrate that he or she 

is acting under a promise of confidentiality. Rather, Section 2 appears to put the government to its high burden without requiring 

the journalist to demonstrate any such promise or agreement, making the limitation of ‘‘protected information’’ to confidential communications entirely toothless. As the purpose of the privilege set 

forth in S. 987 is to permit a journalist to protect a confidential 

source, there is no need for this privilege to exist in instances 

where the source has waived confidentiality. 

Section 8: Procedures for review and appeal 

Pursuant to Section 8, upon a showing of good cause, a federal 

court can receive and consider a submission from the parties in 

camera, under seal, or, ‘‘if the court determines it is necessary, ex 

parte.’’ 92 A court can find the covered journalist in civil or criminal 

contempt if he or she fails to comply with an order of a federal 

court compelling disclosure of protected information. ‘‘To the extent 

practicable,’’ a court must make its determination within 30 days 

after receiving such a motion.93 All appeals under this section must 

be ‘‘expedite[d] to the greatest extent possible.’’ 94

Section 8, however, does not prevent a journalist from defying a 

contempt order, even after a federal court concludes that the government has met the extremely high bar for compelling disclosure. 

Journalists can continue to invoke the privilege even after the 

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95 Id. at § 8(a) (emphasis added). 96Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 26, at 7. 97See 18 U.S.C. app. 3, §§ 1, 4. 

cant burdens upon the government while leaving ‘‘covered journalists’’ free to flout the very law that protects them. This is inequitable. If a journalist is going to seek protection under a shield statute, he or she should have to comply with the statute in its entirety: if the court concludes that the government has met its high 

burden, the information should be turned over. 

Also, Section 8 states that ‘‘upon a showing of good cause, [a] 

judge of the United States may receive and consider submissions 

from the parties in camera, under seal, and if the court determines 

it is necessary, ex parte.’’ 95 It is not sufficient to give unfettered 

discretion to the court to air sensitive and classified information in 

public. The 2008 views letter from Judge Mukasey and Mr. McConnell stated that leaving this decision to the court’s discretion will 

require the government to ‘‘almost certainly have to reveal additional sensitive and classified information.’’ 96 The lack of a mandatory language (e.g., ‘‘upon a showing of good cause . . . [a] judge 

of the United States shall receive and consider submissions from 

the parties’’) could leave the government in the untenable situation 

of having to either expose sensitive or classified information in 

open court, or drop the case. In other words, even if the government has shown good cause, the court can still tell the government 

it has to litigate in open court. Supporters of S. 987 have not justified the need for a judge to be able to force the government to expose sensitive information in open court, even where the government has shown good cause for proceedings to be secret. 

The majority views argue that under the Classified Information 

Protection Act (‘‘CIPA’’), federal district courts have the ability to 

make some accommodation of the government’s interest in non-disclosure. But CIPA only applies to criminal matters,97 and therefore 

would not apply in a case involving the subpoena of a journalist, 

which is a civil proceeding. In civil proceedings, the government 

must assert the state secrets privilege to protect against the disclosure of classified information. Regardless, CIPA and the state secrets privilege apply to cases involving classified information, but 

many cases involve sensitive information that is not necessarily 

classified, e.g., white collar criminal investigations that take years 

to develop and could be undone if the nature of the investigation 

is released prematurely; cases involving gangs and organized crime 

where, if sensitive information were prematurely released, could 

lead to the intimidation of or physical harm to witnesses. 

Section 9: Rule of construction 

Section 9 provides that nothing in S. 987 may be construed to 

preempt any law or claim to defamation, slander or libel; modify 

the laws regarding grand jury secrecy—‘‘except that this Act shall 

apply to in any proceeding and in connection with any issue arising 

under that section or the Federal laws or rules relating to grand 

jury secrecy’’; create new obligations or modifications with respect 

to Foreign Intelligence Surveillance Act (‘‘FISA’’), or preclude volVerDate Mar 15 2010 03:56 Nov 09, 2013 Jkt 085431 PO 00000 Frm 00050 Fmt 6604 Sfmt 6602 E:\HR\OC\SR118.XXX SR118

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98S. 987, supra note 33, at § 9. 99 Id. at § 3(b). 100 Id. at 9(2). 101The ‘‘additional language’’ referred to by Judge Mukasey and Mr. McConnell, which was 

included in similar predecessor legislation in an attempt to address concerns expressed by them 

and others in the intelligence and law enforcement communities, appears in Section 9 of S. 987 

verbatim: ‘‘Nothing in this Act may be construed to . . . create new obligations, or affect or modify the authorities or obligations of a Federal entity with respect to the acquisition or dissemination of information pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 

et seq.).’’ 102Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 26, at 4–5 (emphasis added). 103Letter from Eric Holder, Att’y Gen., U.S. Dep’t of Justice, supra note 32. 

untary disclosure to a federal entity in a situation that is not governed by S. 987.98

This section is mere window-dressing, as it in no way modifies 

Section 3’s proviso that where ‘‘the alleged criminal or tortious conduct is the act of communicating the documents or information at 

issue,’’ 99 the privilege set forth in Section 2 remains available to 

the journalist. If there was any doubt on this point, the ‘‘Rule of 

Construction’’ makes clear that ‘‘this Act shall apply in any proceeding and in connection with any issue arising under . . . rules 

relating to grand jury secrecy.’’ 100

Further, similar language was criticized by Judge Mukasey and 

Mr. McConnell in their 2008 views letter: 

First, the provision leaves out key, non-FISA tools that 

are essential to the protection of the national security. The 

wire-tapping provisions of Title III [and] pen-register trapand-trace authority . . . are as important, and in some 

cases more important, to the Government’s ability to investigate those who have caused or would cause harm to our 

national security (to say nothing of other serious crimes 

unrelated to the national security). Yet this bill remains silent as to them, leaving one with the distinct impression 

that this legislation can and will—and indeed is intended 

to—interfere with the Government’s use of those tools in 

cases where it seeks information provided to a journalist 

by a confidential source. Prior to September 11, 2001, it 

was precisely this type of ambiguity between application of 

tools available to intelligence and law enforcement that created ‘‘the wall’’—a series of barriers to information sharing 

that had serious consequences for our counterterrorism efforts. 

Second, it is unclear that the additional language 101 will 

in fact protect the Government’s ability to use FISA effectively. The goal, we are told, is to ensure that the Government can continue to gather and disseminate intelligence 

and surveillance information pursuant to a FISA court 

order. Why not then simply say, ‘‘The provisions of this Act 

shall not apply to the use of the authorities provided for 

in the Foreign Intelligence Surveillance Act or to any information acquired thereunder’’? 102

Notably, Attorney General Holder’s letter does not address how 

this language, which was deemed woefully inadequate by his predecessor, is now acceptable.103


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104Letter from Robert Gates, Sec’y of Defense, U.S. Dep’t of Defense, supra note 28, at 1. 105Letter from Michael B. Mukasey, Att’y Gen., U.S. Dep’t of Justice & J.M. McConnell, Dir. 

of Nat’l Intelligence, supra note 26, at 6. 

Section 11: Definitions 

As discussed previously, the definitions of ‘‘covered journalist’’ 

covers an astonishingly broad class of persons. Although the Committee accepted an amendment introduced by Senators Feinstein 

and Durbin by a vote of 13 to 5, which purports to narrow that definition, significant concerns remain. 

For example, although S. 987 purports to carve out agents of foreign powers and designated terrorist organizations from the definition of ‘‘covered journalist,’’ many terrorist media are neither ‘‘designated terrorist organizations’’ nor covered entities under the bill. 

Thus, all individuals and entities who ‘‘gather’’ or ‘‘publish’’ information about ‘‘matters of public interest’’ but who are not technically designated terrorist organizations, foreign powers, or agents 

of a foreign power will be entitled to S. 987’s protections—no matter how closely linked they may be to terrorists or other criminals. 

However, in his 2008 views letter, then-Secretary of Defense 

Gates warned about a nearly identical exception in similar predecessor legislation: ‘‘This would have the unintended consequence of 

encouraging unauthorized disclosures and increasing our nation’s 

vulnerability to adversaries’ counterintelligence efforts to recruit 

covered persons.’’ 104 Similarly, Judge Mukasey and Mr. McConnell 

warned that the prohibition on a ‘‘designated terrorist organization’’ from being covered is insufficient and that ‘‘individuals seeking to avail themselves of this privilege will be able to do so as long 

as they can stay one step ahead of the agencies responsible for designating terrorist organizations.’’ 105

Also, the definition of protected information makes multiple references to the term ‘‘journalism,’’ which is not defined in S. 987. 

Finally, the definition of ‘‘covered journalist’’ raises serious First 

Amendment concerns, as discussed in the Additional Views submitted herein by Senators Cornyn, Sessions, Lee, and Cruz. 

CONCLUSION

S. 987, the ‘‘Free Flow of Information Act of 2013,’’ would dramatically shift the process by which law enforcement goes about 

compelling disclosure of information from journalists. By establishing a nearly impenetrable privilege at the federal level, it would 

seriously impede criminal investigations and prosecutions, including those dealing with cases of terrorism and national security. 

There is no question that a free press is vital to our democracy. 

Nevertheless, we must remember that the Constitution also speaks 

of securing the ‘‘blessings of liberty to ourselves and our posterity,’’ 

insuring ‘‘domestic tranquility,’’ and providing ‘‘for the common defense.’’ In the face of the most devastating leaks of classified information in our nation’s history and a continued struggle to protect 

ourselves from another terrorist attack, we should not respond to 

overreaches by the Obama administration with an overbroad piece 

of legislation that does not even address those transgressions—as 

the bill’s sponsors concede—at the expense of the rule of law and 

the security of the American people. 


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In their 2008 letter, the heads of the CIA, FBI, NSA, Defense Intelligence Agency, Department of Homeland Security, and the Departments of Defense, State, and Treasury, among others, relayed 

serious concerns about similar predecessor legislation, many of 

which are relevant to this bill: 

[T]he bill will undermine our ability to protect intelligence sources and methods and could seriously impede 

national security investigations . . . The high burden 

placed on the Government . . . will make it difficult, if not 

impossible, to investigate harms to the national security 

and only encourage others to illegally disclose the Nation’s 

sensitive secrets. These problems, in turn, will impair our 

ability to collect vital foreign intelligence, including 

through critical relationships with foreign governments 

which are grounded in confidence in our ability to protect 

information from public disclosure. 

Safeguarding classified information in a free and open 

society already is a challenge for the intelligence community. We ask that Congress not make that challenge even 

more daunting. 

Now more than ever, in the face of historic breaches of our nation’s security, Congress should heed this warning. Before proceeding with this or any similar legislation, we must first determine how it will affect the ability of the United States to keep critical classified and sensitive information from our enemies, and to 

identify and hold accountable those who willfully jeopardize the security of this nation by leaking classified information. 

JEFF SESSIONS. 

JOHN CORNYN. 


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ADDITIONAL MINORITY VIEWS FROM SENATORS CORNYN, 

SESSIONS, LEE, AND CRUZ 

On December 15, 1791, the United States of America ratified the 

Bill of Rights—the first ten amendments to the U.S. Constitution. 

The first among them states: ‘‘Congress shall make no law . . . 

abridging the freedom . . . of the press[.]’’ United States Constitution, amend. I. 

The freedom of the press does not discriminate amongst groups 

or individuals—it applies to all Americans. As the Supreme Court 

has long recognized, it was not intended to be limited to an organized industry or professional journalistic elite. See Branzburg v. 

Hayes, 408 U.S. 665, 704 (1972) (the ‘‘liberty of the press is the 

right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is 

a fundamental personal right[.]’’); Lovell v. Griffin, 303 U.S. 444, 

452 (1938) (‘‘The liberty of the press is not confined to newspapers 

and periodicals. It necessarily embraces pamphlets and leaflets.... The press in its historic connotation comprehends every 

sort of publication which affords a vehicle of information and opinion.’’). 

The Founders recognized that selectively extending the freedom 

of the press would require the government to decide who was a 

journalist worthy of protection and who was not, a form of licensure that was no freedom at all. As Justice White observed in 

Branzburg, administering a privilege for reporters necessitates defining ‘‘those categories of newsmen who qualified for the privilege.’’ 408 U.S. at 704 That inevitably does violence to ‘‘the traditional doctrine that liberty of the press is the right of the lonely 

pamphleteer who uses carbon paper or a mimeograph just as much 

as of the large metropolitan publisher who utilizes the latest photocomposition methods.’’ Id. The First Amendment was adopted to prevent—not further—the 

federal government licensing of media. See Lovell, 303 U.S. at 451 

(striking an ordinance ‘‘that . . . strikes at the very foundation of 

the freedom of the press by subjecting it to license and censorship. 

The struggle for the freedom of the press was primarily directed 

against the power of the licensor.’’). 

But federal government licensing is exactly what the Free Flow 

of Information Act would create. The bill identifies favored forms 

of media—‘‘legitimate’’ press—by granting them a special privilege. 

That selective grant of privilege is inimical to the First Amendment, which promises all citizens the ‘‘freedom of the press.’’ See 

Branzburg, 408 U.S. at 704 (‘‘Freedom of the press is a fundamental personal right[.]’’) (emphasis added). It also threatens the 

viability of any other form of press. The specially privileged press 

will gain easier access to news. That will tip the scales against its 


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competitors and make it beholden to the government for that competitive advantage. A law enacted to protect the press from the 

state will, in fact, make that press dependent upon the federal government—anything but free. 

Proponents of this bill suggest that, because the Constitution 

does not provide a reporter’s privilege, Congress’s provision of a 

limited privilege cannot raise any constitutional concerns. Those 

proponents misunderstand—and thus run afoul of—the First 

Amendment. The First Amendment was adopted to prevent press 

licensure. While it does not create a ‘‘reporter’s privilege’’ on its 

own, it abhors the selective grant of privilege to one medium over 

another. The American Revolution was stoked by renegade pamphleteers and town criers who used unlicensed presses to overthrow tyranny. Today, ‘‘any person with a phone line can become 

a town crier with a voice that resonates farther than it could from 

any soapbox. Through the use of Web pages, mail exploders, and 

newsgroups, the same individual can become a pamphleteer.’’ Reno 

v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997). If today’s 

town crier or pamphleteer must meet a test set by the federal government to avail themselves of liberty, we have gone less far from 

tyranny than any of us want to admit. 

This bill runs afoul of the First Amendment to the United States 

Constitution and amounts to de facto licensing. It would weaken 

the newly-illegitimate press, render the specially privileged press 

supplicant to the federal government and ultimately undermine liberty. 

This legislation also raises a number of serious national security 

concerns, as discussed in the minority views authored by Senator 

Sessions. 

For these reasons, we oppose this bill. 

JOHN CORNYN. 

JEFF SESSIONS. 

MICHAEL S. LEE. 

TED CRUZ. 


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Appendix I 
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U.S. Department of .IUS!iCl~ 

OttIC!: 

September 
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The Honorable Patrick Leahy 

statements of the Department's views to your attention as a supplement to this letter. In this 

letter, the Department wishes to focus on the following six objections, set out more fully below: 

FFIA. 

1. The FFIA's definition of a journalist appears to provide protections to a 

very broad class of individuals and would raise significant obstacles to law 

enforcement. 

2. The FFIA would make it extremely difficult to enforce certain Federal 

criminal laws, particularly those pertaining to the unauthorized disclosure 

of classified information, and could seriously impede other national 

security investigations and prosecutions, including terrorism prosecutions; 

3. The FFIA would impinge on a criminal defendant's constitutional right 

under the Sixth Amendment to subpoena witnesses on his behalf; 

4. The FFIA unconstitutionally transfers core Executive branch powers and 

decision-making to the Judiciary; 

5. The FFIA also threatens to limit other judicial powers. 

6. The FHA's provisions for protecting information in the possession of 

"communications services providers" fail to define the types of "business 

transactions" to which they apply and could dangerously limit the ability 

of courts to delay notice of a request. 

For all of these reasons and those that follow, the Department strongly opposes The 

Introduction 

As an initial matter, the Department of Justice has long recognized that the media plays a 

critical role in our society, a role that the Founding Fathers protected in the First Amendment. In 

recognition of the importance of the news media to our Nation, the Department has, for over 35 

years, provided guidance to Federal prosecutors that strictly limits the circumstances in which 

they may issue subpoenas to members of the press. See 28 C.F.R. § 50.10. The exhaustive and 

rigorous nature of this policy is no aecident; it is designed to deter prosecutors from even 

requesting approval for subpoenas that do not meet the standards set forth in the Department's 

guidelines. As a result, prosecutors seek to subpoena journalists and media organizations only 

when it is necessary to obtain important, material evidence that cannot reasonably be obtained 

through other means. 

The effectiveness of this policy, and the seriousness with which it is treated within the 

Department, contradict the allegations some have made about the Justice Department's alleged 

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The Honorable Patrick Leahy 

disregard for First Amendment principles. Since 1991, the Department has approved the 

issuance of subpoenas to reporters seeking confidential source information in only 19 cases.2 

The authorizations granted for subpoenas of source information have been linked closely to 

significant criminal matters that directly affect the public's safety and welfare. 

Moreover, while critics argue that there has been a marked increase in the number of 

confidential-source subpoenas approved by the Department in recent years, such claims cannot 

withstand scrutiny, as the following chart makes clear: 

In only two of those nineteen matters was the Government seeking to question a reporter under 

oath to reveal the identity of a confidential source. In one of the two matters, the media memher was 

willing to identify his source in response to the subpoena. In the other matter, the Department withdrew 

the media subpoenas after it had obtained other evidence concerning the source of the information and 

that source agreed to plead guilty. Of the nineteen source-related matters since 1991, only four have been 

approved since 200 I. While the nineteen source-related matters referenced above do not include any 

media subpoenas issued in matters from which the Attorney General was reeused. the only reeusal matter 

in which subpoenas were issued involved facts where all four federal judges to review the subpoena-the 

Chief Judge of the District Court and the three judge panel of the appeals court-found that the facts of 

the case warranted enforcement of the subpoena under any version of a qualified privilege, no matter how 

stringent. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1150 (D.C. Cir. 2006). Tn that 

same case, it is important to note, the Special Prosecutor adhered to-and was found by the Court to have 

complied with-the Department's guidelines as set forth al28 C.F.R. § 50.10. See In re Special Counsel 

Investigation, 332 F. Supp.2d 26, 32 (D. D.C. 2004) ("Assuming. arguendo, that the 001 Guidelines (for 

the issuance of subpoenas to the news medial did vest a right in the movants in these cases, this court 

holds that the DOl guidelines are fully satisfied by the facts of this ease as presented to the court in the ex 

parte affidavit of Patrick Fitzgerald.") 

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The Honorable Patrick Leahy 

Year Number of Cases 1n which 

Source-Related Subpoenas 

Were Approved 

1992 3 

1993 2 

1994 0 

1995 3 

1996 I 

1997 3 

1998 2 ----.-,--~----. -". 

1999 I 

2000 I 

! 0 

2001 2 

2002 0 

2003 0 

2004 1 

2005 0 

2006 1 

These numbers demonstrate a decrease in the number of cases in which the Department has 

approved the issuance of subpoenas seeking confidential source information in recent years: of 

thc 19 source-related matters since 1991, only four have been approved since 200 I. 

In light of this record of restraint, the Department believes that this legislation would 

work a dramatic shift in the law with no evidence that such a change is warranted. Supporters of 

this legislation contend that, in the absence of a reporter's privilege, sources and journalists will 

be chilled, newsgathering will be curtailed, and the public will suffer as a result. Such arguments 

are not new. Thirty-five years ago, when the Supreme Court considered the issue ofa reporter's 

privilege in the landmark case of Branzhurg Y. Hayes,408 U.S. 665 (1972), litigants and 

numerous amicus briefs argued that, in the absence of such a privilege, the free flow of news 

would be diminished. The Court considered and rejected such arguments, finding that 

"[e]stimates of the inhibiting effect of ... subpoenas on the willingness ofinformants to make 

disclosures to newsmen are widely divergent and to a great extent speculative." Id. at 693-94. 

Given the profusion of information that has become available to the public in the 35 years since 

Branzburg-all of which has come without the intervention of any Federal media shield law-it 

is difficult to dispute the Court's conclusion. Information now flows far more freely and 

widely--and on more topics of interest to the public-tban at any time in our Nation's history. 

Allegations made by supporters of this legislation that this free flow of information has been 

stifled or will diminish in the absence of a statutory privilege are as groundless today as they 

were 35 years ago. Media shield legislation, as then-Deputy Attorney General Paul McNulty 

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The Honorable Patrick Leahy 

stated in testimony before the Senate Judiciary Committee in September of last year, is "a 

solution in search of a problem." 

