II 

Calendar No. 238 

113TH CONGRESS 

1ST SESSION S. 987 

[Report No. 113–118] 

To maintain the free flow of information to the public by providing conditions 

for the federally compelled disclosure of information by certain persons 

connected with the news media. 

IN THE SENATE OF THE UNITED STATES 

MAY 16, 2013 

Mr. SCHUMER (for himself, Mr. GRAHAM, Mr. TESTER, Ms. KLOBUCHAR, Mr. 

HARKIN, Mr. BENNET, Mrs. MURRAY, Mr. UDALL of New Mexico, Mr. 

BAUCUS, Ms. CANTWELL, Mrs. BOXER, Mr. ISAKSON, Ms. BALDWIN, Mr. 

BLUMENTHAL, Mr. BLUNT, Mrs. GILLIBRAND, Mrs. MCCASKILL, Mr. 

COONS, Ms. HIRONO, and Mr. LEAHY) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

NOVEMBER 6, 2013 

Reported by Mr. LEAHY, with an amendment 

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

A BILL 

To maintain the free flow of information to the public by 

providing conditions for the federally compelled disclosure 

of information by certain persons connected with the 

news media. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Free Flow of Informa3 tion Act of 2013’’. 

4 SEC. 2. COMPELLED DISCLOSURE FROM COVERED PER5 SONS. 

6 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 

7 any proceeding or in connection with any issue arising 

8 under Federal law, a Federal entity may not compel a cov9 ered person to comply with a subpoena, court order, or 

10 other compulsory legal process seeking to compel the dis11 closure of protected information, unless a Federal court 

12 in the jurisdiction where the subpoena, court order, or 

13 other compulsory legal process has been or would be issued 

14 determines, after providing notice and an opportunity to 

15 be heard to such covered person— 

16 (1) that the party seeking to compel disclosure 

17 of the protected information has exhausted all rea18 sonable alternative sources (other than a covered 

19 person) of the protected information; and 

20 (2) that— 

21 (A) in a criminal investigation or prosecu22 tion— 

23 (i) if the party seeking to compel dis24 closure is the Federal Government, based 

25 on public information or information ob26 tained from a source other than the covVerDate Mar 15 2010 21:07 Nov 06, 2013 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S987.RS S987

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1 ered person, there are reasonable grounds 

2 to believe that a crime has occurred; 

3 (ii) based on public information or in4 formation obtained from a source other 

5 than the covered person, there are reason6 able grounds to believe that the protected 

7 information sought is essential to the in8 vestigation or prosecution or to the defense 

9 against the prosecution; 

10 (iii) the Attorney General certifies 

11 that the decision to request compelled dis12 closure was made in a manner consistent 

13 with section 50.10 of title 28, Code of Fed14 eral Regulations, if compelled disclosure is 

15 sought by a member of the Department of 

16 Justice in circumstances governed by sec17 tion 50.10 of title 28, Code of Federal 

18 Regulations; and 

19 (iv) the covered person has not estab20 lished by clear and convincing evidence 

21 that disclosure of the protected informa22 tion would be contrary to the public inter23 est, taking into account both the public in24 terest in gathering and disseminating the 

25 information or news at issue and maintainVerDate Mar 15 2010 21:07 Nov 06, 2013 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S987.RS S987

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1 ing the free flow of information and the 

2 public interest in compelling disclosure (in3 cluding the extent of any harm to national 

4 security); or 

5 (B) in a matter other than a criminal in6 vestigation or prosecution, based on public in7 formation or information obtained from a 

8 source other than the covered person— 

9 (i) the protected information sought is 

10 essential to the resolution of the matter; 

11 and 

12 (ii) the party seeking to compel disclo13 sure of the protected information has es14 tablished that the interest in compelling 

15 disclosure clearly outweighs the public in16 terest in gathering and disseminating the 

17 information or news at issue and maintain18 ing the free flow of information. 

19 (b) LIMITATIONS ON CONTENT OF INFORMATION.— 

20 A subpoena, court order, or other compulsory legal process 

21 seeking to compel the disclosure of protected information 

22 under subsection (a) shall, to the extent possible, be nar23 rowly tailored in purpose, subject matter, and period of 

24 time covered so as to avoid compelling disclosure of pe25 ripheral, nonessential, or speculative information. 


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1 SEC. 3. EXCEPTION RELATING TO CRIMINAL CONDUCT. 

2 (a) IN GENERAL.—Section 2 shall not apply to any 

3 information, record, document, or item obtained as the re4 sult of the eyewitness observations of, or obtained during 

5 the course of, alleged criminal conduct by the covered per6 son, including any physical evidence or visual or audio re7 cording of the conduct. 

8 (b) EXCEPTION.—This section shall not apply, and, 

9 subject to sections 4 and 5, section 2 shall apply, if the 

10 alleged criminal conduct is the act of communicating the 

11 documents or information at issue. 

12 SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, 

13 SUBSTANTIAL BODILY INJURY, SEX OF14 FENSES AGAINST MINORS, OR INCAPACITA15 TION OR DESTRUCTION OF CRITICAL INFRA16 STRUCTURE. 

