IB 

Union Calendar No. 26 

111TH CONGRESS 

1ST SESSION H. R. 985 

[Report No. 111–61] 

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

for the federally compelled disclosure of information by certain persons 

connected with the news media. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 11, 2009 

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

YARMUTH, Mr. WALDEN, Ms. ZOE LOFGREN of California, Mr. COBLE, 

Mr. WEXLER, Mr. BLUNT, Ms. BERKLEY, Mr. WU, Ms. SCHAKOWSKY, 

Ms. LEE of California, Mr. DELAHUNT, Mr. MACK, Mr. MCCAUL, Ms. 

NORTON, Mr. WOLF, Ms. WOOLSEY, Mr. MURPHY of Connecticut, Mr. 

UPTON, Ms. SLAUGHTER, Mr. BERRY, Ms. GIFFORDS, Mr. GONZALEZ, 

Mr. PUTNAM, Mr. WEINER, Mr. PAYNE, Mr. COHEN, Mr. KENNEDY, Mr. 

RADANOVICH, Mr. COOPER, Mr. DOYLE, Ms. BALDWIN, Ms. WASSERMAN

SCHULTZ, Ms. ESHOO, Mr. BUTTERFIELD, and Mr. REHBERG) introduced the following bill; which was referred to the Committee on the Judiciary 

MARCH 30, 2009 

Additional sponsors: Mr. MCDERMOTT, Mr. CLAY, Mr. BRADY of Texas, Ms. 

EDDIE BERNICE JOHNSON of Texas, Mr. KIND, Mr. OBERSTAR, Mr. LEE

of New York, Mr. ROONEY, Ms. JACKSON-LEE of Texas, Mr. POE of 

Texas, Mr. BOOZMAN, and Mr. MAFFEI

MARCH 30, 2009 

Committed to the Committee of the Whole House on the State of the Union 

and ordered to be printed 


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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 2009’’. 

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

8 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 

9 any matter arising under Federal law, a Federal entity 

10 may not compel a covered person to provide testimony or 

11 produce any document related to information obtained or 

12 created by such covered person as part of engaging in 

13 journalism, unless a court determines by a preponderance 

14 of the evidence, after providing notice and an opportunity 

15 to be heard to such covered person— 

16 (1) that the party seeking to compel production 

17 of such testimony or document has exhausted all 

18 reasonable alternative sources (other than the cov19 ered person) of the testimony or document; 

20 (2) that— 


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1 (A) in a criminal investigation or prosecu2 tion, based on information obtained from a per3 son other than the covered person— 

4 (i) there are reasonable grounds to be5 lieve that a crime has occurred; and 

6 (ii) the testimony or document sought 

7 is critical to the investigation or prosecu8 tion or to the defense against the prosecu9 tion; or 

10 (B) in a matter other than a criminal in11 vestigation or prosecution, based on information 

12 obtained from a person other than the covered 

13 person, the testimony or document sought is 

14 critical to the successful completion of the mat15 ter; 

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

17 sought could reveal the identity of a source of infor18 mation or include any information that could reason19 ably be expected to lead to the discovery of the iden20 tity of such a source, that— 

21 (A) disclosure of the identity of such a 

22 source is necessary to prevent, or to identify 

23 any perpetrator of, an act of terrorism against 

24 the United States or its allies or other signifiVerDate Nov 24 2008 22:22 Mar 30, 2009 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H985.RH H985

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1 cant and specified harm to national security 

2 with the objective to prevent such harm; 

3 (B) disclosure of the identity of such a 

4 source is necessary to prevent imminent death 

5 or significant bodily harm with the objective to 

6 prevent such death or harm, respectively; 

7 (C) disclosure of the identity of such a 

8 source is necessary to identify a person who has 

9 disclosed— 

10 (i) a trade secret, actionable under 

11 section 1831 or 1832 of title 18, United 

12 States Code; 

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

16 U.S.C. 1320d(6)), actionable under Fed17 eral law; or 

18 (iii) nonpublic personal information, 

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

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

21 6809(4)), of any consumer actionable 

22 under Federal law; or 

23 (D)(i) disclosure of the identity of such a 

24 source is essential to identify in a criminal in25 vestigation or prosecution a person who without 


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1 authorization disclosed properly classified infor2 mation and who at the time of such disclosure 

3 had authorized access to such information; and 

4 (ii) such unauthorized disclosure has 

5 caused or will cause significant and articulable 

6 harm to the national security; and 

7 (4) that the public interest in compelling disclo8 sure of the information or document involved out9 weighs the public interest in gathering or dissemi10 nating news or information. 

11 (b) AUTHORITY TO CONSIDER NATIONAL SECURITY

12 INTEREST.—For purposes of making a determination 

13 under subsection (a)(4), a court may consider the extent 

14 of any harm to national security. 

15 (c) LIMITATIONS ON CONTENT OF INFORMATION.— 

16 The content of any testimony or document that is com17 pelled under subsection (a) shall— 

18 (1) not be overbroad, unreasonable, or oppres19 sive and, as appropriate, be limited to the purpose 

20 of verifying published information or describing any 

21 surrounding circumstances relevant to the accuracy 

22 of such published information; and 

23 (2) be narrowly tailored in subject matter and 

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1 duction of peripheral, nonessential, or speculative in2 formation. 