The FFIA's Definition of "Covered Person" Is Extremely Broad 

The latest version of the Senate bill would extend a '10umalisl's" privilege to an 

unacceptably broad class of "covered person[sJ." As the Department has noted with respect to 

previous media shield bills, the privilege provided by this legislation goes far beyond the limits 

of any constitutional rights. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court 

held that requiring journalists to appear and testify before state or federal grand juries does not 

abridge the freedom of speech and press guaranteed by the First Amendment; and that a 

journalist's agreement to conceal criminal conduct of his news sources, or evidence thereof, does 

not give rise to any constitutional testimonial privilege with respect thereto. Under section 8(2) 

of the bill, a "Covered person" means "a person who is engaged in journalism and includes a 

supervisor, employer, parent, subsidiary, or affiliate of such person." Section 8(5) of the bill 

then broadly defines '~ournalism" to mean "the regular gathering, preparing, collecting, 

photographing, recording, writing, editing, reporting, or publishing of news or information that 

concerns local, national, or international events or other matters of public interest fOT 

dissemination to the public.") 

Under this expansive definition, anyone who publicly disseminates any news or 

information that hc has regularly written or gathered on any matter of public interest constitutes a 

"covered person." Nationality, affiliation, occupation, and profeSSion are irrelevant to this 

sweeping, worldwide privilege. 

For example, a terrorist operative who videotaped messages from Osama bin Laden for 

dissemination on the internet or on AI Jazeera would clearly be a "covered person" entitled to 

invoke the bill's privilege, because he would be engaged in recording news or information that 

concerns international events for dissemination to the public. Similarly, the media arms of 

designated terrorist organizations, such as AI-Manor (the media outlet for HezhoIlah) would 

clearly fall within the class of "covered persons" protected by this legislation. It is no 

exaggeration to say that this open-ended definition extends to many millions of persons in the 

United States and abroad-including those who openly wish to do us harm. 

While Section 7 of the FFIA would appear to provide an exception to the privilege for 

"information identifYing a source who provided information without a promise or agreement of 

confidentiality," the language of that section may be too vague and equivocal to prove effective. Section 

7. for example. makes no provision for an exception to the privilege in cases where the source has freed 

the journalist from an agreement to maintain the source's anonymity. Nor does Section 7 require that the 

agreement between the journalist and his source be explicit. In the absence of such a requirement, the 

exception provided by Section 7 is illusory. 

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The Honorable Patrick Leahy 

We emphasize that the definition of "covered person" contains no exception whatsoever 

for hostile foreign media or individuals that are either formally or informally associated with or 

employed by--or in some cases (e.g .• Al Manar) actually constitute-foreign terrorist 

organizations or states. Nor do the provisions of Section 5 of the bill. which purport to provide 

an exception for terrorist activity, effectively address this grave concero. Rather than firmly and 

clearly excluding such hostile entities from the bill's privilege altogether. section 5 merely 

provides a narrow and grudging exception from Section 2's privilege that the Government must 

bear the burden of proving the specific factual elements of "terrorism" or "significant harm to 

national security" by a preponderance of the evidence to the satisfaction of a federal judge. In 

addition, for the "Significant harm to national security" prong, Section 5 requires the 

Government to prevail on the entirely subjective and arbitrary question of whether the harm in 

question outweighs the "public interest in newsgatherlng." These provisions are entirely 

inadequate to address the profound national security risks posed by extending the bill's sweeping 

privilege to an unlimited and unknowable range ofterrorist-related media entities that constitute 

"covered person[sj" under the bill. 

Moreover, the bill's definition of "covered person" could also include social networking 

sites like MySpace.com, which are engaged in the business of "publishing information that 

concerns local, national, or international events or other matters of public interest for 

dissemination to the public." Providing such sites with a means to resist subpoenas from law 

enforcement will impede the investigation of serious crimes. For example. many violent street 

gangs have taken to using social networking websites such as MySpace to post information about 

their activities. Ifa site user were to post photographs showing gang members celebrating a 

major drug deal, the FFIA could make it difficult for police to obtain information about the 

completed crime. The user posting the pictures might qualify as a "covered person" by engaging 

in reporting related to local gangs. In addition. a plain reading of the statute suggests that the 

social networking site itself would be considered a "covered person" by publishing that 

reporting.4 Under either interpretation, law enforcement could face serious hurdles in pursuing 

Ihe lead, including the possibility that gang members will be alerted to the existence of an 

ongoing investigation. 

In an age where literally millions of persons engage in journalism via weblogs and other 

internet formats. providing a reasonable and workable definition of who is entitled 10 invoke a 

"reporter's privilege" is a very difficult, if not intractable problem. If the definition is broadly 

worded, as in the current legislation, it will inevitably sweep within its protection hostile foreign 

entities as well as others whose ability to invoke the privilege would frustrate law enforcement. 

If, however, the definition is more narrowly tailored, it would be open to almost-certain 

challenge on First Amendment grounds from individuals or entities denied the privilege. 

4 As discussed below, MySpace and sites or services like it (including those that "host" terrorist Or 

terrorist-supporting websites) WQuld also qualify as "communications service providers" under Section 

8(1) of the bill, thereby entitling them to the protections outlined in Section 6 of the bill. 
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The Honorable Patrick Leahy 

However the legislation ultimately defines a "covered person," the definition itself will almost 

certainly be the subject of litigation, further ensuring that important criminal investigations and 

prosecutions will be delayed. As we stated in our June 20, 2006 views letter, "We question 

whether a defmition that reconciles these conflicting considerations is possible as a practical 

matter." 

The FFIA Would Make It Virtually Inmossible To Prosecute "LCJlk" Cases And Difficult To 

Prosecute Other TypesQf Cases In Certain Circumstances, Including Terrorism Cases 

The broad scope of the proposed bill's definition of "covered person" is all the more 

disturbing in light of the rigorous test that the FFIA requires the government to meet before 

issuing a subpoena to a covered person. The bill would require the government to demonstrate 

"by a preponderance of the evidence" that it has (I) "exhausted all reasonable alternative sources 

(other than the covered person) ofthe testimony or document"; (2) that the information sought is 

"essential" to the investigation or prosecution; and (3) "that nondisclosure of the information 

would be contrary to the public interest."s The FFIA imposes an additional burden in cases 

involving the unauthorized disclosure of classified material. requiring the government to 

demonstrate--·again, "by a preponderance of the evidence"-that the individual who disclosed 

the classified information had "authorized access to such information" and that the "unauthorized 

disclosure has caused significant, clear, and articulable harm to the national security." 

It is important to note at the outset how dramatic and fundamental a change this 

legislation would work on existing law and procedure governing the issuance of a subpoena to a 

member of the news media. Under existing law-spccifically. Federal Rule of Criminal 

Procedure 17-the recipient of a subpoena can move to quash the subpoena, but in order to 

prevail must make a showing that the subpoena in question is "unreasonable and oppressive." 

Fed. R. Crim. P. 17(c)(2). That is to say, the burden is on the party seeking to quash the 

subpoena to demonstrate its unreasonableness or oppressiveness. The proposed bill, however, 

shifts the burden to the Government, while simultaneously increasing the amount of proof the 

Government must introduce before a subpoena can issue to a member of the media. This is a 

radical change: the allocation of the burden. as a legal matter, can have a tremendous effect on 

the outcome of a proceeding, for it requires the party carrying the burden not only to produce 

evidence. but to produce it in sufficient quantity and quality in order to carry the day. 

Section 2(a)(2)(A) requires that much of evidence the government uses to mcet its burden to 

compel disclosure in a criminal investigation OT prosecution must come from a source "other than a 

covered person." It is not clear what value this restriction has. Where law enforcement does succeed in 

meeting the requirements, disclosed documents may indicate that additional documents or infonnation in 

the possession of the same covered person would be critical to the investigation. Yet this section 

prohibits law enforcement from using documents from the first disclosure to seek further disclosures. 

Such a restriction makes no sense and is unnecessary. 

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The Honorable Patrick Leahy 

And the burden here is significant: Requiring the government to demonstrate by a 

preponderance of the evidence that there are reasonable grounds to believe that a crime has been 

committed, that the infonnation it seeks from a covered person is essential to the investigation or 

prosecution of that crime, and that nondiselosure of the infonnation would be contrary to the 

public interest will in essence require prosecutors to wage a "trial before the investigation" in 

order to obtain important evidence of serious criminal activity. 

The burden this bill would impose on Federal law enforcement in investigations or 

prosecutions of certain leaks of classified infonnation is especially troubling. In such cases, 

Section 2(a)(2)(A)(iii) of the proposed bill would apply, and that section saddles the Government 

with the obligation of going into a federal court and producing evidence of a quantity sufficient 

to prove "significant, clear, and articulable hann" to our nation's security before issuing a 

subpoena to a covered person that seeks protected infonnation. In so doing, the bill effectively 

ratchets up the ''preponderance of the evidence" standard articulated in Section 2(a). This 

creates a perverse result: The bill would actually require the government to make a more 

substantial showing in certain cases involving hann to the national security than is required in 

cases involving less serious crimes before issuing a subpoena to a member of the news media. 

The beightened requirements of Section 2(a)(2)(A)(iii) apply only in cases where the 

individual who leaked tbe classified infonnation had "authorized access to such infonnation." 

But this is impossible: How can the government or a court know that an individual had 

authorized access to the classified infonnation in question witbout knowing who it is that 

provided the journalist with the classified infonnation in the first place? 

The practical impact on leak investigations, morcover, could be enonnous. An example 

illustrates tbe point. Consider a journalist who publishes a detailed story about covert classified 

efforts to track the movements of international terrorists. The story also contends-wrongly, as 

it turns out--that the covert program bas monitored some individuals who were mistakenly 

identified as terrorists. The journalist attributes the information to a confidential source and 

describes tbe source as a government insider wbo intends to resign and relocate outside the 

United States, taking with bim documents detailing the program's operation in order to write a 

teU-all book that will reveal details about this and numerous other classified government 

programs. 

Despite their best efforts, the Department of Justice and the intelligence community are 

unable to identity the confidential source through independent means, and tbe journalist refuses 

to cooperate voluntarily with the Department. To prevent ftuther hann to national security, the 

Attorney General-acting in accordance with the Department's longstanding policy witb respect 

to media subpoenas-approves a written request for a narrowly-tailored subpoena tbat seeks only 

the identity oftbe journalist'S source. The journalist then challenges the subpoena in court. 

Under current law, to prevail on a motion to quash, the journalist would be required to 

prove the subpoena request was unreasonable and oppressive. Given the circumstances, it is 

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Wltikely the journalist could make such a showing and thus the Department would learn the 

leaker's identity and apprehend him in time to prevent additional hann to our national security. 

Under the proposed bill, however, the Department would first be required to provide affinnative 

proof that the leak "caused Significant, clear, and articulable hann" to our national security. 

While it is possible that such a showing could be made in this scenario, it is equally likely that a 

court could find that the hann was not yet realized or capable of specification. That finding 

would be enough to defeat the subpoena., even though the journalist would have done nothing 

other than file the motion to quash, thereby shifting the burden of proof to the Government. 

Moreover, even if a court credited the Department's shOwing ofhann, and even if the 

Govennnent demonstrated a significant hann to national security, the court nevertheless could 

find that public's interest in learning about the classified program outweighed the Government's 

interests-a finding that may be groWlded on entirely subjective value judgments that the 

Government would be unable to refute by objective evidence. That finding would defeat the 

subpoena. 

Even if we assume the Government could overcome the very high standard for disclosure 

contained in the FFIA, doing so in investigations or prosecutions of leaks of classified 

information will almost always also require the Government to produce still more extremely 

sensitive and even classified information in order to illustrate the "significant, clear, and 

articulable" hann to national security. It is thus likely that the legislation could encourage more 

leaks of classified information-by giving leakers a fonnidable shield behind which they can 

hide-while simultaneously discouraging crimina! investigations and prosecutions of such 

leaks-hy imposing such an unacceptably high evidentiary burden on the Government that it 

virtually requires the disclosure of additional sensitive information in order to pursue a leaker of 

classified information. 

The Department's opposition to this legislation is not based solely on the impact to 

national security investigations. It would be easy for criminals to use S. 2035 to frustrate 

legitimate law enforcement investigations. For example, a criminal wanting to distribute child 

pornography could post an "article" that on its face condemned child pornography but in fact 

contained thousands of images and movie clips that pictured adults sexually molesting children. 

Section 2 would require an extensive pre-trial hearing, including notifying the very tarfet of the 

investigation. Such a requirement would effectively prevent a successful investigation. 

Similarly, criminal groups run web sites that provide a forum for group members to buy 

and sell stolen credit card numbers and counterfeit identity documents. Suppose one of these 

criminal groups created a section on the web site that provides "news" for its members about 

press releases from law enforcement agencies and changes in criminal Jaws that affect its 

members. Would that mean that the criminal group is "reguJar[lyj ... publishing" news, and 

therefore a "covered person?" It appears Section 2 would create huge burdens on a law 

As discussed below, Section 6 might also prevent law enforcement from even subpoenaing the 

service provider to discover who posted the article. 

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enforcement investigation (such as proving to the court that the infonnation is "essential"), and 

Section 6 would require notification to the criminals that the government was seeking the 

identifying data. 

It may be argued that responsible media organizations would voluntarily turn over the 

infonnation in their possession to assist law enforcement in the identification, apprehension, and 

prosecution of culpable individuals. Even assuming that this would in fact be the case-and the 

Department is skeptical that it would be the case, for example, in cases involving leaks of 

classified national security information-relying on the goodwill of news organizations to turn 

over evidence in cases of serious criminal activity is a very risky proposition. Such a proposition 

requires us in tum to take it on faith that dangerous and, in some cases, violent criminals will 

only give evidence and information to "responsible" media outlets (who in turn will voluntarily 

provide the information to law enforcement), rather than give it to some less reputable entities or 

individuals who nevertheless would still qualify as "covered persons" under this legislation. To 

state such a proposition is to refute it. 

The FFIA Impermissibly Impairs the Sixth Amendment Rights of Defendants 

The Sixth Amendment provides in relevant part that "[iJn all criminal proceedings, the 

accused shall enjoy the right ... to be confronted with the witnesses against him ... [and] to have 

compulsory process for obtaining witnesses in his favor." As the Supreme Court has recognized, 

"[t}his right is a fundamental element of due process oflaw." Washington v. Texas, 388 U.S. 14, 

19 (1967). Although this right is not absolute, the Government bears a heavy burden when it 

seeks to limit it by statute. As the Second Circuit has explained, "(w]hile a defendant's right to 

call witnesses on his behalfis not absolute, a state's interest in restricting who may be called will 

be scrutinized closely. In this regard. maximum 'truth gathering,' rather than arbitrary 

limitation, is the favored goal." Ronson v. Commissioner of Corrections, 604 F.2d 176, 178 (2d 

Cir. 1979) (State court's refusal to allow testimony of psychiatrist to testify in support of 

prisoner's insanity defense violated Sixth Amendment right to compulsory process.) 

The FHA would violate the Sixth Amendment rights of criminal defendants by imposing 

impermissibly high standards that must be satisfied before such defendants can obtain testimony, 

information, and documents that are necessary or helpful to their defense. Under the FFIA, a 

criminal defendant can only obtain testimony, documents. or information for his defense if he 

can persuade a court that: (1) he has exhausted all reasonable alternative sources; (2) the 

testimony or document sought is "essential" to bis defense, rather than merely relevant and 

important; (3) "the nondisclosure of the information would be contrary to the public interest." 

See S. 2035 § 2(a). 

The Department believes that the imposition of such burdensome standards goes beyond 

what is permissible in restricting defendants' Sixth Amendment rights in this context. See, e.g .. 

United States v. Libby, 432 F. Supp. 2d 26, 47 (D.D.C., May 26, 2006) ("(T]his Court agrees 

with the defendant that 'it would be absurd to conclude that a news reporter, who deserves no 

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special treatment before a grand jury investigating a crime, may nonetheless invoke the First 

Amendment to stonewall a criminal defendant who has been indicted by that grand jury and 

seeks evidence to establish his innocence."'); United Slates v. Lindh, 210 F. Supp. 2d 780, 782 

(E.D. Va. 2002) (a defendant's "Sixth Amendment right to prepare and present a full defense to 

the charges against him is of such paramount importance that it may be outweighed by a First 

Amendment journalist privilege only where the journalist'S testimony is cumulative or otherwise 

not material.") Even supporters of reporters' privilege legislation have asserted that "[a] 

defendant's right to a fair trial and ability to defend himself against criminal charges should 

always outweigh the public interest in newsgathering; thus a balancing test is not appropriate in 

this context." ACLU Letter to Senate Judiciary Committee. Re: Reporters' Shield Legislation S. 

2831, The Free Flow ofInformation Act of2006 (June 21, 2006). 

The Bm Transfers Core Executive Functions to the Judiciary 

One ofthe most troubling aspects of the proposed legislation is the core structural change 

it would work on current law-enforcement practice-a change that will severely hamper our 

ability to investigate and prosecute serious crimes. Under the proposed legislation, before 

allowing the issuance of a subpoena to the news media in a criminal investigation or prosecution 

of an nnauthorized disclosure of classified information by a person with authorized access to 

such information, a court must determine "by a preponderance of the evidence" that (I) the 

information sought is "essential" to the prosecution; (2) the alleged unauthorized disclosure has 

caused "significant, clear, and articulable harm to the national security," S. 2035 at § 

2(aX2)(AXiii}; and (3) "nondisclosure of the information would be contrary to the public 

interest" S. 2035 at § 2(a)(3). Moreover, "[t}he content of any testimony or document that is 

compelled ... to the extent possible [must be} limited to the purpose of verifying published 

information or describing any surrounding circumstances relevant to the accuracy of such 

published information" ... [and is] narrowly tailored in subject matter and period of time so as 

to avoid compelling production of peripheral, nonessential, or speculative information." S. 2035 

at § 2(b). 

By its own terms, then, the FFIA cedes not one. but two core executive functions to the 

Judiciary. In the first instance, the legislation allows a court to determine what is and is not 

"essential" to an ongoing criminal investigation or prosecution. Second, the legislation would 

not only cede to a court the authority to delermine what does and does not constitute "significant, 

clear, and articulable harm to the national security," (a core Executive branch function), it also 

gives courts the authority to override the national security interest where the court deems that 

interest insufficiently compelling-even when harm to the national security has been established. 

In so doing, the proposed legislation would transfer authority to the Judiciary over law 

enforcement determinations reserved by the Constitution to the Executive branch. 

In the context of confidential investigations and Grand Jury proceedings, determinations 

regarding what information is "essential" and what constitutes harm to the national security arc 

best made by members of the Executive brancb--officials with access to the broad array of 

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information necessary to protect our national security. As Justice Stewart explained in his 

concurring opinion in the Pentagon Papers case, "it is the constitutional duty of the Executive--

as a matter of sovereign prerogative and not as a matter of law as the courts know law-through 

the promulgation and enforcement of Executive regulations, to protect the confidentiality 

necessary to carry out its responsibilities in the fields of international relations and national 

defense." New York Times Co. v. United States, 403 U.S. 713, 729-30 (1971) (Stewart, 1., 

concurring). 

The Constitution vests the function of evaluating the Government's national security 

interest in the Executive branch fOT good reason; the Executive is better situated and better 

equipped than the Judiciary to make determinations regarding the Nation's security. Judge 

Wilkinson outlined the reasons why this is the case in his concurring opinion in United States v. 

Monson. 844 F.2d !O57 (4th Cir. 1988): 

Evaluation of the government's [national security) interest ... would require the 

Judiciary to draw conclusions about the operation of the most sophisticated 

electronic systems and the potential effects of their disclosure. An intelligent 

inquiry of this sort would require access to the most sensitive technical 

information, and background knowledge of the range of intelligence operations 

that cannot easily be presented in the single 'case or controversy' to which courts 

are confined. Even with sufficient information, courts obviously lack the 

expertise needed for its evaluation. Judges can understand the operation of a 

subpoena more readily than that of a satellite. In short, questions of national 

security and foreign affairs are of a kind for which the Judiciary has neither 

aptitude, facilities nor responsibility and which has long been held to belong in 

the domain of political power not subject to judicial intrusion or inquiry. 

[d. at 1082-83 (Wilkinson, J., concurring). 

Thus, in our view, the FFIA impermissibly divests the Executive branch of its 

constitutional obligation to ascertain threats to the national security. The legislation would also 

transfer these duties and obligations to the Judiciary. which (as demonstrated above) is ilIequipped to make these determinations. This unconstitutional transfer of power will have serious 

implications in national security cases. For example, if the Department decided. in an exercise of 

its prosecutorial discretion, to issue a Grand Jury subpoena to a member of the media in 

connection with an investigation into the unauthorized disclosure of classified information to the 

media. a member of the Judiciary could effectively shut down the Grand Jury's investigation 

simply by concluding that upholding the subpoena would not be in the "public interest." See S. 