17 Section 2 shall not apply to any protected information 

18 that is reasonably necessary to stop, prevent, or mitigate 

19 a specific case of— 

20 (1) death; 

21 (2) kidnapping; 

22 (3) substantial bodily harm; 

23 (4) conduct that constitutes a criminal offense 

24 that is a specified offense against a minor (as those 

25 terms are defined in section 111 of the Adam Walsh 

26 Child Protection and Safety Act of 2006 (42 U.S.C. 


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1 16911)), or an attempt or conspiracy to commit 

2 such a criminal offense; or 

3 (5) incapacitation or destruction of critical in4 frastructure (as defined in section 1016(e) of the 

5 USA PATRIOT Act (42 U.S.C. 5195c(e))). 

6 SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR 

7 HARM TO THE NATIONAL SECURITY. 

8 (a) IN GENERAL.—Section 2 shall not apply to any 

9 protected information if— 

10 (1) the party seeking to compel disclosure is the 

11 Federal Government; and 

12 (2)(A) in a criminal investigation or prosecution 

13 of the allegedly unlawful disclosure of properly clas14 sified information, the court finds by a preponder15 ance of the evidence that the protected information 

16 for which compelled disclosure is sought would mate17 rially assist the Federal Government in preventing 

18 or mitigating— 

19 (i) an act of terrorism; or 

20 (ii) other acts that are reasonably 

21 likely to cause significant and articulable 

22 harm to national security; or 

23 (B) in any other criminal investigation or pros24 ecution, the court finds by a preponderance of the 

25 evidence that the protected information for which 


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1 compelled disclosure is sought would materially as2 sist the Federal Government in preventing, miti3 gating, or identifying the perpetrator of— 

4 (i) an act of terrorism; or 

5 (ii) other acts that have caused or are rea6 sonably likely to cause significant and articula7 ble harm to national security. 

8 (b) DEFERENCE.—In assessing the existence or ex9 tent of the harm described in subsection (a), a Federal 

10 court shall give appropriate deference to a specific factual 

11 showing submitted to the court by the head of any execu12 tive branch agency or department concerned. 

13 (c) RELATIONSHIP TO SECTION 2.—Subsection (a) 

14 shall not apply, and, subject to sections 3 and 4, section 

15 2 shall apply, to any criminal investigation or prosecution 

16 of the allegedly unlawful disclosure of properly classified 

17 information other than one in which the protected infor18 mation is sought by the Federal Government to prevent 

19 or mitigate the harm specified in subsection (a)(2)(A). In 

20 considering the extent of any harm to national security 

21 when applying section 2 to such cases, a Federal court 

22 shall give appropriate deference to any specific factual 

23 showing submitted to the court by the head of any execu24 tive branch agency or department concerned. 


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1 (d) SUBSEQUENT UNLAWFUL DISCLOSURE.—The 

2 potential for a subsequent unlawful disclosure of informa3 tion by the source sought to be identified shall not, by 

4 itself and without any showing of additional facts beyond 

5 such potential disclosure, be sufficient to establish that 

6 compelled disclosure of the protected information would 

7 materially assist the Federal Government in preventing or 

8 mitigating— 

9 (1) an act of terrorism; or 

10 (2) other acts that are reasonably likely to 

11 cause significant and articulable harm to national 

12 security. 

13 SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS 

14 SERVICE PROVIDERS. 

15 (a) CONDITIONS FOR COMPELLED DISCLOSURE.— 

16 (1) IN GENERAL.—Except as provided in para17 graph (2), if any document or other information 

18 from the account of a person who is known to be, 

19 or reasonably likely to be, a covered person is sought 

20 from a communications service provider, sections 2 

21 through 5 shall apply in the same manner that such 

22 sections apply to any document or other information 

23 sought from a covered person. 

24 (2) EXCEPTION.—If any document or other in25 formation from the account of a person who is 


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1 known to be, or reasonably likely to be, a covered 

2 person is sought from a communications service pro3 vider under section 2709 of title 18, United States 

4 Code, the provisions of sections 2 through 5 gov5 erning criminal investigations and prosecutions shall 

6 apply in the same manner that such sections apply 

7 to any document or other information sought from 

8 a covered person in the course of a criminal inves9 tigation or prosecution, except that clauses (i) and 

10 (iii) of section 2(a)(2)(A) and the phrase ‘‘particu11 larly with reference to directly establishing guilt or 

12 innocence’’ in section 2(a)(2)(A)(ii) shall not apply. 

13 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV14 ERED PERSONS.—A Federal court may compel the disclo15 sure of a document or other information described in this 

16 section only after the covered person from whose account 

17 the document or other information is sought has been 

18 given— 

19 (1) notice from the party seeking the document 

20 or other information through a subpoena or other 

21 compulsory request, not later than the time at which 

22 such subpoena or request is issued to the commu23 nications service provider; and 


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

2 before compelling testimony or the disclosure of a 

3 document. 

4 (c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 

5 under subsection (b)(1) may be delayed for not more than 

6 45 days if the Federal court involved determines by clear 

7 and convincing evidence that such notice would pose a sub8 stantial threat to the integrity of a criminal investigation, 

9 a national security investigation, or intelligence gathering, 

10 or that exigent circumstances exist. This period may be 

11 extended by the court for an additional period of not more 

12 than 45 days each time the court makes such a determina13 tion. 

14 (d) NOTICE TO COMMUNICATIONS SERVICE PRO15 VIDER.—In all cases in which notice is required to be pro16 vided to the covered person under this section, a copy of 

17 such notice shall be provided simultaneously to the com18 munications service provider from whom disclosure is 

19 sought. Once it has received such notice, the communica20 tions service provider shall not comply with the request 

21 for disclosure unless and until disclosure is either ordered 

22 by the court or authorized in writing by the covered per23 son. 


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1 SEC. 7. SOURCES AND WORK PRODUCT PRODUCED WITH2 OUT PROMISE OR AGREEMENT OF CON3 FIDENTIALITY. 

4 Nothing in this Act shall supersede, dilute, or pre5 clude any law or court decision compelling or not compel6 ling disclosure by a covered person or communications 

7 service provider of— 

8 (1) information identifying a source who pro9 vided information without a promise or agreement of 

10 confidentiality made by the covered person as part 

11 of engaging in journalism; or 

12 (2) records, other information, or contents of a 

13 communication obtained without a promise or agree14 ment that such records, other information, or con15 tents of a communication would be confidential. 