3 (d) RULE OF CONSTRUCTION.—Nothing in this Act 

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

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

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

7 raised in a State or Federal court. 

8 (e) EXCEPTION RELATING TO CRIMINAL OR

9 TORTIOUS CONDUCT.—The provisions of this section shall 

10 not prohibit or otherwise limit a Federal entity in any 

11 matter arising under Federal law from compelling a cov12 ered person to disclose any information, record, document, 

13 or item obtained as the result of the eyewitness observa14 tion by the covered person of alleged criminal conduct or 

15 as the result of the commission of alleged criminal or 

16 tortious conduct by the covered person, including any 

17 physical evidence or visual or audio recording of the con18 duct, if a Federal court determines that the party seeking 

19 to compel such disclosure has exhausted all other reason20 able efforts to obtain the information, record, document, 

21 or item, respectively, from alternative sources. The pre22 vious sentence shall not apply, and subsections (a) and 

23 (b) shall apply, in the case that the alleged criminal con24 duct observed by the covered person or the alleged crimi25 nal or tortious conduct committed by the covered person 


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1 is the act of transmitting or communicating the informa2 tion, record, document, or item sought for disclosure. 

3 SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS 

4 SERVICE PROVIDERS. 

5 (a) CONDITIONS FOR COMPELLED DISCLOSURE.— 

6 With respect to testimony or any document consisting of 

7 any record, information, or other communication that re8 lates to a business transaction between a communications 

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

10 to such testimony or document if sought from the commu11 nications service provider in the same manner that such 

12 section applies to any testimony or document sought from 

13 a covered person. 

14 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV15 ERED PERSONS.—A court may compel the testimony or 

16 disclosure of a document under this section only after the 

17 party seeking such a document provides the covered per18 son who is a party to the business transaction described 

19 in subsection (a)— 

20 (1) notice of the subpoena or other compulsory 

21 request for such testimony or disclosure from the 

22 communications service provider not later than the 

23 time at which such subpoena or request is issued to 

24 the communications service provider; and 


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

2 before the time at which the testimony or disclosure 

3 is compelled. 

4 (c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 

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

6 involved determines by clear and convincing evidence that 

7 such notice would pose a substantial threat to the integrity 

8 of a criminal investigation. 

9 SEC. 4. DEFINITIONS. 

10 In this Act: 

11 (1) COMMUNICATIONS SERVICE PROVIDER.— 

12 The term ‘‘communications service provider’’— 

13 (A) means any person that transmits infor14 mation of the customer’s choosing by electronic 

15 means; and 

16 (B) includes a telecommunications carrier, 

17 an information service provider, an interactive 

18 computer service provider, and an information 

19 content provider (as such terms are defined in 

20 sections 3 and 230 of the Communications Act 

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

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

23 person’’ means a person who regularly gathers, pre24 pares, collects, photographs, records, writes, edits, 

25 reports, or publishes news or information that conVerDate Nov 24 2008 22:22 Mar 30, 2009 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H985.RH H985

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1 cerns local, national, or international events or other 

2 matters of public interest for dissemination to the 

3 public for a substantial portion of the person’s liveli4 hood or for substantial financial gain and includes a 

5 supervisor, employer, parent, subsidiary, or affiliate 

6 of such covered person. Such term shall not in7 clude— 

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

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

10 defined in section 101 of the Foreign Intel11 ligence Surveillance Act of 1978 (50 U.S.C. 

12 1801); 

13 (B) any organization designated by the 

14 Secretary of State as a foreign terrorist organi15 zation in accordance with section 219 of the 

16 Immigration and Nationality Act (8 U.S.C. 

17 1189); 

18 (C) any person included on the Annex to 

19 Executive Order No. 13224, of September 23, 

20 2001, and any other person identified under 

21 section 1 of that Executive order whose prop22 erty and interests in property are blocked by 

23 that section; 

24 (D) any person who is a specially des25 ignated terrorist, as that term is defined in secVerDate Nov 24 2008 22:22 Mar 30, 2009 Jkt 079200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H985.RH H985

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1 tion 595.311 of title 31, Code of Federal Regu2 lations (or any successor thereto); or 

3 (E) any terrorist organization, as that 

4 term is defined in section 212(a)(3)(B)(vi)(II) 

5 of the Immigration and Nationality Act (8 

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

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

8 writings, recordings, and photographs, as those 

9 terms are defined by Federal Rule of Evidence 1001 

10 (28 U.S.C. App.). 

11 (4) FEDERAL ENTITY.—The term ‘‘Federal en12 tity’’ means an entity or employee of the judicial or 

13 executive branch or an administrative agency of the 

14 Federal Government with the power to issue a sub15 poena or issue other compulsory process. 

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

17 means the gathering, preparing, collecting, 

18 photographing, recording, writing, editing, reporting, 

19 or publishing of news or information that concerns 

20 local, national, or international events or other mat21 ters of public interest for dissemination to the pub22 lic. 


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Union Calendar No. 26 

111TH CONGRESS 

1ST SESSION H. R. 985 

[Report No. 111–61] 

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 

MARCH 30, 2009 

Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 


pwalker on PROD1PC71 with BILLS