2035 at § 2(a)(3). The Department cannot support such an unconstitutional transfer of its 

Executive branch powers to the Judiciary. 

The FFIA Improperly Limits tbe Power of Judges and Will [mpair the Judicial Process 

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While this bill would impermissibly augment the role played by the judiciary in the 

criminal investigative prooess-especially in cases involving national security-it 

simultaneously threatens to seriously erode the power of Federal judges to control the 

proceedings they oversee and enforce their own orders. By its terms, the bill states that "a 

Federal entity may not compel a covered person to provide testimony or produce any document 

related to information possessed by such covered person as part of engaging in journalism." S. 

2035 § 2(a). The definition for a "Federal entity" includes, inter alia, "an entity or 'employee of 

the judicial or executive branch." S. 2035 § 8(4). 

Thus, under this definitional scheme, a Federal District Court Judge would have to apply 

the FFIA before determining whether he or she could enforce a Protective Order, "gag" order. or 

the Grand Jury secrecy requirements set out in Federal Rule of Criminal Procedure 6(e). Under 

existing law, when a Court learns that SCIlliitive documentary evidence or Grand Jury testimony 

have been provided to a reporter in violation of either a Court's Protective Order or Rule 6(e). 

the Court has the authority to compel witnesses-including reporters-to provide documents and 

testimony in order to determine who violated the Court's Order. Under the terms of the FFlA, 

however, if the Judge wished a reporter to provide such documents or testimony in an effort to 

identify a source, the Court would be required to satisfy the requirements of the FFIA. Under 

most scenarios, a violation of a Protective Order or the Grand Jury secrecy rules would not 

satisfy the FFIA's requirements that disclosure of the source: (I) be "essential" to the resolution 

of the matter; (2) be "reasonably necessary to stop. prevent. or mitigate a specific case of death, 

kidnapping, or substantial bodily harm"; (3) "assist in preventing a specific case of terrorism 

against the United States," or (4) "assist in preventing a specific case of ... significant harm to 

national security that would outweigh the public interest in newsgathering and maintaining a free 

flow of information to citizens." 

In cases where such a showing cannot be made, the court will be unable to require the 

covered person to divulge the identity of the source who violated the Court's order or rules 

governing Grand Jury secrecy. Accordingly. the court will be stymied in its efforts to enforce its 

own orders as well as the rules regarding grand jury secrecy. By so rcstricting the authority of 

the judiciary, the FFIA runs directly counter to clearly established Supreme Court precedent. See 

Young v. U.s. ex ref. Vuitton et Fils S.A., 481 U.S. 787, 796 (1987) ("The ability to punish 

disobedience to judicial oroers is regarded as essential to ensuring that the Judiciary has a means 

to vindicate its own authority without complete dependence on other Branches.") 

The Limits on Obtaining infonnation From Communjcations Service Providers Are Poorly 

Defined and Do Not Protect Sensitive Investigations 

Section 6 provides that efforts to compel disclosure of information for communications 

service providers are covered by the same limitations as if the information were sought from a 

covered person, if the information "relates to a business transaction between a communications 

service provider and a covered person." The bill does not define what a "business transaction" is 

in this context. and such a broad term could be interpreted many different ways. For example, it 

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could be interpreted to cover situations in which a content provider, such as a website, purchases 

information from a purported journalist. If that is the intent, the website would seem to be 

covered under the definition of "covered person," making this section unnecessary. 

Another interpretation could be that "business transaction" refers to any situation in 

which a user pays for or otherwise obtains an account, such as purchasing a domain name or 

creating a website. In that case, the b1atute would cover any customer records for any covered 

person. MySpace and sites like it would qualifY as "communications service providers" under 

Section 8(1) of the bill. These types of websites would therefore not be subject to compelled 

disclosure of information about "business transactions" between the sites and the individual 

"covered persons" unless law enforcement could overcome the significant legal barriers this bill 

would erect. Thus, the bill would hamper law enforcement access to the records ofthousands of 

websites and other providers and would require notification to targets with very limited 

exceptions. This would be a major and unnecessary change from the current state ofthe law and 

would inhibit any number of investigations that involve a wide variety of crimes, such as threats, 

intellectual property violations. and the distribution of child pornography. 

In addition, the delayed notice requirements of Section 6 are too narrow in that they do 

not apply outside of criminal investigations. Rather than amending the section to apply to other 

situations, such as national security emergencies, the statute could simply use the standards for 

delayed notification of similar requests made to communications service providers pursuant to 

the Electronic Communications Privacy Act, 18 U.S.C. § 2705 . 

.. * .. 

Some proponents of the FFIA have suggested that the bill is little more than a 

codification of the Department's own guidelines. That view is without foundation. The 

Department's guidelines preserve tbe constitutional prerogatives of the Executive branch with 

respect to key decisions regarding, for example, the kind of evidence that is presented in Grand 

Jury investigations and what constitutes harm to the national security. The proposed legislation. 

by contrast, would shift ultimate authority over these and other quintessentially prosecutorial 

decisions to the Judiciary. Furthermore, the proposed legislation would replace the inherent 

flexibility oftbe Department's guidelines, which can be adapted as circumstances require, with a 

framework that is at once more rigid (by virtue of being codified by statute) and less predictable 

(by virtue of being subject to the interpretations of many different judges, as opposed to a single 

Department with a clear track record ofcarefulJy balancing the competing interests). 

Finally. proponents of the FFIA have asserted that one of the bill's primary purposes is to 

eliminate divergent application of a reporters' privilege by providing a uniform Federal standard. 

This contention is without merit Federal legislation would merely provide a non-constitutional 

statutory standard, or floor. that must be satisfied for the Government, a criminal defendant. or 

parties in civil litigation to obtain testimony or evidence that is subject to an alleged journalist'S 

privilege in Federal court. The bill does 1I0t eliminate or prevent the differing constitutiollal 

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interpretations of the scope and nature of a journalist's privilege in different circuits, particularly 

in civil cases, which may impose limitations above and beyond the bill's proposed statutory 

minimum standards. Thus, rather than simplifying the legal standards that must be overcome to 

obtain information Of evidence subjected to a claim of reporter's privilege, the FFlA would 

compound and complicate them by imposing a complex. subjective statutory standard on top of 

the various constitutional interpretations that have been promulgated in various circuits. 

Thank you for the opportunity to present our views. The Office of Management and 

Budget has advised us that from the perspective of the Administration'S program. there is no 

objection to submission of this letter. 

cc: The Honorable Arlen Specter 

Ranking Member 

Sincerely, 

it~~lL' Principal Deputy Assistant Attorney General 

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Appendix II 
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The Honorable Harry Reid 

Majority Leader 

United States Senate 

Washington. D.C. 20515 

The Honorable Mitch McConoell 

Minority Leader 

United States Senate 

Washington, D.C. 20515 

Dear Senator Reid and Senator McConnell: 

April 2, 2008 

We write to express our serious concerns about S. 2035, the "Free Flow of Information 

Act," a bill whicb we - and our colleagues in the Intelligence Community and in Federal law 

enforcement - believe is both unwise and unnecessary: unwise because the statutory privilege 

created by this legislation would work: a significant change in existing Federal law with 

potentially dramatic consequences for our ability to protect the national security and investigate 

other crimes; and unnecessary because all evidence indicates that the free flow of information 

bas continued unabated in the absence of a Federal reporter's privilege. We acknowledge the 

important role that the media plays in our society. The scope of this bill, however. goes far 

beyond its stated purpose and could severely frustrate the Government's ability to investigate 

and prosecute those who harm national security. As a result. if this legislation were presented to 

the President in irs current form, his senior advisors would recommend that he veto the hill. 

Some of the most problematic provisions include: 

• The circumstances where the bill would permit the Government to obtain testimony. 

documents. and other infonnation from joumalists related to national security 

investigations are far too restrictive. In the vast majority of leak cases. for example. the 

extraordinary burden placed on the Government could be met, if at all. only by revealing 

even more sensitive and classified information. 

• Inexplicably, the purported national security exception could be read as not covering 

leaks of classified information. Moreover, the purported exception only applies 

prospectively to prevent acts of terrorism and significant harm to national security. It 

does not apply to investigations of acts of terrorism and significant harm to national 

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• The bill cedes to judges the authority to determine what does and does not constitute 

"significant and articulable harm to the national security." It also gives courts the 

authority to override the national security interest where the court deems that interest 

insufficiently compelling-even when harm to national security has heen established. 

• The bill, apparently inadvertently, implicates critical national security authorities far 

beyond subpoenas-including authorities under the Foreign Intelligence Surveillance Act 

-potentially depriving the Government of access to vital intelligence information 

necessary to protect the Nation. 

• One need not even be a professional journalist in order to derive protections from this 

bill. It effectively provides a safe haven for foreign spies and terrorists who engage in 

some of the trappings of journalism but are not known to be part of designated terrorist 

organizations or known to be agents of a foreign power - no matter how closely linked 

they may be to terrorist or other criminal activity. 

In addition to these serious flaws, discussed in detail beloW, the burdens imposed by this 

legislation would have consequences beyond the national security context. and could hamper the 

ability of Federal law enforcement to investigate and prosecute serious crimes like gang violence 

and child exploitation.' We also note that although some amendments to the bill were made in 

Committee to address our concerns, the bill reported out of the Senate Judiciary Committee on 

October 22, 2007 remains fatally flawed. 

.. .. .. 

From a national security perspective, the most problematic provisions are as follows: 

Section li Would Encourage More Leaks ofQpitW Jnformation. 

Section 2 is the core of this legislation, setting forth the "Conditions for Compelled 

Disclosure from Covered Persons." It establishes a multipart test the Government must meet -

to the satisfaction of the given Federaljudge before whom ajoumalist has chosen to bring his or 

ber claim - before it can compel testimony or evidence from a covered person. 

SpecifieaIly. section 2 would require the Government to demonstrate "by a 

preponderance of the evidence" (I) that there are reasonable grounds to believe a crime has 

occurred: (2) that the Government has "exhausted all reasonable alternative sources (other than a 

covered person) of the testimony or document" it seeks; (3) that the information the Government 

seeks is "essential" to the investigation or prosecution; and (4) that nondisclosure of the 

information would be contrary to "the public interest," taking into account both the need for 

disclosure and "the public interest in gathering news and maintaining the free flow of 

'We refer you to earlier views letters from the Department of Justice where these and 

other non-national security criminal enforcement concerns are addressed. 

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information." The Government must carry this burden in a proceeding before a Federal judge, 

baving provided notice and an opportunity to be heard to the "covered person" from wbom it 

seeks the information in question. This balancing test, to be applied by different Federal judges 

across the country, is a recipe for confusion and inconsistency. 

The implications of this provision for Federal law enforcement are dramatic-and 

nowhere are they more dramatic than in cases involving leaks of classified information. For 

example, section 2 sets forth a heightened evidentiary burden in leak cases, requiring the 

Government, in addition to satisfying the multifactor test set forth above, to also establish that 

(1) the leaked information was "properly classified"; (2) the individual who leaked the 

information had "authorized access to such information"; and (3) the leak in question has caused 

or will cause "significant and articulable harm to the national security." 

The decision to impose a heightened evidentiary standard makes it difficult to avoid 

drawing an inference that the bill's supporters believe that harming national security is somehow 

more acceptable or tolerable when done via a leak than when it is done in some other way. We 

can assure you that this is emphatically not the case - and by imposing additional burdens on 

investigators and prosecutors charged with identifying and bringing to justice those who 

improperly disclose classified information, this bill will ensure that we will have more such 

leaks. and fewer prosecutions of those who do so. 

Meanwhile. taken individually, each part of this three-prong test poses serious and 

potentially fatal problems for Government agents and prosecutors investigating leaks of 

classified information. Taken together. they could make it virtually impossible for the 

Government to investigate such leaks. First, by requiring some showing that the leaked 

information was "properly classified," the bill raises the troubling prospect of every leak 

investigation becoming a mini-trial over the propriety of the Goveroment' s classification 

decision. Second. the requirement that there be a showing that the leak came from "a person 

with authorized access to such information" leaves prosecutors in an inescapable bind: How can 

the Government or the coun ever demonstrate that an individual whose identity is unknown 

nonetheless had "authorized access" to classified information? Third, in order 10 demonstrate 

that the leak in question "has caused or will cause significant and articulable harm to national 

security." the Government will often be required to introduce stiU more sensitive and classified 

information. potentially compounding the harm or the initial leak. 

The cumulative effect of this evidentiary burden would cripplc the Government's ability 

to identify and prosecute leakers of classified information, and in the process would encourage 

more leaks that aid our enemies and threaten national security. Indeed.. the bill essentially serves 

as a road map to leaking classified information. In our estimation, this alone renders this bill 

unacceptable, and we are not alone in this belief. In a letter to Senate Leadership dated January 

23. 2008, the Intelligence Community expressed agreement that this bill. if enacted. could 

seriously undermine our ability to aggreSSively investigate and, Where appropriate, prosecute 

leaks of classified information that threaten our national security. 

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Finally. although the discussion about this bill has focused on grand jury subpoenas to 

reporters. the bill is in no way limited to subpoenas. Instead. by its terms, the bill implicates core 

national security authorities, including those set forth in the Foreign Intelligence Surveillance 

Act ("FISA''). While the bill creates a mechanism, discussed below, for the Government to go to 

court to obtain a subpoena for source information from a journalist protected by the privilege. it 

includes no such mechanism for the Government to obtain permission to use core investigative 

tools when the privilege is implicated. This gap would potentially undermine critical tools in the 

War on Terror, such as FISA and pen register and trap and trace authorities. and in the process 

deprive the Government of vital information necessary to protect national security. 

Sedkm S; Wogld lphlhit Our AbiIltv to Investlpte and Prosecute Harm to National 

Security. 

Supporters of the bill have taken pains to emphasize that section 5 of the bill provides an 

exception for cases involving the national security, and that the exception is sufficient to address 

the national security concerns we and others have expressed about the bill. We respectfully 

disagree. 

On its face. section 5 of the bill provides an exemption from the onerous evidentiary 

burden set forth in section 2 of the bill in cases where the Government seeks information that a 

court determines (again by a preponderance of the evidence) ''would assist in preventing" either 

(I) an act of terrorism or (2) "other significant and articulable harm to national security that 

would outweigh the public interest in newsgatbering and maintaining a free flow of information 

to citizens." 

As an initial matter, we find it dismaying that the bill could be read to exclude leaks of 

classified information - information whose disclosure by deJinition is capable of causing harm 

to the national security - from the purported national security exception, and instead arguably 

imposes an even stronger version of section 2' s evidentiary burden on prosecutors seeking 

information about such leaks. This uncertainty will lead to time-consuming litigation over which 

standard to apply in situations where prospective harm to national security could hang in the 

balance. 

Putting to one side this apparent exclusion of leaks from the bill's national security 

exception, section 5 of the bill is deficient for a number of other reasons. First, the national 

security exception only applies prospectively, not to cases involving terrorist acts and other harm 

to the national security that have already occurred. This bill is geared toward September 10, 

2001, but not to September 12, 2001. We strongly disagree with this approach. 

Second, rather than a presumption in favor of allowing prosecutors to obtain information 

that is necessary to prevent "significant and articulable harm to national security," the national 

security "exception" would still allow a given Federal district court judge, in his or her 

discretion, to shield disclosure based on the court's own view of what constitutes harm to the 

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national security, on the one hand, and the public's interest in "newsgathering and maintaining a 

free flow of infonnation," on the other. These amorphous factors will defy consistent or 

coherent balancing. Indeed, we would submit that the open-ended nature of the biU's balancing 

tests virtually guarantees that there will be as many different interpretations of its tenn.'1 as there 

are Federal judges - with serious consequences not just for law enforcement but for journalists 

and the public at large. 

Moreover. in so doing, section 5's purported exception is indicative of a broader problem 

that infects the entire bill: it transfers to the courts such core determinations as when 

investigative subpoenas are necessary and what constitutes harm to the national security. Not 

only is this shift made, but in many cases, the Government will need to make its showing at an 

early stage of investigation. This is precisely backwards. In the context of confidential 

investigations and Orand Jury proceedings, determinations regarding what infonnation is 

"essential" and what constitutes harm to the national security are best made by members of the 

Executive branch - officials with access to the broad array of information necessary to protect 

our national security. As Justice Stewart explained in his concurring opinion in the Pentagon 

Papers case, "[Ilt is the constitutional duty of the Executive - as a matter of sovereign 

prerogative and not as a matter of law as the courts know law - through the promulgation of 

Executive regulations, to protect the confidentiality necessary to carry out its responsibilities in 

the fields of international relations and national defense." New fork Times Co. v. United States. 

403 U.S. 713, 729-30 (1971). Federal judges simply lack the training and expertise necessary to 

weigh the sort of national security considerations included in this bill. This is by no means a 

deprecation of the former colleagues of one of the undersigned, but mther a recognition - and 

one shared by many judges - that the Executive branch is better equipped to make these 

sensitive determinations. 

Third, even assuming that bill's open-ended factors can be balanced, there remains the 

issue of what evidence a court will require in order to effectively conduct the balancing test. For 

its part. the Government presumably will be required to provide eVidence regarding the 

impending terrorist attack or harm to the national security, and thus would once again be in the 

position of having to choose between revealing sensitive information in open court, or 

abandoning efforts to obtain critical information that could prevent terrorist attacks and other 

significant threats to national security. Even if the Government makes that choice, and decides 

to provide the information necessary to conduct the balancing test, what evidence will tbe court 

place into the balance on the side of the journalist? Will journalists provide the court with the 

information sought by prosecutors and, if not, how will the court be able to effectively weigh the 

competing sides of the balancing testf 

2SUpporters of the legislation often characterize the bill as a compromise between the 

interests of law enforcement on the one hand and the interests of the news media on the other. It 

is clear, on the face of the bill. what compromises law enforcement is being asked to make: The 

bill would force prosecutors to cede control over core determinations - including determinations 

regarding what evidence to seek and when and how to go about seeking it - to the court. Less 

clear. however, are the compromises the legislation would require fromjoumalists. Indeed. the 

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Finally, the vague and subjective standards in section 5 and elsewhere in the bill are an 

invitation to litigation over whether certain infonnation sought by the Govenunent falls within 

section 5 (or one of the other exceptions in the bill) or section 2, and over how to interpret and 

apply the particular terms of the bill. And yet despite the inevitability of litigation over its tenns 

- and the likelihood that such litigation could involve cases of the utmost importance and 

urgency - the bill contains no provision for expedited judicial review.; The resulting delays 

could have dire consequences when information is needed to address an immediate threat. 

Section 6: Undermines NaUonal Security Investtpdons 

Section 6 also bas the capacity to wreak havoc on national security and other 

investigations. This section provides that in the event certain potentially broad categories of 

information are requested from a communications service provider (bro8dly defined), notice and 

an opportunity to be beard must be provided to a covered person. This provision could be 

inadvertently implicated in a wide range of investigations. For instance, the section is 

fundamentally incompatible with the Foreign Intelligence Surveillance Act (FISA). The 

requirements contained in section 6 would make it difficult.. if not impossible. to obtain a FISA 

Court order to conduct electronic surveillance on a foreign power or agent of a foreign power. 

Moreover, although it does allow for notice to be delayed in certain circumstances, the exception 

does not extend to national security investigations. and the Government may not obtain the 

information while notice is delayed. It is therefore a realistic probability that certain national 

security investigations would be unnecessarily derailed by this provision. 

Section 8: OyerIy Broad Detlnttfog of 'Journalism' can Include Those Unked to 

Terrorists and Crtm!n+. 

This section, which sets forth the definitions of the terms used in the bill, makes clear that 

the protections set forth in this legislation extend to an astonishingly broad class of "covered 

persons." Section S defines "covered person" to include not just "a person who is engaged in 

journalism"but also that person's "supervisor, employer, parent company, subsidiary, or 

affiliate." 

legislation fails to even provide any assurance that, should the Government carry its burden 

under this legislation and convince a coon to order disclosure of the information, the journalist 

will not simply defy the court and refuse to tum over the information - which is precisely what 

happens under current law when a journalist refuses to comply with a validly issued grand jury 

subpoena and, in some cases, a coon order. 

3 We also note that the bill.provides absolutely no mechanism by which a court could receive and 

consider classified and other sensitive national security information ex parte and under seal, so as 

10 ensure that such information is not disclosed, resulting in atlditional harm to the national 

secority. 

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The bill funber defines "journalism" as "the regular gathering. preparing, collecting, 

photographing, recoromg. writing. editing, reporting, or publishing of news or information that 

concerns local, national, or international events or other matters of public interest for 

dissemination to the public." There is no requirement that an individual be engaged in 

journalism as a livelihood in order to avail himself of the reporter's privilege this bill would 

create. 