16 SEC. 8. PROCEDURES FOR REVIEW AND APPEAL. 

17 (a) CONDITIONS FOR EX PARTE REVIEW OR SUBMIS18 SIONS UNDER SEAL.—With regard to any determination 

19 made by a Federal court under this Act, upon a showing 

20 of good cause, that Federal court may receive and consider 

21 submissions from the parties in camera or under seal, and 

22 if the court determines it is necessary, ex parte. 

23 (b) CONTEMPT OF COURT.—With regard to any de24 termination made by a Federal court under this Act, a 

25 Federal court may find a covered person to be in civil or 

26 criminal contempt if the covered person fails to comply 


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1 with an order of a Federal court compelling disclosure of 

2 protected information. 

3 (c) TO PROVIDE FOR TIMELY DETERMINATION.— 

4 With regard to any determination to be made by a Federal 

5 court under this Act, that Federal court, to the extent 

6 practicable, shall make that determination not later than 

7 30 days after the date of receiving a motion requesting 

8 the court make that determination. 

9 (d) EXPEDITED APPEAL PROCESS.— 

10 (1) IN GENERAL.—The courts of appeal shall 

11 have jurisdiction— 

12 (A) of appeals by a Federal entity or cov13 ered person of an interlocutory order of a Fed14 eral court under this Act; and 

15 (B) in an appeal of a final decision of a 

16 Federal court by a Federal entity or covered 

17 person, to review any determination of a Fed18 eral court under this Act. 

19 (2) EXPEDITION OF APPEALS.—It shall be the 

20 duty of a Federal court to which an appeal is made 

21 under this subsection to advance on the docket and 

22 to expedite to the greatest possible extent the dis23 position of that appeal. 

24 SEC. 9. RULE OF CONSTRUCTION. 

25 Nothing in this Act may be construed to— 


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1 (1) preempt any law or claim relating to defa2 mation, slander, or libel; 

3 (2) modify the requirements of section 552a of 

4 title 5, United States Code, or Federal laws or rules 

5 relating to grand jury secrecy (except that this Act 

6 shall apply in any proceeding and in connection with 

7 any issue arising under that section or the Federal 

8 laws or rules relating to grand jury secrecy); 

9 (3) create new obligations, or affect or modify 

10 the authorities or obligations of a Federal entity 

11 with respect to the acquisition or dissemination of 

12 information pursuant to the Foreign Intelligence 

13 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); 

14 or 

15 (4) preclude voluntary disclosure of information 

16 to a Federal entity in a situation that is not gov17 erned by this Act. 

18 SEC. 10. AUDIT. 

19 (a) IN GENERAL.—The Inspector General of the De20 partment of Justice shall perform a comprehensive audit 

21 of the use of this Act during the period beginning on the 

22 date of enactment of this Act and ending on December 

23 31, 2016. The audit shall include an examination of each 

24 instance in which a court failed to compel the disclosure 

25 of protected information under this Act, and whether this 


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1 Act has created any procedural impediments that have had 

2 a detrimental operational impact on the activities of the 

3 Federal Bureau of Investigation. 

4 (b) REPORT.—Not later than June 30, 2017, the In5 spector General of the Department of Justice shall submit 

6 to the Committee on the Judiciary and the Select Com7 mittee on Intelligence of the Senate and the Committee 

8 on the Judiciary and the Permanent Select Committee on 

9 Intelligence of the House of Representatives a report con10 taining the results of the audit conducted under subsection 

11 (a). 

12 (c) REVIEW.—Not later than 30 days before the sub13 mission of the report under subsection (b), the Inspector 

14 General of the Department of Justice shall provide the 

15 report to the Attorney General and the Director of Na16 tional Intelligence. The Attorney General or the Director 

17 of National Intelligence may provide such comments to be 

18 included in the report submitted under subsection (b) as 

19 the Attorney General or the Director of National Intel20 ligence may consider necessary. 

21 (d) FORM.—The report submitted under subsection 

22 (b) and any comments included under subsection (c) shall 

23 be in unclassified form, but may include a classified annex. 

24 SEC. 11. DEFINITIONS. 

25 In this Act: 


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1 (1) COMMUNICATIONS SERVICE PROVIDER.— 

2 The term ‘‘communications service provider’’— 

3 (A) means any person that transmits infor4 mation of the customer’s choosing by electronic 

5 means; and 

6 (B) includes a telecommunications carrier, 

7 an information service provider, an interactive 

8 computer service provider, and an information 

9 content provider (as such terms are defined in 

10 section 3 or 230 of the Communications Act of 

11 1934 (47 U.S.C. 153 and 230)). 

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

13 person’’— 

14 (A) means a person who— 

15 (i) with the primary intent to inves16 tigate events and procure material in order 

17 to disseminate to the public news or infor18 mation concerning local, national, or inter19 national events or other matters of public 

20 interest, regularly gathers, prepares, col21 lects, photographs, records, writes, edits, 

22 reports or publishes on such matters by— 

23 (I) conducting interviews; 

24 (II) making direct observation of 

25 events; or 


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1 (III) collecting, reviewing, or 

2 analyzing original writings, state3 ments, communications, reports, 

4 memoranda, records, transcripts, doc5 uments, photographs, recordings, 

6 tapes, materials, data, or other infor7 mation whether in paper, electronic, 

8 or other form; 

9 (ii) has such intent at the inception of 

10 the process of gathering the news or infor11 mation sought; and 

12 (iii) obtains the news or information 

13 sought in order to disseminate the news or 

14 information by means of print (including 

15 newspapers, books, wire services, news 

16 agencies, or magazines), broadcasting (in17 cluding dissemination through networks, 

