II 

113TH CONGRESS 

1ST SESSION 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. 

IN THE SENATE OF THE UNITED STATES 

MAY 16, 2013 

Mr. SCHUMER (for himself and Mr. GRAHAM) introduced the following bill; 

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

A BILL 

To maintain the free flow of information to the public by 

providing conditions for the federally compelled disclosure 

of information by certain persons connected with the 

news media. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Free Flow of Informa5 tion Act of 2013’’. 


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1 SEC. 2. COMPELLED DISCLOSURE FROM COVERED PER2 SONS. 

3 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 

4 any proceeding or in connection with any issue arising 

5 under Federal law, a Federal entity may not compel a cov6 ered person to comply with a subpoena, court order, or 

7 other compulsory legal process seeking to compel the dis8 closure of protected information, unless a Federal court 

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

10 other compulsory legal process has been or would be issued 

11 determines, after providing notice and an opportunity to 

12 be heard to such covered person— 

13 (1) that the party seeking to compel disclosure 

14 of the protected information has exhausted all rea15 sonable alternative sources (other than a covered 

16 person) of the protected information; and 

17 (2) that— 

18 (A) in a criminal investigation or prosecu19 tion— 

20 (i) if the party seeking to compel dis21 closure is the Federal Government, based 

22 on public information or information ob23 tained from a source other than the cov24 ered person, there are reasonable grounds 

25 to believe that a crime has occurred; 


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1 (ii) based on public information or in2 formation obtained from a source other 

3 than the covered person, there are reason4 able grounds to believe that the protected 

5 information sought is essential to the in6 vestigation or prosecution or to the defense 

7 against the prosecution; 

8 (iii) the Attorney General certifies 

9 that the decision to request compelled dis10 closure was made in a manner consistent 

11 with section 50.10 of title 28, Code of Fed12 eral Regulations, if compelled disclosure is 

13 sought by a member of the Department of 

14 Justice in circumstances governed by sec15 tion 50.10 of title 28, Code of Federal 

16 Regulations; and 

17 (iv) the covered person has not estab18 lished by clear and convincing evidence 

19 that disclosure of the protected informa20 tion would be contrary to the public inter21 est, taking into account both the public in22 terest in gathering and disseminating the 

23 information or news at issue and maintain24 ing the free flow of information and the 

25 public interest in compelling disclosure (inVerDate Mar 15 2010 23:47 May 22, 2013 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S987.IS S987

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1 cluding the extent of any harm to national 

2 security); or 

3 (B) in a matter other than a criminal in4 vestigation or prosecution, based on public in5 formation or information obtained from a 

6 source other than the covered person— 

7 (i) the protected information sought is 

8 essential to the resolution of the matter; 

9 and 

10 (ii) the party seeking to compel disclo11 sure of the protected information has es12 tablished that the interest in compelling 

13 disclosure clearly outweighs the public in14 terest in gathering and disseminating the 

15 information or news at issue and maintain16 ing the free flow of information. 

17 (b) LIMITATIONS ON CONTENT OF INFORMATION.— 

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

19 seeking to compel the disclosure of protected information 

20 under subsection (a) shall, to the extent possible, be nar21 rowly tailored in purpose, subject matter, and period of 

22 time covered so as to avoid compelling disclosure of pe23 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. 

Æ 


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