The bill purports to address law enforcement concerns by attempting to carve out agents 

of foreign powers and designated terrorist organizations from the definition of "covered person." 

Many terrorist media, however, are neither "designated terrorist organizations" nor covered 

entities under the bi1l. Thus., alI individuals and entities who "gather" or "publish" information 

about "matters of public interest" but who are not technically designated terrorist organizations. 

foreign powers, or agents of a foreign power, will be entitled to the bill's protections - no 

matter how closely linked they may be to terrorists or other criminals. 

* 

In closing. we reiterate our belief that this bill is both unnecessary and unwise. It is 

unwise for the reasons that we have laid out above - and for the reasons that we and our 

colleagues in the intelligence and law enforcement communities have set forth in numerous 

views letters regarding this and earlier versions of the reporter's shield legislation. 

It is unnecessary because. in the more than thirty-five years since the Supreme Court held 

in Bramburg v. Hayes. 408 U.S. 665 (1972). that there is no First Amendment reporter's 

privilege to avoid a grand jury subpoena issued in good faith, there has been a dramatic increase 

in the flow of information available to the public on every conceivable topic through an evergrowing number of outlets. More than three decades. of experience to the contrary 

notwithstanding. supporters of a statUtory reporter's privilege are now making essentially the 

same arguments the litigants in Brtmzburg made. Now. as then, we are told that, without a 

reporter's privilege.joumalist.~' sources will dry up, important news will go unreported. and the 

country will suffer as a result. Indeed, supporters of this legislation often punctuate this 

cautionary tale about the necessity of a Federal reporter's privilege by emphasizing the critical 

role played by confidential sources in infonning the public about a long line of historic events -

from Watergate and the Pentagon Papers to Enron and Abu Ghraib. There can be no doubt that 

confidential sources did in fact playa key role in bringing those stories (and countless others) to 

light. But there likewise can be no doubt that those confidential sources carne forward even 

though there was no Federal media shield law in place to provide them with the protection that, 

if this bill's supporters are to be believed, is essential to ensuring that such stories continue to be 

reported. 

For the reasons set forth above, and others expressed by the Directors of National 

Intelligence, Central Intelligence Agency, Defense Intelligence Agency, Federal Bureau of 

Investigation, and others. we strongly urge you to reject the Free Flow of Infonnation Act in its 

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cum:IIt 1onn. '1be Office ~t and Budget has advised us that, from the perspective 

Df'the Administration's program, there is no objection to submission of this report. 

L~~,d'.6/ MicbaelB. ~ .6 

Attorney General 

cc: The Honorable Patrick Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

The Honorable Arlen Specter 

Ranking Member 

Committee on the Judiciary 

United States Senate 

The Honorable John D. Rockefeller IV 

Chairman 

Select Committee on Intelligence 

United States Senate 

The Honorable Christopher S. Bond 

Vice Chaiman 

Select Committee on Intelligence 

United States Senate 

J. M. McConnell 

Director of National IntelJigence 

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Appendix III 

Insert graphic folio 91 here 85431.027smartinez on DSK6TPTVN1PROD with REPORTS

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.... to ..... w*' bow we..., ........... 1IIICb. n.e iDIIa'Doesc:ame It. price to our 

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Par theIe teIIIOaIlDd for Ibe _1I:t cat ill IIIe aaadIed Sqlfto_ 26, 'JJXf11etw 

&om DOl, we .. die eoaan-to ~ Ibis bilL It you hI¥e -.y ICIditionU que:adooa OIl this 

mtdfI:r. pIeIIIe CIlIdaIC( me or .. Din:Ictar of~ AmIia. KadIIcen T\1mI::r. who caD be 

ftIIdMId OIl (202) 201-1698. 

2 
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Appendix IV 
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August , 2008 

contril:mliom; of II free and vibrant press 

has been compromised at times significant Wl'~mHGJrra:u ,";Qf'IMnrC'~ 
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Some of the problematic provisions include: 

• The circumstances in which the bill would pennit the Government to obtain information 

related to national security from a covered person, including leaks of classified 

information, remain fur too restrictive. 

• The legislation's exception to prevent "significant and articulable" harm to national 

security still applies only prospectively; it does not apply to investigations once the harm 

has occurred. Even in cases involving prospective harm, it could require the Government 

to disclose further sensitive information with no assurance that all or any classified 

information would remain protected. 

• The legislation transfers key national security and prosecutorial decision-making authority 

- including decisions about what does and does not constitute harm to the national 

security - from the executive branch to the judiciary, and it gives judges virtually limitless 

discretion to make $UCh determinations by imposing standardless and highly subjective 

balancing tests that could be used to override national security interests. 

• There is no mechanism, such as a requirement that the covered person provide the relevant 

information to the court as a condition to claiming the statutory privilege, to ensure that 

the Government will be able to obtain the information it seeks when it meets its 

evidentiary burden. 

• The proposed "Rule of Construction" - which purports to limit any construction of the Act 

that would affect the Foreign Intelligence Surveillance Act or the Federal laws or rules 

relating to grand jury secrecy - is insufficient to preserve the range of authorities on which 

the Government relies to conduct national security investigations. 

• The legislation would extend its protection to leaks that are publicized by individuals who 

are not even "journalists" as that concept is normally understood. 

Many of these same concerns were addressed in detail in our previous letter, which wc 

incorporate by reference in all respects that remain applicable to the revised legislation • 

• • • 

From a national security perspective, the most problematic provisions are as follows: 

Sestion 5 Would Iphibit The Goyernment's Ability To Investigate Offenses agaiost the 

Natfoaal Seeurity. Including Leaks of Classified Iaformation. and To Pros!l£!ltc the 

Pemetraton of Those Oft'en5es 

In our previous letter, we objected that that bill appeared to exclude leaks of classified 

information from the national security exception and inexplicably singled out the leaking of 

classified information for greater protection from prosecution than other criminal cases. This bill 

has sought to address those concerns by making clear that inve.~igations ofleaks of classified 

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information are governed by the Section 5 national security exception rather than by the general 

provisionll of Section 2. Despite this clarification. however, persistent problems with Section 5, 

and some new ones, continue to pose \llIlICCCPUlble obstacles to national security and leak 

investigations. 

Revised Section 5 creates two distinct cases in which the Government can seek to obtain 

source infonnation: subsection (A) when the infonnation would assist in stopping or preventing 

significant and articulable harm to TlfItional security, and subsection (B) when the infonnation 

relates to a leak of classified information that has caused or will cause significant and articulable 

harm to TlfItional security. We have substantial concerns with both subsections. By its terms. 

subsecrlQll (A) extends only to potential or future harms to TlfItional security-harms that still can 

be "stopp[ed)" or "prevent[ed)." Thus, this national security exception expressly would nor apply 

in cases where the Government is investigating serious harms (other than leaks of classified 

information) that have already occurred. including acts of sabotage and outright attacks on the 

United States. In such cases, the Government could seek to compel disclosure only as authorized 

under the more onerous provisions of Section 2. 

Subsection (B) is also problematic. In order to obtain source information as part ofa leak 

investigation. the Govemment must establish that the leaked information was "properly 

classified" and that the leak has caused or will cause "significant and articulable harm to the 

national security." As noted in our previous letter, these provisions invite litigants and courts to 

second-guess the classification decision without the benefit of either experience or expertise into say nothingoflegal responsibility for-matters of national security. More troubling is that 

such second-guessing will involve the application of a novel standard that does not even track the 

standards that are used in national security classifications. Specifically, to persuade a judge to 

compel disclosure under subsection (B), the Government will have to show that the leak has 

caused or will cause "significant and articulable harm" to the TlfItional security. This standard has 

no analogue in the intelligence cornmunity. Pursuant to Executive Order 12958, as amended, the 

Govemment classifies information at three basic levels: "Confidential," "Secret," and "Top 

Secret." By definition. those terms apply, respectively, to information the unauthorized 

disclosure of which reasonably could be expected to cause "damage" (Confidential), "serious 

damage" (Secret), and "exceptionally. grave damage" (Top Secret) to the national security. Thu.~, 

a leak of properly classified by definition constitutes harm to the national security. Particularly 

with respect to "Confidential" information. however. the harm is arguably less severe than the 

Government would be required to demonstrate under Section 5. The bill could thus expose large 

amounts of properly classified information to unauthorized disclosure while effectively blocking 

any investigation or prosecution of those who leak such information. 

Moreover, setting to One side the novel and onerous requirement for a demonstration of 

"significant and articulable harm," the bill would still require the Government to reprise for the 

court and other litigants the decisions relating to how and why the leaking of information has 

harmed or will harm national security. This is an exercise that will almost certainly entail the 

revelation of still more sensitive and classified information. 

Even assuming the Government could meet its burden of demonstrating the requisite 

harm, Section 5 still includes II balancing test giving a judge complete discretion to block 

disclosure. While the balancing test is now arguably less biased in favor of protecting the 

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disclosure of classified information - to the extent that a judge need only "take into account" the 

competing interests - the test itselfbas been slightly, though significantly, changed. In previous 

versions of this legislation, the "free flow of information" component of the balaooing 

test represented the public interest in protecting source identity as a means of encouraging future 

sources to come forward and provide information to the press. Under the revised test, however, 

the national security harm is now weighed against the "public interest in gathering and 

disseminating the lliformatlon or news conveyed" (emphasis added). Thus the balancing test for a 

judge in a leak case would rest on the relative import he or she placed on the substaooe of the 

published leak, and whether its disclosure, though unlawful, outweighed a demonstrated harm to 

national security. Gone is any pretense of advaooing the ideal offuture information flow; this 

amended exception would effectively give judges authority to immuniz.e leakers as a perverse 

reward for divulging classified information that is, in the judge's personal estimation, 

sufficiently enlightening. 

While Section S has been clarified to cover leaks of classified information, and modified 

in other respects, it still retains many of the fundamental defects that we addressed in our previous 

letter, such as the requirements for establishing "proper classification," proving "significant and 

articulable harm," and balaooing the "public interest" in the publication of the leaked information. 

Moreover, as outlined above, some of the revisions raise new questions and concerns. The net 

effect does not change our previous assessment that Section 5 threatens to undermine the 

Government's ability to prevent and investigate threats to national security, especially leaks of 

classified information. Section 5 is therefore unacceptable. 

Section 6 Still Threatens Th Weaken National Seeurity Inve!!tigatiye Tools 

While revised Section 6 has been improved, it still poses problems. In perticular, Section 

6 requires that the Government first make an evidentiary showing in order to use certain 

preliminary investigative tools, such as pen-register trap-and-trace and Title III authorities. But 

precisely because these tools are often used to gather evidence in the preliminary stages of an 

investigation, the Government may lack the requisite information to meet the posed evidentiary 

standard at the time when the Government would normally use them. More troubling, this section 

gives the court discretion not to compel disclosure even if the Government meets its evidentiary 

burden. 

Sestion 9 Rules of Construction Are Insuftidet To Mitigate the Adverse Impact of the Bill 

in Critical Area! 

On the surface" Section 9 appears to be an attempt to address concerns expressed by us 

and others with the bill's potential collateral impact in a number of important areas, including 

FlSA. It provides that this legislation will not "create new obligations, or affect or modify the 

authorities or obligations of a Federal entity with respect to the acquisition or dissemination of 

information pursnant to the Foreign Intelligence Surveillance Act of 1978." While we welcome 

the attempt to improve the grave defects of this bill with respect to safeguarding national security, 

this provision does not go nearly far enough. 

First, the provision leaves out key, non-FISA tools that are essential to the protection of 

the national security .. The wire-tapping provisions ofTitle III, pen-register trap-and-trace 

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authority. and national security letters - all of these tools are as important, and in some cases 

more important, to the Government's ability to investigate those who have caused or would cause 

harm to our national security (to say nothing of other serious crimes unrelated to the national 

security). Yet this bill remains silent as to them, leaving one with the distinct impression that this 

legislation can and will- and indeed is intended to - interfere with the Government's use of those 

tools in cases where it seeks information provided to ajournalist by a confidential source. Prior 

to September II, 200 I, it was precisely this type of ambiguity between application of tools 

available to intelligence and law enforcement that created "the wall" - a series of barriers to 

information sharing that had serious consequences for our counterterrorism efforts. 

Second, it is unclear that the additionallangnage will in fact protect the Government's 

ability to use FISA effectively. The goal, we are told, is to ensure that the Government can 

continue to gather and disseminate intelligence and surveillance information pursuant to a FISA 

court order. Why not then simply say, "The provisions of this Act shall not apply to the use of the 

authorities provided for in the Foreign Intelligence Surveillance Act or to any information 

acquired thereunder',? 

Section 9 also contains a provision pertaining to grand jury secrecy but does nothing to 

restrict the application of the bill from sheltering violations oflongstanding and important 

protections for grand jury deliberations. The provision instead makes clear that the legislation 

"shall apply in any proceeding and in connection with any issue arising under" the law and rules 

that govern grand jury secrecy; in other words, this privilege can and will be used to protect 

leakers of grand jury information. 

SeetioD 10 Includes lUI. Overly Broad Def!pition of 'Covered Penon' 

The revised defUlitional section would have the effect of affording a broad "journalist" 

privilege to a potentially limitless class of people. The definition of a "covered person" bears 

little resemblance to any traditional or commonly understood notions of journalism.1 Indeed, 

under this section, essentially anyone who disseminates infonnation of any public interest on a 

regular basis would qualifY for the privilege, and for good measure so too would their 

"supervisor, enlployer, parent company. subsidiary, or affiliate." 

The carve-outs fur agents of a foreign power and menlbers of terrorist organizations 

effectively require the Government to demonstrate that an individual is a member of a particular 

group - something that may be difficult to do and in any event will often be disputed. FISA has 

long recognized this difficulty and requires the Government to have probable cause that an 

individual is an agent of a foreign power rather than conclusively prove that this is the case. 

I supporters of the legislation contend that the bill's definition of a "covered per!IOII" draws directly from a well 

establisbed line of case law beginning with the Second Circuit's holding in Von BflIow v. Von Bulow, n 1 F.2d 136 

(1987). To rely on a 21-year-old precedent handed down years before the dawn of the Internet age to define who is 

and is nnt a journalist is to ignore the revolution in media and communications wrougbt by the World Wide Web. 

The Von Bulow court simply did not have OIX:Mion to consider modern cireumstances, wherein news is routinely 

gathered and disseminated by a huge and constantly changing community ofbloggers and other amateur publishers. 

And yet these are the ci1'CUlll!t8llccs under which this bill is being considered. Citing VOI'l BflIow cannot alter that 

IiIct, nor can it change the serious consequences that this bill's definition of "covered person" will have for the 

Government's efforts to proIect the national security and enfun:e our criminal laws. 

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Moreover, individuals seeking to a'{1ail themselves ofthls privilege will be able to do so as long as 

they can stay one step abead of the agencies responsible for designating terrorist organizations. 

Additional Problems 

Seetion2; 

o In order to be compelled, source information must be "essential" to an investigation, 

proseeution, defense, or resolution of non-criminal matter, meaning that information that 

is merely "relewnt," and cwen information that is both material and favorable to an 

accused's defense. would not qualify for the exception. Such a standard would risk 

inftinging on the Sixth Amendment rights of criminal defendants. See United States v. 

Valenzuela-Bernal, 458 U.S. 858,867 (1982) (standard governing Sixth Amendment right 

to compulsory process is whether the information or testimony "would have been both 

material and favorable to his defense"). 

o In criminal and civil proceedings, the information upon which a patty may seek source 

information must be obtained from a source "other than the covered person." Given that 

in many cases publication by the covered person is the only evidence for seeking source 

information, this requirement is certain to cause serious practical difficulties in criminal 

and civil matters. 

o The standard for disclosure has actually been raised in cases that do not involve a eriminaI 

prosecution or investigation. This would likely have the greatest impact on civil litigation 

between private parties but could still adversely affect Executive Branch and independent 

agencies that bring cMI enforcement actions, including the SEC, CFTC, and FEC. 

o The balancing test has been amended to include yet another completely subjective 

consideration that can serve as the basis for blocking disclosure: "the public interest in 

gathering and disseminating the information or news conveyed." 

Section 4: 

o To satisfy the "terrorism" prong ofthls exception the Government effectively would have 

to wage a mIni-trial to establish that the information it seeks is reasonably necessary to 

stop, prevent, mItigate, or identify the perpetrator of an act of terrorism - something that 

(1) could be nearly impossible in cases where we have less than complete information 

about future attacks; (2) could be very difficult to do in cases whero the attack has already 

taken place, depending upon how far along a given investigation may be; and (3) in either 

case, could require the disclosure of additional sensitive or classified information. 

o By restricting the exception under seetion 4(a) only to acts ofterrori~m as defined in 18 

U.S.C. § 2331, that provision fails to include other serious terrorism-related offensesincluding the provision of material support to terrorists - that do not fall within the letter 

of section 2331. 

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o The "other activities" subsection is purely prospective - the Government could not obtain 

source information to investigate and prosecute these acts - and omits a wide range of 

serious crimes, including a number of offenses against children. 

o The court still has the discretion not to order disclosure even when the Govemment meets 

its burden. 

Seetlon8: 

o As discussed above, in order to satisfy its burden undet section 4 or 5, the Government 

will almost certainly have to reveal additional sensitive and classified information. The 

bill, however, does not contain adequate procedures to protect this information. Rather, in 

camera review is left to the court's discretion and ex parte review is permitted only where 

the court finds it necessary. 

No assurance of obtaining the informatiog; 

o A fundamental problem undetlying this entire legislation is that in the event thc 

Government carries its burden and convinces a court to order disclosure of source 

information, there is no guarantee the Government will actually get it. So long as a 

covered person is not required to provide the information being sought to the court as a 

precondition of eligibility for the privilege, there is nothing to prevent him or her from 

simply defying the court and refusing to reveal it to the Government. This is precisely 

what happens under current law when a journalist refuses to comply with a validly issued 

grand jury subpoena and, in some cases, a court order. 

This bill is eharacterized as a compromise between the Executive's interests in protecting 

national security and enforcing the law, on the one hand, and the freedom of the press to gather 

and disseminate news to the public, on the other. For a purported compromise, however, the 

terms of this bill are decidedly one-sided: The Executive is compelled to cede authority over core 

determinations such as (I) what does and does not constitute harm to the national security; (2) 

whether information has been properly classified; and (3) what information is necessary to a 

national security or crimina\ investigation. In return for imposing these and other very significant 

demands upon law enforcement and national security officials, the bill would impose upon the 

covered persons to whom it would extend its privileges no corresponding obligations. Covered 

persons are not required to provide evidence to the court detailing who their source is or even to 

demonstrate that they did, in fact, promise confidentiality to their source. Indeed, covered 

persons can continue to invoke the privilege even after the source to whom they protnlsed 

confidentiality has released the journalist from the agreement. In short, the bill would impose 

significant burdens upon the Government - burdens that will impede our ability to protect the 

national security and prosecute serious crimes - while leaving "covered persons" free to 

effectively flout the very law that protects them . 

.. .. .. 

7 
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We appreciate efforts to amend this legislation to address some of the problems outlined 

in our previous letter. In limited instances those problems have been alleviated. Overall, 

however, our core concerns about the effects of this legislation in the area of national security. 

and in other significant respects previously indicated, remain, and as a result this legislation is 

unacceptable. 

For the reasons set forth above, we strongly urge you to reject this latest version of the 

Free Flow of Information Act. The Office of Management and Budget has advised us that, from 

the perspective of the Administration's program. there is no objection to submission of this letter. 

Sincerely, 

00: The Honorable Patrick Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

The Honorable Arlen Specter 

Ranking Member 

Committee on the Judiciary 

United States Senate 

The Honorable John D. Rockefeller IV 

Chairman 

Select Committee on Intelligence 

United States Senste 

The Honorable Christopher S. Bond 

Vice Chairman 

Select Committee on Intelligence 

United States Senate 

QM(tIf(,~ J. M. McConnell 

Director of National Intelligence 

8 
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Appendix V 
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The Honorable Harry Reid 

Majority Leader 

United States Senate 

Washington, DC 20510 

The Honorable Mitch McConnell 

Republican Leader 

United States Senate 

Washington, DC 20510 

Dear Senator Reid and Senator McConnell: 

JAN 232008 

We are writing to add our views to those expressed in the September 26, 2007 

letter from the Department of Justice in strong opposition to S. 2035, the "Free Flow of 

Information Act" and earlier Justice letters strongly opposing its counterpart in the House 

of Representatives, H.R. 2102. As the Acting Principal Deputy Director of National 

Intelligence noted in his letters of September 27, 2007, the Intelligence Community js 

concerned that these bills will undermine our ability to protect intelligence sources and 

methods and could seriously impede national security investigations. 