18 cable, satellite carriers, broadcast stations, 

19 or a channel or programming service for 

20 any such media), mechanical, photo21 graphic, electronic, or other means; 

22 (B) includes a supervisor, employer, parent 

23 company, subsidiary, or affiliate of a person de24 scribed in subparagraph (A); and 


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1 (C) does not include any person who is or 

2 is reasonably likely to be— 

3 (i) a foreign power or an agent of a 

4 foreign power, as those terms are defined 

5 in section 101 of the Foreign Intelligence 

6 Surveillance Act of 1978 (50 U.S.C. 

7 1801); 

8 (ii) a member or affiliate of a foreign 

9 terrorist organization designated under 

10 section 219(a) of the Immigration and Na11 tionality Act (8 U.S.C. 1189(a)); 

12 (iii) designated as a Specially Des13 ignated Global Terrorist by the Depart14 ment of the Treasury under Executive 

15 Order No. 13224 (50 U.S.C. 1701); 

16 (iv) a specially designated terrorist, as 

17 that term is defined in section 595.311 of 

18 title 31, Code of Federal Regulations (or 

19 any successor thereto); 

20 (v) a terrorist organization, as that 

21 term is defined in section 

22 212(a)(3)(B)(vi)(II) of the Immigration 

23 and Nationality Act (8 U.S.C. 

24 1182(a)(3)(B)(vi)(II)); 


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1 (vi) committing or attempting to com2 mit the crime of terrorism, as that offense 

3 is defined in section 2331(5) or 

4 2332b(g)(5) of title 18, United States 

5 Code; 

6 (vii) committing or attempting the 

7 crime of providing material support, as 

8 that term is defined in section 2339A(b)(1) 

9 of title 18, United States Code, to a ter10 rorist organization; or 

11 (viii) aiding, abetting, or conspiring in 

12 illegal activity with a person or organiza13 tion defined in clauses (i) through (vii). 

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

15 writings, recordings, and photographs, as those 

16 terms are defined by rule 1001 of the Federal Rules 

17 of Evidence (28 U.S.C. App.). 

18 (4) FEDERAL ENTITY.—The term ‘‘Federal en19 tity’’ means an entity or employee of the judicial or 

20 executive branch or an administrative agency of the 

21 Federal Government with the power to issue a sub22 poena or issue other compulsory process. 

23 (5) PROPERLY CLASSIFIED INFORMATION.— 

24 The term ‘‘properly classified information’’ means 

25 information that is classified in accordance with any 


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1 applicable Executive orders, statutes, or regulations 

2 regarding classification of information. 

3 (6) PROTECTED INFORMATION.—The term 

4 ‘‘protected information’’ means— 

5 (A) information identifying a source who 

6 provided information under a promise or agree7 ment of confidentiality made by a covered per8 son as part of engaging in journalism; or 

9 (B) any records, contents of a communica10 tion, documents, or information that a covered 

11 person obtained or created— 

12 (i) as part of engaging in journalism; 

13 and 

14 (ii) upon a promise or agreement that 

15 such records, contents of a communication, 

16 documents, or information would be con17 fidential. 

18 SECTION 1. SHORT TITLE. 

19 This Act may be cited as the ‘‘Free Flow of Informa20 tion Act of 2013’’. 

21 SEC. 2. COMPELLED DISCLOSURE FROM COVERED JOUR22 NALISTS. 

23 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 

24 any proceeding or in connection with any issue arising 

25 under Federal law, a Federal entity may not compel a covVerDate Mar 15 2010 21:07 Nov 06, 2013 Jkt 039200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6203 E:\BILLS\S987.RS S987

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1 ered journalist to comply with a subpoena, court order, or 

2 other compulsory legal process seeking to compel the disclo3 sure of protected information, unless a judge of the United 

4 States in the jurisdiction where the subpoena, court order, 

5 or other compulsory legal process has been or would be 

6 issued determines, after providing notice and an oppor7 tunity to be heard to such covered journalist— 

8 (1) that the party seeking to compel disclosure of 

9 the protected information has exhausted all reasonable 

10 alternative sources (other than a covered journalist) of 

11 the protected information; and 

12 (2) that— 

13 (A) in a criminal investigation or prosecu14 tion— 

15 (i) if the party seeking to compel dis16 closure is the Federal Government, based on 

17 public information or information obtained 

18 from a source other than the covered jour19 nalist, there are reasonable grounds to be20 lieve that a crime has occurred; 

21 (ii) based on public information or in22 formation obtained from a source other than 

23 the covered journalist, there are reasonable 

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1 tion or prosecution or to the defense against 

2 the prosecution; 

3 (iii) the Attorney General certifies that 

4 the decision to request compelled disclosure 

5 was made in a manner consistent with sec6 tion 50.10 of title 28, Code of Federal Regu7 lations, if compelled disclosure is sought by 

8 a member of the Department of Justice in 

9 circumstances governed by section 50.10 of 

10 title 28, Code of Federal Regulations; and 

11 (iv) the covered journalist has not es12 tablished by clear and convincing evidence 

13 that disclosure of the protected information 

14 would be contrary to the public interest, 

15 taking into account both the public interest 

16 in gathering and disseminating the infor17 mation or news at issue and maintaining 

18 the free flow of information and the public 

19 interest in compelling disclosure (including 

20 the extent of any harm to national secu21 rity); or 

22 (B) in a matter other than a criminal in23 vestigation or prosecution, based on public infor24 mation or information obtained from a source 

25 other than the covered journalist— 


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1 (i) the protected information sought is 

2 essential to the resolution of the matter; and 

3 (ii) the party seeking to compel disclo4 sure of the protected information has estab5 lished that the interest in compelling disclo6 sure clearly outweighs the public interest in 

7 gathering and disseminating the informa8 tion or news at issue and maintaining the 

9 free flow of information. 

10 (b) LIMITATIONS ON CONTENT OF INFORMATION.—A 

11 subpoena, court order, or other compulsory legal process 

12 seeking to compel the disclosure of protected information 

13 under subsection (a) shall, to the extent possible, be nar14 rowly tailored in purpose, subject matter, and period of 

15 time covered so as to avoid compelling disclosure of periph16 eral, nonessential, or speculative information. 

17 (c) RULE OF CONSTRUCTION FOR COMPELLED DIS18 CLOSURE FROM COVERED JOURNALISTS.—Nothing in this 

19 section shall be construed to preclude, in addition to the 

20 procedures required under this section— 

21 (1) the requirement that a Federal or govern22 mental entity shall obtain a warrant for certain com23 munications, as set forth in section 2703 of title 18, 

24 United States Code (commonly known as the Elec25 tronic Communications Privacy Act); or 


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1 (2) the requirements and procedures regarding 

2 search and seizure set forth in Rule 41 of the Federal 

3 Rules of Criminal Procedure. 

4 SEC. 3. EXCEPTION RELATING TO CRIMINAL CONDUCT. 

5 (a) IN GENERAL.—Section 2 shall not apply to any 

6 information, record, document, or item obtained as the re7 sult of the eyewitness observations of, or obtained during 

8 the course of, alleged criminal conduct by the covered jour9 nalist, including any physical evidence or visual or audio 

10 recording of the conduct. 

11 (b) EXCEPTION.—This section shall not apply, and, 

12 subject to sections 4 and 5, section 2 shall apply, if the al13 leged criminal conduct is the act of communicating the doc14 uments or information at issue. 

15 SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, SUB16 STANTIAL BODILY INJURY, SEX OFFENSES 

17 AGAINST MINORS, OR INCAPACITATION OR 

18 DESTRUCTION OF CRITICAL INFRASTRUC19 TURE. 

20 Section 2 shall not apply to any protected information 

21 that is reasonably necessary to stop, prevent, or mitigate 

22 a specific case of— 

23 (1) death; 

24 (2) kidnapping; 

25 (3) substantial bodily harm; 


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1 (4) conduct that constitutes a criminal offense 

2 that is a specified offense against a minor (as those 

3 terms are defined in section 111 of the Adam Walsh 

4 Child Protection and Safety Act of 2006 (42 U.S.C. 

5 16911)), or an attempt or conspiracy to commit such 

6 a criminal offense; or 

7 (5) incapacitation or destruction of critical in8 frastructure (as defined in section 1016(e) of the USA 

9 PATRIOT Act (42 U.S.C. 5195c(e))). 

10 SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR 

11 HARM TO THE NATIONAL SECURITY. 

12 (a) IN GENERAL.—Section 2 shall not apply to any 

13 protected information if— 

14 (1) the party seeking to compel disclosure is the 

15 Federal Government; and 

16 (2)(A) in a criminal investigation or prosecution 

17 of the allegedly unlawful disclosure of properly classi18 fied information, the court finds by a preponderance 

19 of the evidence that the protected information for 

20 which compelled disclosure is sought would materially 

21 assist the Federal Government in preventing or miti22 gating— 

23 (i) an act of terrorism; or 


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1 (ii) other acts that are reasonably likely to 

2 cause significant and articulable harm to na3 tional security; or 

4 (B) in any other criminal investigation or pros5 ecution, the court finds by a preponderance of the evi6 dence that the protected information for which com7 pelled disclosure is sought would materially assist the 

8 Federal Government in preventing, mitigating, or 

9 identifying the perpetrator of— 

10 (i) an act of terrorism; or 

11 (ii) other acts that have caused or are rea12 sonably likely to cause significant and 

13 articulable harm to national security. 

14 (b) DEFERENCE.—In assessing the existence or extent 

15 of the harm described in subsection (a), a Federal court 

16 shall give appropriate deference to a specific factual show17 ing submitted to the court by the head of any executive 

18 branch agency or department concerned. 

19 (c) RELATIONSHIP TO SECTION 2.—Subsection (a) 

20 shall not apply, and, subject to sections 3 and 4, section 

21 2 shall apply, to any criminal investigation or prosecution 

22 of the allegedly unlawful disclosure of properly classified in23 formation other than one in which the protected informa24 tion is sought by the Federal Government to prevent or 

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1 sidering the extent of any harm to national security when 

2 applying section 2 to such cases, a Federal court shall give 

3 appropriate deference to any specific factual showing sub4 mitted to the court by the head of any executive branch 

5 agency or department concerned. 

6 (d) SUBSEQUENT UNLAWFUL DISCLOSURE.—The po7 tential for a subsequent unlawful disclosure of information 

8 by the source sought to be identified shall not, by itself and 

9 without any showing of additional facts beyond such poten10 tial disclosure, be sufficient to establish that compelled dis11 closure of the protected information would materially assist 

12 the Federal Government in preventing or mitigating— 

13 (1) an act of terrorism; or 

14 (2) other acts that are reasonably likely to cause 

15 significant and articulable harm to national security. 

16 SEC. 6. COMPELLED DISCLOSURE FROM COVERED SERVICE 

17 PROVIDERS. 

18 (a) CONDITIONS FOR COMPELLED DISCLOSURE.— 

19 (1) IN GENERAL.—Except as provided in para20 graph (2), if any document or other information from 

21 the account of a person who is known to be, or reason22 ably likely to be, a covered journalist is sought from 

23 a covered service provider, sections 2 through 5 shall 

24 apply in the same manner that such sections apply 


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1 to any document or other information sought from a 

2 covered journalist. 