The Intelligence Community understands the tension that can exist between the 

public's desire for information and the need to protect national security. Indeed, it is one 

that we struggle with on a daily basis. However, the high burden placed on the 

Government by these bills will make it difficult, jf nOI impossible, to investigate harms to 

the national security and only encourage others to illegally disclose the Nation's sensitive 

secrets. These problems, in tum, will impair our ability to collect vital foreign 

intelligence, including through critical relationships with foreign governments which are 

grounded in confidence in our ability to protect information from public disclosure. 

SafegUarding classified information in a free and open society already is a 

challenge for the Intelligence Community. We ask that Congress not make that challenge 
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The Honorable Harry Reid and The Honorable Mitch McConnell 

even more daunting. For these reasons and those set out by the Department of JUSlice, we 

urge you to reje£t S. 2035 and H.R. 2102, as CIllTCDtly drafted. 

()t~~ Director of Nati01illllntelligence 

Intelligcm:e 

Director, 

l&Y~ fBI 

Mr. 

~~¢=- Randall M. Port 

Assistant Secretaty of State, 

Intelligence and Research 

Under Secretary for Intelligence 

and Analysis, DRS 

Mr. ~ Large 

Director. NRO 

V ADM Robert Murren 

Director. NGA 

Enclosure 

Sincerely, 

~~ 

2 

Under Secn:tary of Defense 

for Intelligence 

GcneraJ ~~- Michael V. Ha 

Qin::ctor. CIA 

Assistant Secmmy for Intelligence 

and Analysis, Treasury 

Director. NSA 
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Appendix VI 
98 


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The Honorable Reid 

United States Senate 

Wllliihinll~n,DC ;WSIO 

Dear Senator Reid: 

SECRETARY OF DEFENSE 

1000 DVl!:NSe: PENTAGON 

WASHINGTON, DC 20301·1000 

to thooe of the Director ofNatiooai 

o~~i'lion to S. 2035, the "Free Flow 

Infilrm.ati()n Act. with the letter from Ill~:Ui~~en<:e 

ComnaUl1lity leader!l, we are coneamoo that this bill will undermine our 

information and soorces and methods 

inv'estigatiola5 ofunauthorizoo <lls,cl(JISW~. 

Hussein's fOl'CeS to more effectivellv 

OpernuolilS Forces into a battlefield; 

Disclosures of classified information about threaren 

the lives rnemoom and the success of current 

Such disclosures threaten the lives and of American citizens and the ~lfare 

of the Nation. 

the 

inc:rea:!~ing our 
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For these reasons and those set out by the Intelligence Conununity and the 

Department of Justice, I urge you to reject S. 2035. 

cc: 

The Honorable Mitch McConnell 

Minority Leader 
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Appendix VII 
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l'h" Honorable Joseph 1. I i~hermnn 

Chainnan 

Committee on I iomeiand Se.::urity 

and Governmental Amlir, 

United Stales Sena!" 

\Vashington. D.C 2051 

Chairman Lieberman: 

Apri! " 2(j1l8 

! am writing to add the views of the Department nfllomeland Security (DlIS) to ,)f the 

Departrm'm Qf Justke. the Director of Natiollal illtellig<Tlce. and other agende, in strong 

.. w",,,,iri,,,, to S. 2035, the Pree Flow or/!!timnalion ACf DIIS ndieve,; that S. 2035 \\lil 

the t:niled Stales both iess secure lind less Iree by sulw<:rting the enforcement ,,(criminal 

laws and til" Federal Govenul1ent's il1vestigator} powers. 

DIISis in'icstillali'l1nS of crimes. terrorist activities. and Nher 

threats to our hnmcllll1lL Tht:'>e the sought-after 

informmioll i~ oHen volatile and 

bill ert'CIS 

within a very limited The proposed 

critical In!'''nlllllinn from anyunc (,In 

induding and c()mmunicat}()n~ sefvke ~m:h H:$ 

internet providers, These dday the collection of int(1rmatiofl and 

that criminals ha\'<: opportunities to llYoid deteCtion, continue their pOlt'nti"lly dqnnpw"" 

llpt'r:llions. fllflher ()hflls~.!\c their illegal activities. 

Department nf Justice already presented II or the problems and 

dangers (If this bill and its companion measure in the DHS Cully 

conC\lrs with lhc:;c "kw:; and bcli~ve$ that S. 2015 would be clisastfOus 10 the Federal 

(;on:rnmem's 

who want to haml 

to delect, '''H';''tilW''', and ultimately 

i\uliol1. I urge you to 

criminals. terrorists. other; 

S. currel1!i! dr,[fted. 

The Ofiice of Mllnagemel1! and Budget has advised us that from the pC'rspective of the 

Administration's program, there is no to submission of this ktter. 1\/1 identical kucr 

has been senl 10 the Ranking Member Senate Committee on Homdand Security and 

Governmemal Am,!rs, the S,'natc i\lajorit} and i\linority 1e2lders. and the Chairman and Ranking 

\'kmber (If the Senate C(\mmittee on the Judiciar:' 

Sincc'rely. 
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Appendix VIII 
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The Secretary of Energy 

Washington, DC 20585 

The Honorable Carl Levin 

Chainnan 

Committee on Anned Services 

United State$ Senate 

Washington, DC 20510 

DcaI' Mr. Chaim1an: 

April 7, 2008 

This letter provides the views of the Department of Energy ("DOE") on S. 2035, the 

"Free Flow of Infonnation Act of 2001" (FFIA), which was reported by the Senate 

JudicIary Committee in October 2007. J am writing because this bill is of significant 

concern to DOE, and we n:quest that you and other members of the Anned Services 

Committee strongly oppose the bill if it is brought up for consideration on the Senate 

floor. 

The FFIA would provide a legal privilege for certain journalists against Federal entities 

seeking to obtain infonnation that identities a confidential source or was provided to the 

journalist under a promise that the infonnation would be kept contidential. DOE joins 

with the Department of Justi~e (DOJ), the Department of Defen,e, the Department of 

I /omeland Security, and other Executive Branch agencies, including the Director of 

National Intelligence and the other leaders of the Fedcrallntelligcl1cc Community, in 

opposing the FFIA because its passage would curtail the ability of Federal authorities to 

contain and prosecute breaches of national security and to protect the citizens of the 

United States. We concur with the legal analysis contained in the DO] letter of 

September 26, 2007, attached hereto, and would like to call special attention ttl the 

potential consequences of the FFIA as they relate ttl DOE's unique role in safeguarding 

some of our Nation's must important classified material and information. DOE alsu 

shares the specific national security concerns expressed by the Federal Intelligence 

Community in its January 23, 2008, letter, which is attached. 

DOE is responsible for mamtailling "Restricted Data," defined by the Atomic Energy Act 

of 1954 to include all data concerning (I) deSign, manufacture, or utilization of atomic 

weapons; (2) the producllon of special nuclear material; or (3) the usc of special nuclear 

material in the pruduction of cnl'rgy. Additionally, through its National Nuclear Security 

Administration, DOE is an integral part of the United States' efforts to reduce global 

dangers from weapons of mass destruction through (l) protecting or eliminating weapons 

and weapons-useable nuclear material or infrastructure, and redirecting excess foreign 

weapons expertise to civilian enterprises; (2) preventing and reversing the proliferatIon of 

weapons of mass destruction; (3) reducing the nsk of accidents in nuclear fuel cycle 
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facilities worldwide; and (4) enhancing the capability to detect weapons of mass 

destruction, includmg nuclear, chemical and biological systems. Simply put, DOE is 111 

possession of some oflhe Nation's most important and highly sensitive informatIOn. 

As the Committee is well aware, DOE and its National Laboratories and other facihties 

have been the locus of several serious security breaches. When these unfortunate 

situations do oecur despite our best efforts to prevent them, it is vital that our 

investigators and other Federal authorities have access to as much information as possible 

relating to the breach in order to determine the level of damage that has bcen caused and 

to contain any further dissemination of classified information. The FFlA could frustrate 

these efforts by allowing "covered persons" to avoid revcalmg the source ora breach and 

to avoid providing to Federal authorities any testimony or any documents relating to the 

breach. In fact, the FFIA could make the situation worse: encouraging dissemination of 

classiticd information by gIVing lcakers a formidable shield behind which thcy can hide. 

Regardless of who bears responsibility for tile occurrence ofllle initial security breach or 

loss of classified data, there can be no doubt that once such a breach has occurred, it is in 

the national security interest of the United States to ascertain how, when, and why the 

breach or loss occurred, to ascertain and limit the damage caused, and to prevent such 

breaches or losses in the future. Members of this Commince have made it clear that such 

remedial steps arc a critical priority. However, the FHA would frustrate these objectives. 

The FFIA purports to deal with these issues by providing an exception to the privilege 

that is created by the FHA, in order to assist in preventing terrorist activity or significant 

damage to national security, but we believe this exception would be ineffectual. In order 

to overcome the privilege, the Government would bear the burden of showing by a 

preponderance of the evidence that the evidence soughl will assist in preventing "an act 

ofterronsm" or "other significant and articulablc harn1 to national secunty." This is a 

heavy burden to overcome, the proof of which might in fact depend on the very 

information that is sought and yet foreclosed, and could require the Government to 

release yct more protected infonnation in attempting to make its case. Even irthe 

Govcmment is successful In showing that the mfom1ation would prevent significant 

damage to national security, judges would have the discretion to block disclosure to the 

Government if they felt that the "public interest" in maintaining a "frec now of 

information" would "outweigh" that damage. And cven if the Government overcomes all 

these hurdles, the delay in obtaining the identity orlhe source and in securing the breach 

could cement and exacerbate the damage done to the national security interests orthe 

United States. 

The Administration and Congress have consistently agreed that one of the gravest threats 

faced by our Nalion is nuclear material or infomlation relating to nuclear matcrial III the 

possession of global terrorist organizations or hostile regimes. History tells us that when 

security breaches occur, DOE and other Federal authorities must be able to react quickly 

and with the benctit of all ;wailable infornmtion to protect the citizens of Ihis country. 

2 
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The Office of Managemem and Budget advises thaI there is no objection to the 

submission of this letter to the Committee from the standpoint of the President' 5 program. 

ill summary, we urge you and the other members of the Committee to oppose this 

legislation. If you have any additional questions on this matter. please contact me or 

Ms. Lisa E. Epifani, Assistant Secretary for Congressional and Intergovernmental 

Affairs, at 202-586-5450. 

Sincerely, 

Samuel W. Bodman 

Enclosures 

cc: The Honorable John McCain 

Ranking Member. Senate Armed Services Committee 

The Honorable Patrick Leahy 

Chairman, Senate Judiciary Committee 

The llonorable Arlen Specter 

Ranking Member, Senate Judiciary Committee 

The Honorable Harry Reid 

Majority Leader 

The Honorable Mitch McConnell 

Minority Leader 

3 
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The Secretary of Energy 

Washington, D.C. 20585 

The Honorable lcffBingaman 

Chairman 

April 7,2001; 

Committee on Energy and Natural Resources 

United States Senate 

Washington. DC 20510 

Dear Mr, Chairman: 

This letter provides the views of the Department of Energy (DOE) on S. 2035. the "Free 

Flow of Infonnation Act of 2001" (FFlA), which was reported by the Senate judiciary 

Committee in October 2007 I am writing hecause this bill is of significant cone em to 

DOE, and we fClIue,l that you amI olher members of the Energy and Natural Resources 

Committee strongly oppose the bill if it IS brought up for consideration on the Senate 

floor. 

The FFlA would provide a legal privilege for certain journalists against Federal entities 

seeking to obtain information that identifies a confidential source or was provided 10 the 

journalist under a promise that the infonnation would be kept confidential. DOE joins 

with the Department of Justice (DOJ), the Department of Defense, the Department of 

Homeland Security, and other Execlltive Branch agencies, including the Director of 

National [ntelligence and the other leaders of the Federal Intelligence Community, in 

opposing tbe FFlA because its passage would curtail the ability of Federal authorities to 

contain and prosecute breaches of national security and to protect the citiz.ens of the 

United States. We concur with the legal analysis contained in the DOJ Icner of 

September 26, 2007, anached hereto, and would like to call special attention to the 

potential consequences of the FFIA as they rclate to DOE\ unique role tn safeguarding 

some of our Nation's most Important classified material and information. DOE also 

shares the specific national security concerns expressed by the Federal Intelligence 

Community in its january 23, 2008, letter, which is attached. 

DOE is responsible for maintaining "Restricted Data," defined hy the Atomic Energy Act 

of 1954 to include all datu conceming (I) design, manufacture, or utilization of atomic 

weapons; (2) the production of special nuclear material; or (3) the usc of special nudear 

material in the production of energy. Additionally, through its National Nuclear Sccunty 

Administrdtion, DOE is an integral part of the United States' efforts to reduce global 

dangers from weapons of mass destruction through (I) protecting or eliminating weapons 

and weapons-useable nuclear material or infrastru<:ture and redirecting excess foreign 

weapons expertise to civilian enterprises; (2) preventing and reversing the proliferation of 

weapons of mass destruction; (3) reducing the risk of accidents in nuclear fuel cycle 
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facilities worldwide; and (4) enhancing the capability to detect weapons of mass 

destruction, including nuclear, chemical, and biological systems. Simply put, DOE IS in 

possession of some of the Nation's most important and highly sensitive information. 

As the Committee is well aware, DOE and its National Laboratories and other facilities 

have been the locus of several serious security breaches. Whcn thcse unfortunatt: 

situations do occur despite our best efforts to prevent them, it is vital that our 

investigators and other Federal authorities have access to as much infonnation as possible 

relating to the breach in order to dc!ennine the level of damage that has been caused and 

to contain any further dissemination of classified infornlation. The FFIA could frustralc 

these efforts by allowing "covered persons" to avoid revealing the source of a breach ami 

to avoid providing to Federal authorities any testimony or any documents relating to the 

breach, In fact, the FHA could make the situation worse: encouraging dissemimnion of 

classified infonnatlOn by giving leakers a fonnidable shield behind which they can hide. 

Regardless of who bears responSibility for the occurrence of the initial security breach or 

loss of classified data, there can be no doubt that once such a breach has occurred, it is in 

the national security interest of the United Stales to ascertain how, when, and why the 

breach or loss occurred, to ascertain and limit the damage caused. und to prevent such 

breaches or losses in the future. Members of this Committee have made it clear that such 

remedial steps are a critical pnority. HoweVer, the FHA would frustrate these objectives. 

The FF1A purports to deal with these Issues by providing an exception to the priVilege 

that is crcated by the rFlA, in order to assist in preventing terrorist activity or Significant 

damage to national security, but we believe this exception would be ineffectual. In order 

to overcome the privilege, the Government would bear the burden of showing by a 

preponderance orthe evidence that the evidence sought will assist in preventing "an act 

of terrorism" or "other significant and articulable harn1 to national security." This is a 

heavy burden to overcome, the proof of which might in fact depcnd on the very 

infonnation that is sought and yet foreclosed, and could require the Government to 

release yet more protected information lfl attemptll1g to make its case. Even if the 

Government is successful III showing that the infonnatlon would prevent significant 

damage to national security, judges would have [he discretion to block dlsclosun: to the 

Government if they felt that the "publIc interest" in maintaining a "free flow of 

infonllation" w()uld "outweigh" that damage. And evt~n if the Govcmmcnt overcomes all 

these hurdles, thc dclay in obtailllng the identity of the source and in securing the breach 

could cement and exacerbate the damage done to the national security llltcrests of the 

United States, 

The Administration and Congress have consistently agreed that one orthe gravest threats 

faced by our Nation is nuclear material or infonnarion relating to nuclear materia! in the 

possession of global terrorist organiz3l1ons or hostile regimes. History tells us that when 

security breaches occur, DOE and other Federal authorities must bc able to react quickly 

and with the benefit of all available infonnation to protect the citizens of this country. 

2 
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The Offke of Management and Budget advises that there is no objection to the 

subm ission of this letter to the Committee from the standpoint (1 f the President's program. 

In summary, we urge you and the other members of the Committee to oppose tbis 

legislation. If you have any additional questions on this matter, please contact me or Ms. 

Lisa E. Epifani, Assistalll Secretary for Congressional and Intergovernmental Affairs, at 

202"586-5450. 

Sinccrely, 

Samuel W. Bodman 

Enclosures 

cc: The Honorable Pete V. Domcnici 

Ranking Member, Senate Energy and Natural Resources Committee 

The Honorable Patrick Leahy 

Chairman, Senate Judiciary Committee 

The Honorable Arlen Specter 

Ranking Member, Senate Judiciary Committee 

The Honorable Harry Reid 

Majority Leader 

The Honorable Mitch McConnell 

Minority Leader 

3 
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Appendix IX 
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DEPARTMENT OF THE TREASURY WA.Sf-iINGTON, D,C. 

S£CRETA~Y OF THE TJ'U!ASUnY 

The Honorable Max Baucus 

Chairman 

Committee on Finance 

United States Senate 

Washington, DC 20510 

Dear Chairman Baucus: 

April 15,2008 

This letter provides the views oflhe Department of the Treasury on S. 2035, "The Free Flow of 

lnformation Act of 2007" (FFIA). The Department strongly opposes this proposed legislation, as 

it would seriously undemtine the Treasury Department's programmatic eftorts to fight terrorist 

and other forms of illicit linance, and jeopardize our ability to review foreign investment for 

national security concerns. 

The FFlA proposes to provide a 'journalist'S privilege" or protection to a broad group of persons 

against disclosure of confidential source information, including documents or testimony related 

to the confidential source. We join the Department of Justice in the concerns raised in its letter 

of September 26, 2007 to the Senate Judiciary Committee, as well as those discussed in the 

April 2, 2008 letter from the Attorney General and Director of National Intelligence to the Senate 

Majority and Minority Leaders, which are attached. As evidenced by the two examples 

discussed below, unauthorized disclosures to the media can cause significant damage to critical 

Treasury Department programs that protect national security. S. 2035 would make investigations 

of unauthorized disclosures in the future extremely difficult to pursue, thereby making them 

more difficult to deter. 

Media Leaks Undermined Treasury's Terrorist Finance Tracking Program 

Shortly after the September 11, 2001 attacks, as part of an effort to employ all available means to 

track terrorists and their networks, the Treasury Department initiated the classified Terrorist 

Finance Tracking Program (TFTP)_ Under the TFTP, the Treasury Department has issued 

administrative subpoenas for terrorist-related data to the U.S. operations center of the Society for 

Worldwide Interbank Financial Telecommunication (SWIFT), which operates a worldwide 

messaging system used to transmit financial transaction information. 

On June 23,2006, The New York Times and two other major U.S. newspapers published articles 

disclosing the existence ofthe TFTP. The disclosure of the classified information has adversely 

affected our national security. From its inception, this classified program has proven valuable by 

providing unique information that has enabled the U.S. Government to locate and identify 

terrorist suspects and to map out terrorist networks. For example, the subpoenaed SWIFT 

information has provided key links in investigations of financiers and charities supporting al 
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Qaida and other signi ficant terrorist organizations, and has helped locate perpetrators of terrorist 

attacks. 

Though the program has proven to be a valuable tool for tracking terrorist organizations, its 

value has been diminished by the June 2006 media disclosures. On July 11,2006, Treasury 

Under Secretary for Terrorism and Financial Intelligence Stuart Levey testified about the TFTP 

before the House Financial Services Subcommittee on Oversight and Investigations, describing 

in his written testimony the exposure of the program as "very damaging" and further attesting: 

"Despite [their] attempts at secrecy, terrorist facilitators have continued to use the international 

banking system to send money to one another, even after September 11. This disclosure 

compromised one of our most valuable programs and will only make our efforts to track terrorist 

financing -- and to prevent terrorist attacks -- harder. Tracking terrorist money trails is difficult 

enough without having our sources and methods reported on the front page of newspapers." 

It is also important to note that the harm to the TFTP was not offset by any journalistic 

imperative. Indeed, The New York Times public editor, on October 22, 2006, published a selfdescribed "mea culpa" editorial in which he stated that he was "off base" in previously 

supporting the newspapers' decision to publish its June 23,2006 article. Though describing the 

decision as a "close call," he concluded: "1 don't think the article should have been published." 

Equally noteworthy is the Washington POS{'s editorial of June 24, 2006, in which the newspaper 

stated: "[This program] seems like exactly the sort of aggressive tactic the govemment should 

be taking in the war on terrorism." 

Media Leaks Undermine CFIUS Cases and Processes 

The Committee on Foreign Investment in the United States (CFIUS) is the interagency 

committee established to assist the President in implementing section 721 of the Defense 

Production Act of 1950 ("section 721 "). Section 721 provides the President with authority to 

review foreign investment transactions voluntarily notified to CFIUS for national security 

implications. CFIUS reviews such transactions, and may refer them to the President for action. 