3 (2) EXCEPTION.—If any document or other in4 formation from the account of a person who is known 

5 to be, or reasonably likely to be, a covered journalist 

6 is sought from a covered service provider under sec7 tion 2709 of title 18, United States Code, the provi8 sions of sections 2 through 5 governing criminal in9 vestigations and prosecutions shall apply in the same 

10 manner that such sections apply to any document or 

11 other information sought from a covered journalist in 

12 the course of a criminal investigation or prosecution, 

13 except that clauses (i) and (iii) of section 2(a)(2)(A) 

14 shall not apply. 

15 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV16 ERED JOURNALISTS.—A judge of the United States may 

17 compel the disclosure of a document or other information 

18 described in this section only after the covered journalist 

19 from whose account the document or other information is 

20 sought has been given— 

21 (1) notice from the party seeking the document 

22 or other information through a subpoena or other 

23 compulsory request, not later than the time at which 

24 such subpoena or request is issued to the covered serv25 ice provider; and 


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1 (2) an opportunity to be heard before the judge 

2 of the United States before compelling testimony or 

3 the disclosure of a document. 

4 (c) EXCEPTION TO NOTICE REQUIREMENT.— 

5 (1) IN GENERAL.—Notice and opportunity to be 

6 heard under subsection (b) may be delayed for not 

7 more than 45 days if the judge of the United States 

8 involved determines by clear and convincing evidence 

9 that such notice would pose a clear and substantial 

10 threat to the integrity of a criminal investigation, 

11 would risk grave harm to national security, or would 

12 present an imminent risk of death or serious bodily 

13 harm. 

14 (2) EXTENSION.—The 45-day period described in 

15 paragraph (1) may be extended by the court for 1 ad16 ditional period of not more than 45 days if the judge 

17 of the United States involved makes a new and inde18 pendent determination by clear and convincing evi19 dence that providing notice to the covered journalist 

20 would pose a clear and substantial threat to the integ21 rity of a criminal investigation, would risk grave 

22 harm to national security, or would present an immi23 nent risk of death or serious bodily harm under cur24 rent circumstances. 


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1 (3) SUBSTANTIAL THREAT TO THE INTEGRITY OF

2 A CRIMINAL INVESTIGATION.—For purposes of this 

3 subsection, a substantial threat to the integrity of a 

4 criminal investigation exists when the judge of the 

5 United States involved finds, by clear and convincing 

6 evidence, that the target of the investigation may 

7 learn of the investigation and destroy evidence if no8 tice is provided. 

9 (4) PROTECTIVE ORDERS.—For purposes of a de10 termination under this subsection, the judge of the 

11 United States involved shall consider whether pro12 viding notice pursuant to a protective order to the 

13 covered journalist may mitigate any clear and sub14 stantial threat to the integrity of a criminal inves15 tigation, any risk of grave harm to national security, 

16 or any imminent risk of death or serious bodily 

17 harm. 

18 (d) NOTICE TO COVERED SERVICE PROVIDER.—In all 

19 cases in which notice is required to be provided to the cov20 ered journalist under this section, a copy of such notice shall 

21 be provided simultaneously to the covered service provider 

22 from whom disclosure is sought. Once it has received such 

23 notice, the covered service provider shall not comply with 

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1 ther ordered by the court or authorized in writing by the 

2 covered journalist. 

3 (e) RULE OF CONSTRUCTION FOR DELAYED NOTICE.— 

4 The delayed notice requirements in this section shall be con5 strued to supersede the requirements for delayed notice set 

6 forth in sections 2703 and 2705(a) of title 18, United States 

7 Code. 

8 SEC. 7. SOURCES AND WORK PRODUCT PRODUCED WITH9 OUT PROMISE OR AGREEMENT OF CONFIDEN10 TIALITY. 

11 Nothing in this Act shall supersede, dilute, or preclude 

12 any law or court decision compelling or not compelling dis13 closure by a covered journalist or covered service provider 

14 of— 

15 (1) information identifying a source who pro16 vided information without a promise or agreement of 

17 confidentiality made by the covered journalist as part 

18 of engaging in journalism; or 

19 (2) records, other information, or contents of a 

20 communication obtained without a promise or agree21 ment that such records, other information, or contents 

22 of a communication would be confidential. 

23 SEC. 8. PROCEDURES FOR REVIEW AND APPEAL. 

24 (a) CONDITIONS FOR EX PARTE REVIEW OR SUBMIS25 SIONS UNDER SEAL.—With regard to any determination 


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1 made by a judge of the United States under this Act, upon 

2 a showing of good cause, that judge of the United States 

3 may receive and consider submissions from the parties in 

4 camera or under seal, and if the court determines it is nec5 essary, ex parte. 

6 (b) CONTEMPT OF COURT.—With regard to any deter7 mination made by a judge of the United States under this 

8 Act, a judge of the United States may find a covered jour9 nalist to be in civil or criminal contempt if the covered jour10 nalist fails to comply with an order of a judge of the United 

11 States compelling disclosure of protected information. 

12 (c) TO PROVIDE FOR TIMELY DETERMINATION.—With 

13 regard to any determination to be made by a judge of the 

14 United States under this Act, that judge of the United 

15 States, to the extent practicable, shall make that determina16 tion not later than 30 days after the date of receiving a 

17 motion requesting the court make that determination. 

18 (d) EXPEDITED APPEAL PROCESS.— 

19 (1) IN GENERAL.—The courts of appeal shall 

20 have jurisdiction— 

21 (A) of appeals by a Federal entity or cov22 ered journalist of an interlocutory order of a 

23 judge of the United States under this Act; and 

24 (B) in an appeal of a final decision of a 

25 judge of the United States by a Federal entity or 


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1 covered journalist, to review any determination 

2 of a judge of the United States under this Act. 

3 (2) EXPEDITION OF APPEALS.—It shall be the 

4 duty of a Federal court to which an appeal is made 

5 under this subsection to advance on the docket and to 

6 expedite to the greatest possible extent the disposition 

7 of that appeal. 

8 SEC. 9. RULE OF CONSTRUCTION. 

9 Nothing in this Act may be construed to— 

10 (1) preempt any law or claim relating to defa11 mation, slander, or libel; 

12 (2) modify the requirements of section 552a of 

13 title 5, United States Code, or Federal laws or rules 

14 relating to grand jury secrecy (except that this Act 

15 shall apply in any proceeding and in connection with 

16 any issue arising under that section or the Federal 

17 laws or rules relating to grand jury secrecy); 

18 (3) create new obligations, or affect or modify 

19 the authorities or obligations of a Federal entity with 

20 respect to the acquisition or dissemination of infor21 mation pursuant to the Foreign Intelligence Surveil22 lance Act of 1978 (50 U.S.C. 1801 et seq.); or 

23 (4) preclude voluntary disclosure of information 

24 to a Federal entity in a situation that is not governed 

25 by this Act. 


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1 SEC. 10. AUDIT. 

2 (a) IN GENERAL.—The Inspector General of the De3 partment of Justice shall perform a comprehensive audit 

4 of the use of this Act during the period beginning on the 

5 date of enactment of this Act and ending on December 31, 

6 2016. The audit shall include an examination of each in7 stance in which a court failed to compel the disclosure of 

8 protected information under this Act, and whether this Act 

9 has created any procedural impediments that have had a 

10 detrimental operational impact on the activities of the Fed11 eral Bureau of Investigation. 

12 (b) REPORT.—Not later than June 30, 2017, the In13 spector General of the Department of Justice shall submit 

14 to the Committee on the Judiciary and the Select Com15 mittee on Intelligence of the Senate and the Committee on 

16 the Judiciary and the Permanent Select Committee on In17 telligence of the House of Representatives a report con18 taining the results of the audit conducted under subsection 

19 (a). 

20 (c) REVIEW.—Not later than 30 days before the sub21 mission of the report under subsection (b), the Inspector 

22 General of the Department of Justice shall provide the re23 port to the Attorney General and the Director of National 

24 Intelligence. The Attorney General or the Director of Na25 tional Intelligence may provide such comments to be in26 cluded in the report submitted under subsection (b) as the 


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1 Attorney General or the Director of National Intelligence 

2 may consider necessary. 

3 (d) FORM.—The report submitted under subsection (b) 

4 and any comments included under subsection (c) shall be 

5 in unclassified form, but may include a classified annex. 

6 SEC. 11. DEFINITIONS. 

7 In this Act: 

8 (1) COVERED JOURNALIST.— 

9 (A) DEFINITION.—The term ‘‘covered jour10 nalist’’— 

11 (i)(I) means a person who— 

12 (aa) is, or on the relevant date, 

13 was, an employee, independent con14 tractor, or agent of an entity or service 

15 that disseminates news or information 

16 by means of newspaper; nonfiction 

17 book; wire service; news agency; news 

18 website, mobile application or other 

19 news or information service (whether 

20 distributed digitally or otherwise); 

21 news program; magazine or other peri22 odical, whether in print, electronic, or 

23 other format; or through television or 

24 radio broadcast, multichannel video 

25 programming distributor (as such term 


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1 is defined in section 602(13) of the 

2 Communications Act of 1934 (47 

3 U.S.C. 522(13)), or motion picture for 

4 public showing; 

5 (bb) with the primary intent to 

6 investigate events and procure material 

7 in order to disseminate to the public 

8 news or information concerning local, 

9 national, or international events or 

10 other matters of public interest, en11 gages, or as of the relevant date en12 gaged, in the regular gathering, prepa13 ration, collection, photographing, re14 cording, writing, editing, reporting or 

15 publishing on such matters by— 

16 (AA) conducting interviews; 

17 (BB) making direct observa18 tion of events; or 

19 (CC) collecting, reviewing, or 

20 analyzing original writings, state21 ments, communications, reports, 

22 memoranda, records, transcripts, 

23 documents, photographs, record24 ings, tapes, materials, data, or 


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1 other information whether in 

2 paper, electronic, or other form; 

3 (cc) had such intent at the incep4 tion of the process of gathering the 

5 news or information sought; and 

6 (dd) obtained the news or infor7 mation sought in order to disseminate 

8 the news or information to the public; 

9 or 

10 (II) means a person who— 

11 (aa) at the inception of the proc12 ess of gathering the news or informa13 tion sought, had the primary intent to 

14 investigate issues or events and procure 

15 material in order to disseminate to the 

16 public news or information concerning 

17 local, national, or international events 

18 or other matters of public interest, and 

19 regularly conducted interviews, re20 viewed documents, captured images of 

21 events, or directly observed events; 

22 (bb) obtained the news or infor23 mation sought in order to disseminate 

24 it by means of a medium set out in 

25 subclause (I)(aa) of this section; and 


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1 (cc) either— 

2 (AA) would have been in3 cluded in the definition in sub4 clause (I)(aa) of this section for 

5 any continuous one-year period 

6 within the 20 years prior to the 

7 relevant date or any continuous 

8 three-month period within the 5 

9 years prior to the relevant date; 

10 (BB) had substantially con11 tributed, as an author, editor, 

12 photographer, or producer, to a 

13 significant number of articles, sto14 ries, programs, or publications by 

15 a medium set out in subclause 

16 (I)(aa) of this section within 5 

17 years prior to the relevant date; 