The President has authority to suspend or prohibit any transaction where he detennines that there 

is credible evidence that the foreign interest might take action that threatens to impair the 

national security, and no other law is adequate or appropriate to address that threat. 

CF[US review depends heavily on the voluntary submission of substantial information by thc 

parties pertaining to their transaction. Regulations require that parties submitting a notice to 

CFIUS provide detailed information (personal and proprietary) about themselves and the 

transaction, including their businesses' structures, commercial relationships and affiliations, 

transactional documents, market share and business plans. In recognition of the sensitivity of 

this information, section 721 prohibits public disclosure of such documents or information, 

except in the case of an administrative or judicial action or proceeding, and further exempts such 

documents and information from disclosure under the Freedom of Information Act. 

In recent years, there have been several instances in which pending transactions and their related 

details have been leaked to and reported by the press. Unlawful media disclosure of infornlation 

provided to CFlUS risks fundamentally undennining the critical national security review 

process. Companies could becomc reluctant to submit their transactions for review. Those that 
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do file may become less forthcoming in the information they provide to CFrtJS. Media leaks 

also undermine the integrity of the interagency deliberative process, chilling the full and open 

discussion that is essential to CFrtJS's decision making. 

Breaches of confidentialjty could also chill foreign investment. Firms otherwise willing to invest 

in the United States may become less inclined to do so if submitting to a national security review 

process risks public exposure of sensitive personal, proprietary, and business information. Also, 

repeated leaks may make other countries less inclined to provide robust protections for 

confidential information provided by U.S. companies, putting U.S. companies with international 

operations at a competitive disadvantage to local companies. 

Thank you for considering our concerns. As is evident from the examples above, unauthorized 

disclosures to the media put at risk effective Treasury Department programs important to the 

nation's security. S. 2035 would make unauthorized disclosures much harder to investigate and 

therefore more difficult to deter. For these reasons, we urge you to reject S. 2035 as it is 

currently drafted. 

This letter also has been sent to the Ranking Member of the Senate Finance Committee, the 

Majority Leader and Minority Leader of the Senate, and the Chairman and Ranking Member of 

the Senate Banking Committee. 

Sincerely, 

~A~ Henry M. Paulsoll, Jr. 

Enclosures 
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Appendix X 
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CHAMBER OF COMMERCE 

UNITED STATES OF AMERICA 

R. BRUCE JOSTEN 

!o\:.f:{'l ·rlVL \l('f:. f'UF::-;IDf,S! 

C{)VI'R"IMFI"I Ai-~A!f{S 

The Honorable Pmrick Leahy 

Chaimlan 

Commillee on the Judiciary 

United States Senate 

Washington, DC 20510 

.Iuly :'9, 20]1 

The Honorable Chuck Grassley 

R:lI1kin~ Member 

Committee on the Judiciary 

t:nitcd States Senate 

Washington, DC 205] () 

DcaI' Chairman Leahy and Ranking :v1ember Grassle}: 

The U.S. Chamber ,,1'Commerce, the world's largest business federation representing the 

interests of more than three million businesses oral! sizes. sectors, and regiun" as well as stale 

and local chambers and industry associations, and dedicated to promoting. protecting, and 

detCnding America's free enterprise system, "pposes S. 987, the "Free Flow or Inl'olTnation Act 

of2013," as cUlT<.mtly dralted. The legislation would have signiticant adwrse ramifications on 

the ability of Americans to protect personal and proprietary information. The Chamber urge, the 

Committee to not report this legislation to the full Senate unless and until ,evcral impOl1ant 

deiideneies in the legislation arc addressed. 

The Chamber supports a \,ital and dynamic free press. We fully appreciate that a repmwr 

privikge can be appropriate in man~ circumstances. Our concerns with the legislation arc not 

with roroners who simply report informatioll from those who choose not to be identiticd. but 

with a narrow set or sources who arc bad-actors lInd use the media to illegally disseminate 

conlidential inlllfll1mion. When Congress considered a similar bill in 2005. the ombudsman t(lr 

the .','all Fhmdsco ('hronicle warned that there is "danger nf miscltief on the pari of sourCes who 

know tltey can escape accountability:' Evidentiary privileges should not protect individuals who 

willfully usc them to commit and cover up crimes. S. 987 would not onl} protect these 

individuals. but hy doing so, \vould emholden their illegal acth'itics. 

S. 987 would pmtcet people who vinlate laws that sateguard the wnticiential inl(lrtn:Hh'n 

of private individuals. businesses. and other entities. This ~onfidentiaJ intl>rmatiofl incluot.!'s 

tederally protected trade secrets. personal health information. customer or employee data. and 

ini'onnatil...m scaled under judicial protective orders. among others. In tlv.:sc dn:umstanccs, the 

public policy dedsiem has been made that this in!'ormation should nol be ,ubje'ct to public 

disclosure. When protected int'ormati"n is leaked. there is no way to limit the damage "fthe 

disclosure. Yet, S.9R7 would rrotect titnse whe) violate these laws. 

Further, this billlVould provide these individuals "itit a near-aosolute privilege. It puts 

several weights Oil the scalcs n['justice that need to ill' removed. For example, the hill would 
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rClJuin: that til" information sought must be "css"nlitd to th" resolution" of the underlying legal 

matler. whereas common I"w reporter privileges in several Courts of Appeal alk)\\ litigants 

access to a reporter's information if the information is relevant to the under!: ing claim. There 

has been no finding that this "relevance" standard is insufficient or has been abused. The bill's 

"essential to the resolution" provision is unnecessarily stringent and dramatically lil11its" person 

or business's ability to protect and retrieve confidential information. In addition, th" public 

imerest balancing test included in S. 987 should be adjusted to create a neutral. achievable result. 

As ('urrcntly drafted, the balancing tcst is weighted in lilYO!' of private interests and creates a 

confusing standard that \yould be difticult to apply uniformly. Further. the dct1nition of reponer 

should not reach non-traditional "journalists" \\i1o have interests beyond legitil11tltd) gathering 

and disseminating m:ws. 

S. 987 would also unintentionally undermine other aspects of tile First Amendment. 

Under the bili. infix!l111tion like a group's member or donor list would potentially be unprotected 

if the illfonnation were s\(lien and leaked to a r"poner. This is e.xtlcerhatcd when the definition 

of rcponer is extended to non-traditional news sources Ihat oftcn have a politically l110tivated 

agenda. The disclosure or this information would violnte the rights of individual> to fr~cly 

associate and could he used to targct and silence those who support disfavored causes. As a 

result. this hill. which is aimed at protecting First Amendment speech. would ultimately 

undermine those principle's by racilitating retaliation against certain speak\.'rs. 

In the past. when Congress has cnackd public-right-to-know legislation, it has alwa)" 

.:nsurcd that priv;:H.'Y 13\\s can also be cn!(\rccd. The Freedom of Inti.llllJation Act (FOIA) 

exempts li'om disclosure inforl11ation protected by law. proprietary or privileged business 

infonn3tion, and inf<1rI11ation that could lead to unwarranted invasions of personal privacy. 

Similarly. whistlcblnwcr laws protect only the reporting of information rdated to suspected 

wrongdoing. not the disclosure of all private information. S. 987 should sirike this same balance. 

The Chamber would welcome the oppol1unit) 10 v.ork with the sponselrs ofS. 987 tllld 

with the other members of the Comrniuec tn addn:ss these concerns. However. until the serious 

concerns rais<;:d in this letter can be addressed. the Chamber 0pPl1SCS the "Fr,'e Firm of 

Inf,)r1natioll :'\ct," as clll'relltl~ draned. 

Sincerely. 

R. Bruce Josten 

cc: Members of the Senate COlllmittee Oil the JUdiciary 
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Appendix XI 
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The Honorable Lamar S. Smith 

Ranking Member 

Committee on the Judiciary 

U.S. House of Representatives 

Washington, D.C 20515 

Dear Ranking )V'kmbcr Smith: 

U.S. Department of Justice 

Office of Legislative Affairs 

JUl 31 m 

This letter responds to your request th,11 the Department of Justice provide its views on 

H.R. 2102. the "Free Flow or In/ormation Act" It is our understanding that a Manager's 

Amendment to H.R. 2lO2 will be considered during Full Committee consideration of this 

legislation. This letter reflects the Department's views toward Ihis revised proposal and 

expresses the Department's strong opposition to H.R. 2102 and the proposed Manager's 

Amendm~'nt to thiS legislation. 

H.R. 2102 would provide a '~oumalisrs prh'i!ege" protecting against not juS! the 

disclosure of confidential source information but also "testimony or ... any document related to 

infomlation possessed by such covered person[sJ as part of engaging in joumalism." While the 

Department appreciates the attempt to address some of our concerns toward the legisJati<,n. the 

bill as amended would still impose significant limitations on the Department's ability to 

investigate Jnd prosecute serious crimes. Accordingly, the Depanment continues 10 strongly 

oppose this legislatIOn. Our detailed views on the bill, including the :-vlanagcr's Amendment, 

follow. 

H.R. 2102 is the latest of several different proposed "media shield" bills to come befOre 

the Congress in recent years, and the Department has made its views on each kno"'I1 both 

through views letters and in public testimony before congressional committees in both the House 

of Representatives and the Senate. I Many of the objections the Department raised ill earlier 

Sel!. e.g .. Testimony of Assistant Attorney Geneml Rachel L. Brand. Heanng 011 "The Free 1'1t)\\ 

of int')fOlillioll Act of 2007." Hottse JudiCIary C'omm (June 14.20(7); Department of Jus!!ce l.etter to 

Sen. Specler daled June ZO, 2006. on S. 2831; Testimony of Deputy j\ttomey General Paul J. "leNullY. 

Hearing on "Reponers Pnvilege Legislation: Preserving Elle,,!;"c Fedc-ral Law Enk'rcement," Senate 

JUdlClUfY Comm. (Sept. 20,20(6): Testimony of Prim"pal Deputy .... ,;sistam All{)mey General Matthew 

W. Frlednch. Hearing on "Examining the Department of justice's InvestIgatIOn ofJoumalists Who 
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The Honorable Lamar S. Smith 

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views letters and in testimony apply to the current bill, and so we commend those earlier 

statements of the Department's views to your attention as a supplement to this letter. In addition 

to the objections previonsly raised by the Department, H. R. 2102 raises even greater concerns for 

the following five reasons. set out more fully below: 

1. H.R. 2102 would make it virtually impossible to enforce certain Federal 

criminal laws, particularly those pertaining to the unauthorized disclosure 

of classified information, and could seriously impede other national 

security im'csligatiou5 and prosecutions. including terrorism prosecutions; 

2. H.R. 2102 would impinge on a criminal defendant's constitutional right 

under the Sixth Amendment to subpoena witnesses on his behalf; 

3. H.R. 2102 unconstitutionally transfers core Executive branch powers and 

decision-making to the Judiciary: 

4. H. R. 2102 also threatens to limit other judicial powers; and 

5. H.R. 2102's definition of a joumalist still appears to provide protections to 

a vcry broad class of individuals·--not just the "professkmal journalists" 

contemplated by lhe Manager's Amendmcnt--thus raising significant 

obstacles to law enforcement. The definition alw would be open to legal 

challenge on First Amendment grounds by the very individuals the 

Manager's Amendment seeks to exclude from its definition of "covered 

person." 

For all of lltl:se reason, :mu ,host.' thal Ibllow. the Department strongly opposes !-l.R. 

2102 and the Manager's Amendment that will be offered during it.s markup considenllion heiore 

the Judiciary Committee. 

As an initial matter, the Department of Justice has long recognized thlll the media plays :l 

critical role in our society, a role that the Founding Fathers protected in the First Amendment. In 

reccgnition of the importance of the news media to our Nation, the Department has, for ovcr 35 

Puhlish Classlfic.j InfomlullOn: LeS~OflS from the Jack Anderson Case," Sena!~ Judiciarv \omm. (June 6. 

2006): Srarcl1lt'nt of United Stat", Artomey l{lrthc SOll!hem DIstrict ()fTexa, Chuck Ro~enberg, Heanng 

.In "S. 1419. the 'Free Flo" oflnfomlatlOfl Act of2005 ... · Senate JudICiary C()mmlt1ee (October 19. 

200S): Statement of Deputy AttOrney General James B. Corney. tle-drmg on "Rcporter~' Pnvdcgc 

Legislat;on: Issue,; and Implications of S .. '4U and H R. '81. the Fret: Flow of In "Jlmal IOn Act of 2005," 

Senate Judi",.,y Cmnm. L111ly 20. 20(5) 
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The Honorable Lamar S, Smith 

Page :I 

years, provided guidance to Federal prosecutors that strictly limits the circumstances in \",hich 

they may issue subpoenas to members of the press, See 28 c'F.R § 50.10. The exhausthe and 

rigorous nature of this policy is no accident; it is designed to deter prosecutors from even making 

requests that do not meet the standards sel forth in the Department's guidelines. As a result, 

prosecutors seek to subpoena journalists and media organizations only when it is necessary to 

obtain important. material evidence that cannot reasonably be obtained through other means. 

The cffecti\'cness of thi, policy, and the seriousness with which it is treated within the 

Department, contradict the allegations some have made about the Justice Department's alleged 

disregard for First Amendment principles, Since 1991, the Department has approved the 

issuance of subpoenas to reporters seeking contidential source infonnation in only 19 cases,' 

The authorizations grilllted for subpoenas of source information have been linked closely to 

significant criminal matters that directly affect the public's safely and welfare. 

Moreover, while critics argue thaI there has been a marked incrense in the number of 

confidential-source subpoenas approved by the Department in recent years, such claims cannot 

withstand se.rtlliny, as the totlo"ing chart makes clear: 

In only two of tn()oc nineteen mutters was the G()'vemmt'11t seeking to que5tlon a reporter under 

oath In reveal :he ldentlly or a confidential source. In one ofth.: two matters. the media memh,;r wa, 

wllhng to identity' hIS source Ul response .(l the subpoena, In the other matter, the Department withdrew 

the media subpoenas after it had obtained other eVidence concerning the SOUlee of the information and 

that source agreed to plead guilty, Of the nineteen source,related matters since 1991, only fOUl have been 

appro\'cd since 200 I The nineteen source-related matters referenced above do not include any media 

subpoenas Issued by Special t 'ounsets because those requests lor media subpoenlls are not processed by 

the Department and, as a result, tht: Department does nOl keep reeords concerning those maUers, 
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The Honorable Lamllf S. Smith 

Page 4 

These numbers demonstrate a decrease in the number of cases in which the Dt'J)lIrtment hns 

approved the issuance of subpoenas seeking confidential source infomlation in recent years: of 

the 19 souree-rela1ed mat1ers since 1991, only four have been approved since 200 I, 

In light of this record of restraint, the Department believes that this legislation would 

work a dramatic shift in the law With little or no cYidencc that such a change is warranted. 

Supporters of the bill contend that, in the abslmce of a reporter's privilege, sources and 

joumalists will be chilled, newsgalhering will be curtailed. and the public will suffer as 11 result. 

Such arb'1.11nent.~ are not new Thirty-five years ago. when the Supreme Court considered the 

issue ora reporter's plivilege in the landmark cas.: of Branzburg \'. HaytJs, 408 U.S. 6651 t9711. 

litigants and numerQUS mll/CII.I' hriefs llrgued that. in the absence of such a privilege, the free flow 

of news would be diminished. The Court cOllsidered lind rejected such arguments, finding that 

"[e]stimales of the inhibitmg effect of ... subpoenas on the willinb'l1eSS of informants to make 

disclosures to newsmen are widely divergent and to a great extent speculative," Jd. at 69~-<)4. 

Given the profusion of inionnalion that has become available to the public in the 35 years since 

Brcmzbul'g, it is difficult to dispute the Court's conclusion. Intom1ation now flows more freely 

and on more topics of il1lerest 10 the public than al any time in our Nation's history. 

Allegations made by supporters of this legislation tbat this free flow of infoml11tioo has been 

sutled or will diminish in the absence of a statutory privilege arc no less speculmive today than 

they were 35 years ago. n,is legislation. as Deputy Attorney General Paul McNulty stated in 

testimony belore the Senate Judiciary Committee in September of last year, is "a solution In 

search ofa problem." 

H.R. 2102, and the Proposed Manager's Amendment Would Make It Virtually Impossible Tg 

PrqsecUle "Leak" Cases And Difficult To Prosecute Other Types Of Cases In C'ertalll 

Cir.,9umstances, Includil1g..Jerrorism Cases 

First, it is critical to note that. because the privilege created by HR. 2102 could only be 

overcome when disclosure of a source "is necessary to prevent an act of terrorism against tht: 

United States or other significant specified ham1 10 national security" or "death or significant 

bodily harm" "with thc objcctivc to prevent such hann," the legislation creates :l bar so high that 

many criminal investigations could not satisfy its rcquiremcllIs. Under the Ml:.nager's 

Amendmem, Section 2(a)(3)(A) of the bill would permit disclosure of the identity of a source 

only when necessary "to prevent an act oftcrrorism ltgainsl the United States or other significant 

specified ham1 to the NatiQnal Security." As a result. the Manager's Amendment to H.R. 2102 

still provides exceptions to the reporter's privilege only as a preventative measure, and not as a 

means to gather informalion about any past crime. past harm to national security, or any fU1ure 

harm to the national security that IS less than specific. In addition. the amended version of the 

legislation permits Federal law enforcement (0 issue a subpoenll for confidential source 

information only to prevent "an act of terrorism against Ihe Un/led Slates." The plain language 

of the Manager's Amendment thus precludes the issuance of subpoenas for information related 

to terrOn5t attacks against allies of the l.·niled States. 
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The Honorable Lamar S. Smith 

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To demonstrate the significance of the burden H.R 2102 would impose upon law 

entorcement, assume that a contidential source told a reporter which terrorist organization was 

responsible tor a particular terrorist attack that occurred that day, so that the group could accept 

responsibility for the attack. The govenunent would be powerless to compel the reporter to 

name the source, which would obviously aid the investigation into the group's conspirators. 

because the attack had already occurred and thereforc the investigation would not be "with the 

objective to prevent such harm." See H.R. 2102 al § 2(a)(3}(A). lnsteru:i, the investigation would 

be designed to bring 10 justice the terrorists who had just attacked our Nation. but H.R. 2102 

would thwart that goal by blocking the most logical avenue for investigation by law 

enforcement. The proposed Manager's Amendment to the legislation does not cure this defect. 

lndoed. H.R. 2102 has the anomalous eiTee! of placing a greater burden on the 

tlovernmen! in criminal cases--inclllding cases impllcating national $ecurity-~than in cases in 

which the Government seeks to identify a contidential source who has disclosed a valuable trade 

secret. personal health inforrnalion, or nonpublic. consumer information. In cases in whtch the 

Government sought the identity of II source who had unlawfully disclosed national Sl..>curityrelated inforn1ation. the bill would rlXluirc the Government to show that disclosure orthe source 

was necessary to prevent an act of terrorism or other significanl specified hann to national 

security. Thus. where damage had already been done to the national se\:urity as a result of a leak 

and publication of classified information. the Government could not obtain the identity of the 

$ource~ Bm the Government would not be required to make such II showing in order to obtain 

the identity of a source who had violated Federal law by disclosing a trade se\:rel. TIle person 

who leaks classified war plans. therefore, would still be protected by the privtlege if the 

journalist to whom he leaked the information had already published it. while the person who 

leaked trade secrcts would not. Thus. the evidentiary threshold proposed by H.R. 2102 would 

create all incentivc for "covered persons" to protect themselves and their sourees by immediardy 

publishing the leaked inforn1alioll, even if national security would be hanned. bt'Cause once the 

harm actually OCcurs it would,be nearly impossible for th~ Department of JlIstice to investigate 

the source of that information.' 