18 or 

19 (CC) was a student partici20 pating in a journalistic medium 

21 at an institution of higher edu22 cation (as defined in section 102 

23 of the Higher Education Act of 

24 1965 (20 U.S.C. 1002)) on the rel25 evant date; 


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1 (ii) includes a supervisor, editor, em2 ployer, parent company, subsidiary, or af3 filiate of a person described in subclause (I) 

4 or (II) of clause (i); and 

5 (iii) does not include any person or en6 tity— 

7 (I) whose principal function, as 

8 demonstrated by the totality of such 

9 person or entity’s work, is to publish 

10 primary source documents that have 

11 been disclosed to such person or entity 

12 without authorization; or 

13 (II) who is or is reasonably likely 

14 to be— 

15 (aa) a foreign power or an 

16 agent of a foreign power, as those 

17 terms are defined in section 101 

18 of the Foreign Intelligence Sur19 veillance Act of 1978 (50 U.S.C. 

20 1801); 

21 (bb) a member or affiliate of 

22 a foreign terrorist organization 

23 designated under section 219(a) of 

24 the Immigration and Nationality 

25 Act (8 U.S.C. 1189(a)); 


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1 (cc) designated as a Spe2 cially Designated Global Terrorist 

3 by the Department of the Treas4 ury under Executive Order 13224 

5 (66 Fed. Reg. 49079); 

6 (dd) a specially designated 

7 terrorist, as that term is defined 

8 in section 595.311 of title 31, 

9 Code of Federal Regulations (or 

10 any successor thereto); 

11 (ee) a terrorist organization, 

12 as that term is defined in section 

13 12(a)(3)(B)(vi)(II) of the Immi14 gration and Nationality Act (8 

15 U.S.C. 1182(a)(3)(B)(vi)(II)); 

16 (ff) committing or attempt17 ing to commit the crime of ter18 rorism, as that offense is defined 

19 in section 2331(5) or 2332b(g)(5) 

20 of title 18, United States Code; 

21 (gg) committing or attempt22 ing the crime of providing mate23 rial support, as that term is de24 fined in section 2339A(b)(1) of 


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1 title 18, United States Code, to a 

2 terrorist organization; or 

3 (hh) aiding, abetting, or con4 spiring in illegal activity with a 

5 person or organization defined in 

6 items (aa) through (gg). 

7 (B) JUDICIAL DISCRETION.—In the case of 

8 a person that does not fit within the definition 

9 of ‘‘covered journalist’’ described in subclause (I) 

10 or (II) of paragraph (A)(i), a judge of the 

11 United States may exercise discretion to avail 

12 the person of the protections of this Act if, based 

13 on specific facts contained in the record, the 

14 judge determines that such protections would be 

15 in the interest of justice and necessary to protect 

16 lawful and legitimate news-gathering activities 

17 under the specific circumstances of the case. 

18 (2) COVERED SERVICE PROVIDER.—The term 

19 ‘‘covered service provider’’ means— 

20 (A) any person that transmits information 

21 of the customer’s choosing by electronic means; 

22 (B) a telecommunications carrier or an in23 formation service, as defined in section 3 of the 

24 Communications Act of 1934 (47 U.S.C. 153); 


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1 (C) an interactive computer service or an 

2 information content provider, as defined in sec3 tion 230 of the Communications Act of 1934 (47 

4 U.S.C. 230); 

5 (D) a remote computing service, as defined 

6 in section 2711 of title 18, United States Code; 

7 (E) an electronic communications service, 

8 as defined in section 2510 of title 18, United 

9 States Code; or 

10 (F) any commercial entity that maintains 

11 records related to a covered journalist. 

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

13 writings, recordings, and photographs, as those terms 

14 are defined by rule 1001 of the Federal Rules of Evi15 dence (28 U.S.C. App.). 

16 (4) FEDERAL ENTITY.—The term ‘‘Federal enti17 ty’’ means an entity or employee of the judicial or ex18 ecutive branch or an administrative agency of the 

19 Federal Government with the power to issue a sub20 poena or issue other compulsory process. 

21 (5) JUDGE OF THE UNITED STATES.—The term 

22 ‘‘judge of the United States’’ includes judges of the 

23 courts of appeals, district courts, Court of Inter24 national Trade and any court created by Act of Con25 gress, the judges of which are entitled to hold office 


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1 during good behavior, as defined in section 451 of 

2 title 28, United States Code. 

3 (6) PROPERLY CLASSIFIED INFORMATION.—The 

4 term ‘‘properly classified information’’ means infor5 mation that is classified in accordance with any ap6 plicable Executive orders, statutes, or regulations re7 garding classification of information. 

8 (7) PROTECTED INFORMATION.—The term ‘‘pro9 tected information’’ means— 

10 (A) information identifying a source who 

11 provided information under a promise or agree12 ment of confidentiality made by a covered jour13 nalist as part of engaging in journalism; or 

14 (B) any records, contents of a communica15 tion, documents, or information that a covered 

16 journalist obtained or created— 

17 (i) as part of engaging in journalism; 

18 and 

19 (ii) upon a promise or agreement that 

20 such records, contents of a communication, 

21 documents, or information would be con22 fidential. 

23 (8) RELEVANT DATE.—The term ‘‘relevant date’’ 

24 means the date on which the protected information 


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1 sought was obtained or created by the person assert2 ing protection under this Act. 


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Calendar No. 238 

113TH CONGRESS 

1ST SESSION S. 987 

[Report No. 113–118] 

A BILL 

To maintain the free flow of information to the 

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

NOVEMBER 6, 2013 

Reported with an amendment 


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