------~~-~--

It iSlIlso worth noting that the bill shifts the burden ofproofto the Gov;:rnment, III a manner that 

is unacceptable It) the Department. Under F.:derlll Rule ofCrtminal Procedure 17. the reclpient ofa 

~"bpoollll {'an now move to quash the subpoena bm, in order to prevail, must make a showing that the 

subpoena in question is "unreasonable and (lpprcssi\'e~" Fed. R. Crim. p, 17(c)(2). That IS to say. the 

hurdcn J5 "n 111(' party seeking to quash the subpoena to demonstrate its unreasonabitmeS5 or 

"P)1I'esslveness, The proposed bIll, however, shili, the burden m the Government, while simultaneously 

lI1cycasing the amount of prou!' the Government must mtroduce before a subpoena can issue to a member 

of the mccila. This is no! an inslgmficant change: the allocatIOn of the burden. as a legal matter, can have 

:i tremendous effect on the outcome of a proceeding, for It requires the pany carrymg thc burden not only 

t() produce eVIdence. btll to produce 11 111 sutlklcnt quanltty and quality 10 order 10 calTY the day. 
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The Honorable Lamar S. Smith 

Page 6 

Even if we assume the Government could overcome the very high standard for disclosure 

contained in H.R. 2102. doing so in cases involving national security and terr01ism will almost 

always also require the Government 10 produce extremely sensitive and even classified 

information. It is thus likely that tbe legislation eould encourage more leaks of classified 

inlormalioJl--by giving leaker:; a formidable shield behind which they can hide-while 

simultaneously discouraging criminal investigations and prosecutions of such leaks-by 

imposing such an unacceptably high evidentiary burden on the Govenunent that it virtuaJly 

requires the disclosure of additional sensitive ihformation in order to pursue a leaker of cJa~sified 

information. 

Criminal investigations could also be hampered by the requirement of Section 2(a){3}(B) 

that disclosure be necessary to prevent imminent death or significant bodily harm Witlllhc 

objective to prevent such death or harm. A real-life example demonstnltes how this might arise. 

In 20()4, the notorious "STK Stnmgler" emerged Irom years of silence to begin 

corresponding with media representatives and law enforcement entities in Wichita, Kmis.1$. The 

killer calling himself "BTK" had terrorized Wichita with a string of violent homicides, but 13 

years had elapsed since his last murder. In repeated correspondence, '"BTK" described 

previously nonpublic details of the past murders and provided corroborating evidence such :IS 

photographs taken during the crimes. Yet authorities were no! able to identify a suspect. 

"BTK" then sent II computer disk to a television station, The television station turned over the 

disk to police. and forensic experts were able 10 extract hidden information from the disk that 

tied it to a particular computer and \Ili<:r.' This enabled Jaw enforcement officers to arrest 

Dennis Rader. who eventually pled guilty to I () murders. 5 

If the television station had refused \0 disclo:.'e the computer disk, and H.R. 2102 had 

applied in the case, Rader might never have been apprehended and the families ofthe murder 

victims would slill be awailing.instice. Because all oCthe information related to long-past 

killings, law enforcement would not be able to demonstrate that disclosure was necessary to 

prevent imminCIIl death. Even if it is assumed that a responsible media outlet would voluntarily 

tum over information related to 1\ senal killer. we cannot expect that criminals will always 

provide information to ri:sp,)//sihle media. or that i\ "mainstream" publication will always tum 

over inJormation related to a less sensational crime. The ~,11mager' s Amendment to H.R. 2102 

docs not address these de iCC1S. 

"State's Summary of the EVIdence. filed Augu~t 18. 2005 (Case No. OSCR498, Eighteenth JudiCIal 

District., District Court SedgwiCk Coumy. Kansas. Crtminal Department) available III 

h!!l!:ll\'''''''.s\!d£wid.£Q!!!m:,gr&,d1l!Qs..m~is Radc[::..Q~s~~:l(Ui~9.u:::u;;JI~.\jllt'l:2;~~E~23IJlli..L£Jlil1 {last VISltoo July 16. 20071, 

"PatrIck O'Dnsc'olL ·8TK' Calmlv (;i"'5 Horrific De/ails. liSA Too,\\". June ~~. 2005. at 3A. ,!WlI/llh/<' 

<112005 WLNR 10181832. 
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The Honorable Lamar S. Smith 

Page 7 

Finally. the Department notes that H.R. 21()2 imposes several additional requirements 

beyond the extremely high evidentiary hurdles outlined above. The Manager's Amendment, in 

an apparent attempt to incorporate the language of Federal Rule of Criminal Procedure 17, 

requires the Government to demonstrate that the subpoena it seeks to issue is not "overbroad, 

unreasonable or oppressive," H,R, 2J02 at § 2(b){1). It further requires. in etTect, that any 

testimony or information compelled must exclude "nonessential" information -- Le. the 

illfonnation must be confined to "essential" information. ld. 2(b)(2). How those seeking the 

information would be able 10 detemline whether infomlation they have not seen is "essential" is 

not evident. Thus, even in cases wbere the government has demonstrated that disclosure of u 

source is necessary to prevent an act of terrorism or other significant specified harm. the hill 

provides putative subpoena recipients another avenue for resisting production--and thiS is in 

addition to the catch-all "public interest" provision. that would allow covered persons to quash 

otherwise valid subpoenas on the grounds tbat "tbe public interest in compelling disclosure" does 

not "outweigh[] the public interest in gathering or disseminating news or information." Il.K 

2 102 ~ 2(a)1,4). 

H.R 2102 further provides that, "where appropriate," "any document or testimony that is 

compelled ... be limito!d to the purpose of verifying published inrormation." H.R. 2102 § 

2(b)( I). This provision of the bill leaves prosecutors in an untenable position. If prosecutors 

may only seek confidential source infonnation in order (0 "verify published information." then 

they may never be able to obtain source infomlation collcerning a leak of national security 

information which has not yet been published in the media. However. if the leaked information 

has already heen published by the media and the damage already done to national security, then 

prosecutors may he ullllble to make a showing that "disclosure orthe identity of such a source is 

necessary to prevent an act of terrorism against the Uniled Stales or other significant specified 

harm to national security:' See H.R. 2102 at § 2(a)(3)(A). In other words. H.R. 2102 puts 

Department of Justice prosecutors in an insolvable dilemma and effectively provides absolute 

immunity to leakers of sensitive national security intormation. As a result. a person who 

unlawfillly leaked classified war plans to the media. which were published and resulted in the 

deaths of hundreds of U.S. soldiers. could not be prosecuted under H.R. 2102 by subpoenaing the 

reporter for source infonnation simply because the national security hann had already occurred 

and the subpoena would not be "limited to the purpose of verifying puh!ished infornll!tion." The 

Manager's Amendment does not address this conCem. 

Finally. it may be argued that. in some or all of the examples cited above. responsible 

media organizations would voluntarily tum over tbe information in their posseSSIOn to assist la\\ 

enforcemem in thc idemlfication, apprehension. and prosecution of culpable individuals. Even 

assuming that this would in fact he the ease and the Depanment is skeptical that it would be the 

case. for exanlple. in cases involving leaks of classifIed national security infonnution-relying 

on the goodwill of news organizallons \0 tU111 over eVidence in cases of serious criminal activity 

is a very risky proposition, For, such a proposition requires us in llIm to take it on faith Ihat 

dangerous and, in some cases. VIolent eliminals will only give evidence and informatlon to 
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The Honorable Lamar S. Smith 

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"responsible" media outlets (who in turn will volulltarily provide the infonnation 10 law 

enforcement), rather than give it to some less reputable entiiies or individuals who nevertheless 

would still qualify as "covcred persons" under this legislation. To state such a proposition is to 

refute it. The Manager's Amendment to the legislation does not overcome these basic concerns. 

H.R. 21021mpennissiblv Imllairs the Sixth Amendment Rights of Delendants 

The Sixth Amendment provides in relevant part that "{i)n al! crimina! proceedings. the 

accused shall enjoy the right ... to be confronted with the witnesses against him ... [andl to have 

compulsory process for obtaining witnesses in his favor." As the Supreme Court has recognized, 

"[tJhis right is a fundamental clement of due process of law." Washingtoll I'. Texas, 388 C.S. 14, 

19 (1967), Although this right is not absolute, the Government bears a heavy hurden when it 

seeks to limit it by statute. As the Seeond Circuit has explamed. "[wJhile a defendant's right to 

call witnesses on his behalf is not absolute, a stale's interest in rcstrkling who may be called will 

be scrutinized closcly. In this regard, maximum 'truth gatbering,' rather than arbitrary 

limitation, is the favored gOItL" ROIl.>01l 1'. Commissi(Jller of CorrectlOlls, 604 r.2d ! 76. 178 (2d 

elr. 1979) (Stmc "ourt's refusal to allow t~'Stimony of psychiatrist to testify in slIppon of 

prisoner's insanity defense violated Sixth Amendment right to compulsory process.) 

H.R. 2102 would violate the Sixth Amendment rights of criminal defendants by imposing 

impennissibly high standards that must be satisfied before such defendants can obtain testimony, 

infornlation, and documents that are necessary or helpful to their defense. Under RR. 2102, a 

criminal defendant can only obtain teslimony, documents, Of infonnation for his defense if he 

can persuade a court that: (l) he has exhausted all reasonable alternative sources; (2) the 

testimony or document sought is "critical" to his defense. rather than merely rdevant and 

important; (3) the testimony or document is not likely to rcveal the identity of a source of 

infolmation or to include information that could reasonably he expected to lead to the identity of 

such source; and (4) "the public interest in compelling disclosure outweighs the public interest in 

gathering Of disseminating news or infonnation:' See H.R. 2102 § 2(a). These burdensome 

standards go beyond what is pennissible in reslricting defendants' Sixth Amendment rights in 

this context. See. e.g.. United States v. Libby. 432 F. Supp. 2<1 26, 47 (D.D.C. May 26, 2(06) 

CfT]his COUl1 agrees with the defendant that 'it would be absurd to conclude that a news 

reporter, who deserves no special treatment hefore a grat1d .iury investigating iii crime. mlly 

nonetheless invoke Ihe First Amendmcnt to stonewall a crimillal defendant who has been 

indicted by that grand jury and seeks evidence 10 establish his innocence. "'}; Ulllled SImes v. 

Lindh, 210 F. Supp. 2d 780, 782 (ED. Va. 20()2) (a defendant's "Sixth Amendment right to 

prepare and present a full defense to the charges against him is of such pammount impo;tnnce 

that It may be outweighed by a First Amendment joumalist privilege only where the .10l1malis!'s 

testimony is cumulative or o!herv<ise not tlMtcrial.") 

Indct.'d, one could imag1lle a scenario in which a criminal defendant had been charged 

wilh a crime he did not commit. a murder for example, duc to a good-faith misinterpretation or 
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The Honorable Lamar S" Smith 

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circumstantial evidence by the prosecution. Due to media coverage of the case. a member of the 

community realizes that one of his cousins had previously admitted (0 him that he actually 

committed the mnrder, and that an innocent man is now facing trial for a crime he did not 

commit [n an attempt to rectify thl! situation, this person decides \0 notify a member of the 

media that the authorities have charged an innocent man with the murder. but he insists on 

confidentiality to avoid implicating his cousin in the crime. The journalist publishes a story that 

the authorities have charged the wTong person with the crime. but refuses to name the sourcc for 

this infonnation. Under H.R. 2102. the defendant's lawyer could not compel the journalist to 

reveal the source because these facts would not meet allY of the three elements contained in § 

2(a)(3) of the legislation. Likewise, even if the Government agreed to dismiss the eharges 

against the current defendant. based on a completely unsubstantiated media report, the prosecutor 

would be powerless to compel the journalist to reveal his source becallse the murder had already 

occurred and. therefore, as noted abuve, the subpoena would not satisfy the requirement that 

"disclosure of the identity of such a source is necessary to prevcnt imminent death or significant 

bodily hann \'iith the objective to prevent such death or hann." H.K 2102 § 2(a)(3 i(B). 

The Bill Transfers Core Executive Functions to the Judiciary 

One oftbe most troubling aspects of the proposed legislation is the core structural change 

it would work on cUlTen! law-enforcement prdctice-a change that will severely hamper our 

ability to investigate and prosecute serious crimes, including acts of terrorism and the 

unauthorized discloSllrc of classified information. Under the proposed legislation. before 

allowing the issuance of a subpoena to the news media in a national security-related case for 

inlornlalion "that could reasonably be cxpected to lead to the discovery" of a confidential source, 

a court must dct('Tmine "by a preponderance of the evidence" that "disclosure of the identity of 

such a source 15 necessary to pre vel\! a terronst attack or significant specified harm to nationnl 

security," H.R. 2102 at § 2(a)(3)(a); that "thc public interest in compelling disclosurc outweighs 

the public interest in gathering or di,semmating news or infomlation," H.R. 2102 at § 2(a)(4): 

and that '"[t} content of any testimony or document that is compelled" . " [is] not.. overbroad. 

unreasonable or oppressive and, where appropriate, [is] limlted \0 the purpose of verifying 

published infomlation or describing any surrounding circumstances relevant (0 the accuracy of 

such published information:' H.R. 2102 at § 2(b)(1). 

By lIS own tcnns, then. H.R. 2102 not only cedes to the Jlidiciary the authority to 

determine what docs lind does not constitute "significant specified hann to national security" (a 

classic Executive branch function). :( also gives COllrtS the authority to overrule the national 

security interest where the court decms that interest insufficiently compelling--·even when harm 

to the national security has been established. In so doing. the proposed legislation would transfer 

authority to the Judiciary over law enforcement detemlinations reserved by the Constitution to 

the EXtlcutivc branch. 111 the context of conl1dl'lllial investigations and Grand Jury proceedings. 

determinations regarding the national security mterests are best made by members of the 
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The Honorable Lamar S. Smith 

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Executive branch--officials with access to the broad anllY of infoITnatio!1 necessary to protect 

our national security. As Justice Stewart explained in his concurring opinion in the Pentagon 

Papers case, "it is the constitutional duty of the Exccuti\'e~~as a matter of sovereign prerogative 

and not as a matter of law as the courts know law through the promulgation and enforcement of 

Executive regulations. to protect the confidentiality necessary to carry out irs responsibilities in 

the fields of international relations and national defense." .N/tli York Times Co. 1'. UlliU!tl Stales. 

403 U.S. 713. 729·30 (1971) (Stewart. J .• concurring). 

The Constitution vests this function in the Executive branch for good reason; the 

Executive is better situated and hetter equipped than the Judiciary to make determinations 

regarding the Nation's security. Judge Wilkinson outlined the reasons why this is the case in his 

concurring opinion ill Ullill?d States l'. Morison. 844 F.2d 1057 (4th Cir. 1988); 

Evaluation of the govenllnent's (national security] interest. . would require the 

Judiciary to draw conclusions about the operation of the most sophisticated 

electronic systems and the potential effects of their disclosure. An intelligent 

inquiry of this sort would fL'quire access to the most sensitive technical 

infomlation. and background knowledge of the range of intelligence oper.ttiolls 

lhat cannot easily he presented in the single 'case or controversy' to which courts 

are contined. Even with sufficient infonm1tion. courts obviously lack the 

expertise needed for its ~'Valliation. Judges can understand the operatioll of a 

subpoena more readily than that of a satellite. In short. questions of national 

security and foreign affairs are of a kind for which the Judiciary has neither 

aptitude, facilities nor responsibility and which has long been held to belong in 

the domain of political power !lot subject to judicia! intrusion or inquiry. 

hi. at I08:!·!O (Wilkinson . .!.. concuITIng). 

Thus, ill Ollr view, H.R. 2102 impernlissibly divests the Executive branch of its 

eOl1stimlional obligation to ascertain threats to the national security. See H.R. 2102 at § 

1(a)(3)(A\. TIle legislation would also transft'r these duties and obligations to tht' Judiciary. 

which (as demonstraled above) is ill-equipped to make these detemlimltiolls. This 

unconstitutional transfer of power will have serious implications in national security cases. For 

e"~ample. if the Department decided, in an exercise or its prosecutorial discretion. to issue a 

Grand Jury suhpoena to (l member of the media in connection with an investigation mit) the 

unaulhorii'.ed disclosure of classified infonnation to the media. a member of the Judiciary could 

effectively shut down the Gr1l11d Jury's investigation Simply by concluding that upholding the 

subpoena would not be in the "public m[CreSl" See H.R. 2102 at § 2(a)(4). The Department 

cannot support such an unconstitutional transfer of its becutivc branch powers to the judiciary. 

!:LB....c_V.92 Improperly .Limits the Power of Judges and Will Impair the Judicial Process 
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The Honorable Lamar S. Smith 

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While this bill would impermissibly augment the role played by the Judiciary in the 

criminal investigative process--especially in cases involving national security·_·it 

simultaneously threatens to seriously erode the power of Federal judges to control the 

proceedings they oversee and enforce their own orders. By its terms, the bill states that "a 

Federal entity may nol compel a covered person to provide testimony or produce any document 

related to information possessed by such covered person as part of engaging in journalism." 

H.R. 2102 § 2{a). The detinition for a "Federal entity" includes. infer alia, "an entity or 

employt,e of the judicial or executive branch." H.R. 2102 § 4(4). 

Thus, under this definitional scheme. a Federal District Court Judge would have to apply 

H.R. 2102 before determining whether he Of she could enforce a Protective Order, "g;;g" order. 

or the Grand Jury secrecy requirements set out in Federal Rule of Criminal Procedure 6(e). Ie 

for example, a Court le,amcd that sensitive documentary e\idence or Grand Jury testimony had 

been provided to a mporter in violation of the Court's Protective Order. the Judge would be 

required to apply H.R 2102 in a Show Cause hearing. or simllar contempt hearing, in order to 

assess who had violatt:d tht: Court's Order. ff the Judge wished the reporter 10 testify at the 

hearing and disclose the reporter's source. the Court would be required to satisfy the 

requirements of H.R. 2102. Under most scenarios, a violation of a Protective Order or the Gr.!nd 

Jury secrecy rules would not satisfy the § 2(a)(3) requirements that disclosure of the source is 

necessary to "prevent a terrorist attack or sif,'l1ificant speciticd harm to the national security," 

"prevent imminent death or significant bodily harm," or identify a persall who has disclosed n 

trade secret. individually identitiable health infonnation. or nonpublic personal information. In 

cases where such a shnwing cannOI be made. the court will be unable to reqUtre the covered 

person 10 dh'ulge the identity of the source who violated the Court·s ordcr or rules governing 

Grand Jury secrecy. This legislation thus will sevcrely undermine the Fedcral judiciary's 

supervisory powers and its ability to ~'nforce its own Orders lind protect the integrity of its 

I)TOceedings. The Manager's Amendment does nothing to address these concerns. 

H.R. 2102's Definition ofCqvered Persons Remains Problematic 

The Manager's Amendment to H.R. 2102 alters the definition of "covered person," 

restricting the reporter's privilege to "a person who, for financial gain or livelihood, is engaged 

injoumalism" and specificaUy excluding IIny pl."l1lon who is a foreign power or agent of a foreign 

power under the Foreign [ntelligence SUl'veiHance Act and any person who is a designated 

Foreign TerrOlist Organization, H.R. 2102 at § 4(2). Section 4(5) of the bill then broadly 

defines "journalism" to mean "the gathering, preparing, collecting. photographing. rec()rding. 

writing, editing. rcp0l1illg. or publishing of news or information that concerns local. national. or 

imernatiomll events or \1(her matters of public intt:resl for dissemination to the public." As we 

have previously noted, the priVilege provided by the bill goes fllr beyond the limits of any 

constitutional right,. In BraJl:hurg .... Hayes. 408 U.S. 665 (1972), the Supreme COlirt held thnt 

r~"<luiring .Jollmalists to appear and testify before State or Fcderal grdnd juries \.locs nOI abridge 

the freedom of speech and press guaranteed by the First Amendment and that a joumalist'S 
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The Honorable Lamar S. Smith 

Page 12 

agreement to conceal criminal conduct of his news sources, or evidence thereof. does nol give 

rise to any constitutional testimonial privilege with respect thereto. 

While the revised detinition of "covered person" provided by the Manager's Amendment 

seeks [0 address some of the Department's concerns-most notably by removing the media arms 

of officially designated terrorist organi7Jltions from the class of covered persons and by requiring 

that a covered person be "cngage[dJ in journalism for financial gain or livclihood"--thcse 

revisions fail to adequately address the Department's concerns, would create sigmfieant 

obstacles for law enforcement, and r<l,se legitimate constiMional concerns about this legislation. 

As an initial mauer, the provisions of the bill excluding foreign powers or their agents 

and designated terrorist organintions from the definition of "covered person" do not achieve 

their intendt:d purpose for the simple rcason fhat there are many terrorist media who are neither 

"designated terrorist organintions" nor covered entities under the prOVisions of 50 tI.S.c. § 

1801 referenced in the bill. Thus. individuals and entities who are engaged in journalism jor 

financial gain but who are not designated terrorist organizations. foreign powers, or agents of a 

foreign power, will be entitled to the protections accorded by this legislation "no matter how 

closely linked they may be to terrorist or other criminal activity. 

The attempt to limit the scope of the "covered person" definition to those "engagc[d] in 

journalism for financial gain or livelihood" is also inadequate because the Internet enables 

virtually anyone to be "engage[ d] in journalism for financial gain or livelihood." Many blogs or 

wcbsites rim by people who have other johs and livelihoods also generate advertising revenue. 

One need not be a lull-time journalist in order to derive "a financial gain" from engaging in "the 

gathering. preparing, collecting. photographing. recordtng, writing, editing. reporting, or 

publishing of news or information that concerns local. mllional. or international events or other 

matters of public interest"-wh1ch 15 how this bill defines journalism. A simple banner 

advertisement of the sort that appears on liter'lliy thousands ofhlogs worldwide would likely be 

sufficient to establish that the individual [wming the blog was "engagt.'<! in joumalism for 

financial gain" under the tcrnlS oflhe act. 

Moreover, the bill's definition of covered person still includes social networking sites 

[ike MySpace.c<l!l1, which are clearly engaged in the business ofpuhlishing infonnation for 

financial gain. Providing such sites \':itl1 a means to resist subpoenas from law enforcement will 

impede the investigation of serious crimes. For example, many violent street gangs have taken 

to using sociailletworking websites such as MySpace to post infornlation about theiT actiyities_ 

I f a site user werc to post photographs showing gang members celebrating a major drug deal, 

H.R. 2102 could make it difficult fi)f police to obtain infom1ation about the completed crime. 

The user posting the pictures might qualify as a "covered person" by engaging in reporting 

related to local gangs. More importantly. even inhe user posting the pictures is not a "covered 

person." a plain readillg oCtile statute suggests that the sociaillctworking sHe Itself would be 
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rhe Honorable Lamar S. Smith 

Page 13 

considered a "covered person" by publishing that reporting.l' Under either interpretation, law 

enforcement could face serious hurdles in pursuing the lead. 

Specifically. if law enforcement sought to subpoena the \vebsite for information 

regarding the user posti.ng the photographs, this would qualitY as seeking testimony or 

docllments that could reveal the identity of a source of infonnation. Pursuant to proposed 

§ 2(a)(3)(B), law enforcement \\ould have to show that disclosure was necessary to prcvent 

imminent death or significant bodily hann, a standard that probably CQuld not be mel···even w1th 

evidence of a scrious crime in hand" without specific evidence of future violent crimes. 

Moreover. even if law enforcement could meet that standard, the proceedings necessary to do so 

would impermissibly impede and inhibit the investigation. Similarly, certain members-only web 

sites and discussion boards allow subscribers to post statements in which users admit to past acts 

of pedophilia and state opinions that such behavior should be legali1'ed. IfH.R. 2102 were 

enacted. such web sites would probably constitute "publishers"-·especially where users ofthe 

website pay a fee for membership privileges·--and law enforcement could not subpoena the 

provider to identify thc child molesters unless therc were some .pecitk evidence that they were 

continuing to sexually abuse children. 

The range of scenarios outlined above could arise in connection with IIny material posted 

on any website. blog. community forum. or similar medium. far removed from traditional fOnllS 

of journalism. For example. an anonymous blogger's threatening remarks about a Federal 

judge's .ruling. accompanied by the judge's home address. but without a specific threat might fail 

to reach the level of "imminent" harm. Mon-'()\'er, a posting on a news website's interactive 

readers' lo.rum threatening to commit a crime that falls short or"significant bodily haml" would 

not meet the exceptionally high standard that wO\llil allow law enforcement (0 compel production 

of information from the new, organization. 

Even assuming, however, that the Manager's Amendment has successfully restricted the 

definition of "covered person" to professional journalists only and il is not at all clear that it 

has done so--the bill presents an entirely different problem, For if the bill does not extend it~ 

protections to bloggers <lnti MySpace users. those same bloggers and MySpace users--when 

faced with a government subpoena to provide infomlation or identify a source-will almost 

certllinly contend that excluding them rimn hill's definition of "covered persons" vioilltes their 

~ MySpacc and ,it~'S like it would also qualify as "commUnic:llions service prol-iders" und~r 

Secti"n 4 ill of the hill. Thus. 10 addJt!OnlO possibly falling mto the definition "f"'covered person,:' 

these types ofwcbsiles would nol be ,ubJect to compelled disdosurc of information t1bout "busim;" 

tmnsaclions" between the Wes and the mdividual users as "covered PI-'I'Sons' {WIthout law enforcement 

overcoming signiiicanl legal hurdles}. Because the ternl "husmess transaction" is not defined in the 

proposed hill. a court might interprelll to cover any siruallon in which II u,er pays for an ace,mn!. such as 

purch;uing ;1 domam n~.une or creatmg a webSite, 
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The HOllorable Lamar S. Smith 

Page 14 

rights under the First Amendment. Should this bill become law. il is a virtual certainty that slich 

claims will be brought, and at leasl some of them may be deemed meritorious. As a result, we 

will once again be f;~ced with a law that provides a very rohusl-··and in some cases, impossibleto-overcome---privilege to an extremely broad class of persons. to the detriment of both effective 

law enforcement and, ultimately, the safety of the American public. 

Defil1ing who is entitled to invoke a "reporter's privilege" is a very difticull, if nOt 

intractablc, prohlem. If thc definition is hroadly worded. it 1'\;111 inevitably he over-inclusive, 

sweeping within its protection hostile foreign entities as well as other criminal enterprises whose 

ability to invoke the privilege would frusttate law enforcement If. however, the definition is 

more narrowly tailored, it would be open to legitimate challenge on First Amendment grounds 

from individuals or entities denied the privilege. As we stated in our June 20. 2006 views letter. 

"[w}e question whether <l definition that rCI.'Onciles these conflicting considerations is possible as 

<I practical matter," 

Unifoml Standards Pumase 

Some proponcllts of H.R. 2102 have suggested that the bill is little more than a 

codifkation of the Department's own gUidelines, That view is without loundation, Tht: 

Department's guidelines preserve thc constitutional prerogatives of thc Exccutive hranch \vllh 

respect to key decisions regarding, for example. the kind of e,idence that is presented in Grand 

Jury investigations and what constitutes haml to the national security. The proposed legislation, 

hy contrast, would shift ultimate authority over these and other quintessentially prosecutorial 

decisions to the Judiciary. FUlthennore, the proposed legislation would replace the inherent 

flexihility or the Departmcnt's guidelines, which can be adapted as circumstances require -- an 

especially valuable attribute in a time of War with a framework that is at once more rigid (by 

virtue of being codified by statute) and less predictable (by virtue of being subject to the 

interpretations of many different judges. a<; opposed 10 a single Department with n clear track 

record ofcarcfutly balancing the competing interests). 

Finally, proponents of H,R. 2: 02 have asserted that one of the bill's primary purposes is 

to eliminate divergent application of a reporters' privilege by providing a unifornl Fe-deral 

standard. This contention is without merit. Federal legislation stich us H.R. 1102 w()tild merely 

provide a non-constitutional statlllOf,) standard. or nOOf. tllil( must be satisfied [or the 

(lovcmmcnt, a crimina! defendant, or partics in civil litigation to obtain testimony or evidence 

lh,lt is subject 10 an alleged Journalist's privilege m Fc(it:ral cOlin. The bill does lIor ehmlllate or 

prevent thc differing cOIIsliflttional interpretations of the scope and nature of a Journalist's 

privilege in dilTeren! circuits, particularly in civil cases, which may impose limitations above and 

beyond the bill's proposed statutory minimum standards. Thus. rather than simplifying the legal 

standards that must he overcome to obtain information or evidence subjected to a claim of 

reporter's privilege, H.R. 2lO2 wouk C'ompound and complicatc them hy imposing a complex. 
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The Honorable Lamar S. Smith 

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subjective statutory standard on top of the \'anous constitutional interpretatiol1s that have ht'en 

promulgated in various cirl'uit5. 

Thank you fI.)f the opportunity to present our views. The Office of Management and 

Budget has ad\ised us that from the perspective of the Administration's pro!,'flill1. there is no 

objection to submission oflhis letter. 

cc: The Honorahle 10hn Conyers 

Chnimlan 

The Honorable !'>'like Pence 

~1ember 

The Honorable Rick Boucher 

Member 

Sincerely. 

fi~_(~L~ Brian A. Bem:l.k(1~ Principill Deputy Assistant Attomey General 
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Appendix XII 
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®ffire of tue %lttornep ~eneral 

'Wasptngton. iD.~. 20530 

The Honorable Patrick J. Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

Dear Chairman Leahy: 

July 29, 2013 

This letter presents the views of the Department of Justice on the substitute amendment 

(ALB13659) to S.987, the "Free Flow oflnformation Act of2013." The Department is pleased that 

the Senate Judiciary Committee will be considering this bill, which strikes a careful balance between 

safeguarding the freedom of the press and ensuring our nation's security and the safety of the 

American people. The Department supports the passage of this media shield legislation, and will 

continue to work with leaders from both parties to achieve this goal. 

Over the past few months, the Department has engaged in a rigorous review of its own 

internal policies governing investigations and other law enforcement matters that involve journalists, 

including extensive engagement with news media organizations, First Amendment groups, media 

industry organi7.ations, and academic experts. As a result of this process, the Department announced 

that it would make substantial revisions to its policies to strengthen protections for members of the 

news media, while maintaining the Department's ability to protect the American people by pursuing 

those who violate their oaths through unlawful disclosures of infonnation. 

Notwithstanding the significant modifications the Department intends to make to its policies 

with respect to investigations involving the news media, certain measures will require legislative 

action. As provided in the substitute amendment to S. 987, for example, a media shield law could 

establish a mechanism for advance judicial review of investigative tools such as subpoenas when 

they involve the news media. The proposed bill establishes an important procedural framework for 

such judicial review, including by providing for expedited judicial determinations and under seal or 

ex parte review for good cause. In addition, the definition of ' 'covered person" appropriately 

identifies individuals and entities engaged in gathering and disseminating public news or similar 

infonnation. 

The Department reiterates its support for this bill, and looks forward to continuing to work 

with lawmakers to achieve its passage. 
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Appendix XIII 
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The Honorable Patrick 1. Lcahy 

Chainnan 

Committee on the Judiciary 

United States Senate 

Washington, D.C. 20510 

Dear Chainnan Leahy: 

NOV 042009 

This letter presents the views of the Administration on the Specter-Schumer substitute 

amendment (HEN09B24) to S. 448, the "Free Flow oflnfonnation Act of 2009." This 

legislation is the result of a series of productive and cooperative discussions with the sponsors 

and supporters of the legislation. The Administration supports this substitute amcndment and 

urges that no further amendments be adopted. to this carefully crafted compromise. 

We appreciate the critical role that the media plays in a free and democratic society. This 

legislation provides robust judicial protection for journalists' confidential sources, while also 

enabling the Government to take measures necessary to protect national security and enforce our 

criminal laws. 

There are a number of changes from previous versions of this legislation that address 

concerns that the Administration has expressed. 

In criminal investigations and prosecutions where the Government seeks to compel 

disclosure, Section 2 ofS. 448 as introduced provided that a court would engage in an openended analysis weighing the interest in disclosure against the free flow of information. The 

Specter-Schumer substitute eliminates this open-ended analysis, and replaces it with a more 

balanced and appropriate process. First. it requires the Attorney Geneml to eertify that the 

request for compelled disclosure was made in a manner consistent with the guidelines in the U.S. 

Attorney's Manual (USAM). Second, reflecting the fact that the USAM already provides 

significantprotcctions for the news media from subpoenas that might impair the newsgathering 

funetion, the Specter-Schumer substitute provides that when the court balances thc interest in 

compelling disclosure against the interest in the free flow of information, the journalist bears the 

burden to establish by clear aJld convincing evidence that disclosure would be contrary to the 

public interest. (In addition to these two requirements, the substitute amendment retains a 

number of other elements of Section 2 of S. 448, including the requirements that the Government 

exhaust all reasonable alternative sources of the protected information, show there are reasonable 

grounds to believe a crime has occurred, and demonstrate reasonable grounds for believing that 

the information is essential to the investigation or proseeution.) 
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-2-

Moreover, the Specter-Schumer amendment provides appropriate protection for national 

security. If disclosure of the information in question would materially assist the Government in 

preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant 

and articulable harm to national security, the Specter-Schumer amendment provides that the 

balancing test contained in Section 2 of the legislation would not apply and the court would be 

expected to compel production of the inform~on. The Administration supports the provision in 

the substitute amendment giving courts the, pOwer to determine whether the harm at issue rises to 

the level of an act of terrorism or other significant and articulable harm to national security, and 

whether the infortnatlon sought by the Government would in fact materially assist in preventing, 

mitigating, or identifying those responsible for such harm, while giving appropriate deference to 

specific factual submissions by the Government. 

This same basic approach would apply in criminal investigations and prosecutions of 

allegedly unlawful disclosure of properly classified information, where the Government is 

seeking information to prevent or mitigate an act of terrorism or other significant and articulable 

harm to national security. lfthe Government establishes that the information it seeks would 

materially assist in preventing ot mitigating such harm, under the substitute amendment it will 

face the same conditions .and court review as.in other natiOI)Sl security cases. In other leak cases, 

the court would have an additional role, employing the balancing test described above for 

criminal investigations and prosecutions generally. 

We also appreciate that the substitute· addresses a number of other Administration 

concerns, including: 

• permitting the Government to make its submissions in camera and ex parte where 

necessary; 

• excluding from the bill's coverage authorities granted under the Foreign Intelligence 

Surveillance Act; 

• eliminating a provision that contemplates judicial review of individual classification 

decisions; and 

• not requiring the Government to establish that the allegedly unlawful disclosure in 

question was made by someone who had "authotized access to such information." 

Finally, the definition of a "covered person" protected by this legislation has been much 

improved. First, the intent and actions necessary for a person to meet this definition are now 

clearly specified. Second, the definition now includes several important exclusions so that, for 

example, someone who is or is reasonably believed to be committing or attempting to commit 

the crime of terrorism or providing material $UPport to a terrorist organization is not a "covered 

person." At the same time, this definition does not require a covered person to be a salaried 

employee of, or independent contractor to, a media organization. Over time, we expect that the 

courts will be able to distinguish persons entitled to the protections afforded by this statute from 

those who are not. 
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In conclusion, this legislation is a significant step forward from previous versions. The 

Administration supports this legislation, and the Offic.e of Management and Budget has advised 

us that thcre is no objection to this letter fwm the perspective of the Administration's program. 

Dennis C. Blair 

Director ofNarional Intelligence 

cc: The Honorable Jeff Sessions 

Sincerely, 

Eric H. Holder, JT. 

Attorney General 
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Appendix XIV 
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JAMES E. MCPHERSON Executive Director 

Via Facsimile 

NA DONAL ASSOCIATION OF ATTORNEYS GENERAL 

2030 M Street, 8" Floor 

WASHINGTON. D.C. 20036 Phone (202) 326·6259 

Fax(202)3l1.1427 

http://v.ww.naag.org 

June 23, 2008 

PRESIDENT 

PATRICK LYNCH Attorney General of Rhode {stand 

PRESIDENT· ELECT JON BRUNING Attorney General ojNebraJka 

VICE PRESIDENT ROY COOPER Attorney General afNorth Carolina 

IMMEDIATE PAST PRESIDENT LAWRENCE WASDEN Attorney General of Idaho 

The Honorable Harry Reid 

Majority Leader 

The Honorable Mitch McConnell 

Minority Leader 

United States Senate 

S-221 Capitol Building 

Washington, DC 20510 

Dear Senators Reid and McConnell: 

United States Senate 

S-230 Capitol Building 

Washington, DC 20510 

We, the undersigned Attorneys General, write to express our support for the Free 

Flow of Information Act (S. 2035). The proposed legislation would recognize a qualified 

reporter's privilege, bringing federal law in line with the laws of 49 states and the District of 

Columbia, which already recognize such a privilege. The Senate Judiciary Committee 

reported S. 2035 favorably on October 4, 2007, by a vote of 15-4. The House passed a 

similar reporter's privilege bill, H.R. 2102, by a vote of 398-21. 

Justice Brandeis famously referred to the important function the states perform in our 

federal system as laboratories for democracy, testing policy innovations. See New State Ice 

Co. v. Liebmann. 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Reporter shield laws, 

which have been adopted - through either legislation or judicial decision - by every state but 

one, I must now be viewed as a policy experiment that has been thoroughly validated through 

successful implementation at the state level. 

I Wyoming has yet to address the issue. 
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The reporter's privilege that is recognized by the laws of 50 United States jurisdictions 

rests on a detennination that an infonned citizenry and the preservation of news infonnation 

sources are vitally important to a free society. By affording some degree of protection 

against the compelJed disclosure of a reporter's confidential sources, these state laws advance 

a public policy favoring the free flow of infonnation to the public. An overwhelming 

consensus has developed among the states in support ofthis public policy, and United States 

Justice Department guidelines, on which the current legislation is largely modeled, likewise 

recognize the interest in protecting the news media from civil or criminal compulsory process 

that might impair the news gathering function. Nevertheless, the federal courts are divided 

on the existence and scope of a reporter's privilege, producing inconsistency and uncertainty 

for reporters and the confidential sources upon whom they rely. 

By exposing confidences protected under state law to discovery in federal courts, the 

lack of a corresponding federal reporter's privilege law frustrates the purposes of the staterecognized privileges and undercuts the benefit to the public that the states have sought to 

bestow through their shield laws. As the states' chieflegal officers, Attorneys General have 

had significant experience with the operation of these state-law privileges; that experience 

demonstrates that recognition of such a privilege does not unduly impair the task of law 

enforcement or unnecessarily interfere with the truth-seeking function of the courts. The 

sponsors of S. 2035 have sensibly sought to strike a reasonable balance between these 

important interests, as the states have done, and we are confident that the legitimate concerns 

for national security and law enforcement can be addressed in the court procedures for 

evaluating a claim of privilege. 

We urge you to support the Free Flow ofInfonnation Act and to enact legislation 

harmonizing federal law with state law on this important subject. 

Thank you for your consideration of our views. 

Sincerely, 

Douglas Gansler Rob McKenna 

Attorney General of Maryland Attorney General of Washington 

Terry 

~~~~ 

Goddard 

#~ Dustin McDaniel 

Attorney General of Arizona Attorney General of Arkansas 
141 


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Edmund G. Brown Jr. 

Attorney General of California 

;/Lf~ Richard Blumenthal 

Attorney General of Connecticut 

Bill McCollum 

Attorney General of Florida 

de.qWIJ-4~~ 

Alicia G. Limtiaco 

Attorney Genera! of Guam 

Lawrence Wasden 

Attorney General of Idaho 

/1. "/Y> ~J~ /~ Tom Miller 

q;~ Jack Conway 

Attorney General of Kentucky 

G. 

~~~ Steven Rowe 

Attorney General of Maine 

John Suthers 

Attorney General of Colorado 

/~/~'JT:-

Joseph R. Biden III 

Attorney General of Delaware 

~[%~ 

Thurbert E. Baker 

Attorney General of Georgia 

Mark J. Bennett TJiiiJJji 

Lisa Madigan 

Attorney General of Illinois 

~-g Stephen N. Six 

Attorney General of Kansas 

James D. "Buddy" Caldwell 

Attorney General of Louisiana 

~~~ Michael Cox 

Attorney General of Michigan 

~~~ 
142 


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Lori Swanson 

Attorney General of Minnesota 

Jeremiah 

~ Nixon 

Attorney General of Missouri 

Y~/]~ Jon Bruning 

Attorney General of Nebraska 

%4(J~ 

Jim Hood 

Attorney General of Mississippi 

$~#~ 

Mike McGrath 

Attorney General of Montana 

Catherine Cortez Masto 

Attorney General of Nevada 

Kelly A. Ayotte Gary 

~0 King 

Attorney General of New Hampshire Attorney General of New Mexico 

Wayne Stenehjem 

Attorney General of North Dakota 

W. A. Drew Edmondson 

Attorney General of Oklahoma 

~d~ Tom Corbett 

Attorney General of Pennsylvania 

Roy Cooper 

Attorney General of North Carolina 

Nancy Hardin Rogers 

Attorney General of Ohio 

Hardy 

I~ 

Myers 

Attorney General of Oregon 

~/37 ~ffi~ Henry McMaster 

Attorney General of South Carolina 
143 


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Lawrence E. Long 

Attorney General of South Dakota 

Mark Shurtleff 

Attorney General of Utah 

f2--:~-/' 

Darrell V. McGraw Jr. 

Attorney General of West Virginia 

Cc: The Honorable Arlen Specter 

The Honorable Charles Schumer 

The Honorable Patrick Leahy 

The Honorable Lindsey Graham 

The Honorable Richard Lugar 

The Honorable Christopher Dodd 

Robert E. Cooper, Jr. 

Attorney 

~ 

General of Tennessee 

William H. Sorrell 

Attorney General of Vermont 

James McPherson, Executive Director, NAAG 

Blair Tinkle, General Counsel and Congressional Liaison, NAAG 
144 

IX. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED

The bill makes no changes to existing Federal law. 

Æ 


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