IIB 

111TH CONGRESS 

1ST SESSION H. R. 985 

IN THE SENATE OF THE UNITED STATES 

APRIL 1, 2009 

Received; read twice and referred to the Committee on the Judiciary 

AN ACT 

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 2009’’. 

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

6 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 

7 any matter arising under Federal law, a Federal entity 

8 may not compel a covered person to provide testimony or 

9 produce any document related to information obtained or 

10 created by such covered person as part of engaging in 

11 journalism, unless a court determines by a preponderance 

12 of the evidence, after providing notice and an opportunity 

13 to be heard to such covered person— 

14 (1) that the party seeking to compel production 

15 of such testimony or document has exhausted all 

16 reasonable alternative sources (other than the cov17 ered person) of the testimony or document; 

18 (2) that— 

19 (A) in a criminal investigation or prosecu20 tion, based on information obtained from a per21 son other than the covered person— 

22 (i) there are reasonable grounds to be23 lieve that a crime has occurred; and 

24 (ii) the testimony or document sought 

25 is critical to the investigation or prosecuVerDate Nov 24 2008 04:06 Apr 02, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H985.RFS H985

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1 tion or to the defense against the prosecu2 tion; or 

3 (B) in a matter other than a criminal in4 vestigation or prosecution, based on information 

5 obtained from a person other than the covered 

6 person, the testimony or document sought is 

7 critical to the successful completion of the mat8 ter; 

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

10 sought could reveal the identity of a source of infor11 mation or include any information that could reason12 ably be expected to lead to the discovery of the iden13 tity of such a source, that— 

14 (A) disclosure of the identity of such a 

15 source is necessary to prevent, or to identify 

16 any perpetrator of, an act of terrorism against 

17 the United States or its allies or other signifi18 cant and specified harm to national security 

19 with the objective to prevent such harm; 

20 (B) disclosure of the identity of such a 

21 source is necessary to prevent imminent death 

22 or significant bodily harm with the objective to 

23 prevent such death or harm, respectively; 


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1 (C) disclosure of the identity of such a 

2 source is necessary to identify a person who has 

3 disclosed— 

4 (i) a trade secret, actionable under 

5 section 1831 or 1832 of title 18, United 

6 States Code; 

7 (ii) individually identifiable health in8 formation, as such term is defined in sec9 tion 1171(6) of the Social Security Act (42 

10 U.S.C. 1320d(6)), actionable under Fed11 eral law; or 

12 (iii) nonpublic personal information, 

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

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

15 6809(4)), of any consumer actionable 

16 under Federal law; or 

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

18 source is essential to identify in a criminal in19 vestigation or prosecution a person who without 

20 authorization disclosed properly classified infor21 mation and who at the time of such disclosure 

22 had authorized access to such information; and 

23 (ii) such unauthorized disclosure has 

24 caused or will cause significant and articulable 

25 harm to the national security; and 


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1 (4) that the public interest in compelling disclo2 sure of the information or document involved out3 weighs the public interest in gathering or dissemi4 nating news or information. 

5 (b) AUTHORITY TO CONSIDER NATIONAL SECURITY

6 INTEREST.—For purposes of making a determination 

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

8 of any harm to national security. 

9 (c) LIMITATIONS ON CONTENT OF INFORMATION.— 

10 The content of any testimony or document that is com11 pelled under subsection (a) shall— 

12 (1) not be overbroad, unreasonable, or oppres13 sive and, as appropriate, be limited to the purpose 

14 of verifying published information or describing any 

15 surrounding circumstances relevant to the accuracy 

16 of such published information; and 

17 (2) be narrowly tailored in subject matter and 

18 period of time covered so as to avoid compelling pro19 duction of peripheral, nonessential, or speculative in20 formation. 

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

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

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

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

25 raised in a State or Federal court. 


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1 (e) EXCEPTION RELATING TO CRIMINAL OR

2 TORTIOUS CONDUCT.—The provisions of this section shall 

3 not prohibit or otherwise limit a Federal entity in any 

4 matter arising under Federal law from compelling a cov5 ered person to disclose any information, record, document, 

6 or item obtained as the result of the eyewitness observa7 tion by the covered person of alleged criminal conduct or 

8 as the result of the commission of alleged criminal or 

9 tortious conduct by the covered person, including any 

10 physical evidence or visual or audio recording of the con11 duct, if a Federal court determines that the party seeking 

12 to compel such disclosure has exhausted all other reason13 able efforts to obtain the information, record, document, 

14 or item, respectively, from alternative sources. The pre15 vious sentence shall not apply, and subsections (a) and 

16 (b) shall apply, in the case that the alleged criminal con17 duct observed by the covered person or the alleged crimi18 nal or tortious conduct committed by the covered person 

19 is the act of transmitting or communicating the informa20 tion, record, document, or item sought for disclosure. 

21 SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS 

22 SERVICE PROVIDERS. 

23 (a) CONDITIONS FOR COMPELLED DISCLOSURE.— 

24 With respect to testimony or any document consisting of 

25 any record, information, or other communication that reVerDate Nov 24 2008 04:06 Apr 02, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H985.RFS H985

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1 lates to a business transaction between a communications 

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

3 to such testimony or document if sought from the commu4 nications service provider in the same manner that such 

5 section applies to any testimony or document sought from 

6 a covered person. 

7 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV8 ERED PERSONS.—A court may compel the testimony or 

9 disclosure of a document under this section only after the 

10 party seeking such a document provides the covered per11 son who is a party to the business transaction described 

12 in subsection (a)— 

13 (1) notice of the subpoena or other compulsory 

14 request for such testimony or disclosure from the 

15 communications service provider not later than the 

16 time at which such subpoena or request is issued to 

17 the communications service provider; and 

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

19 before the time at which the testimony or disclosure 

20 is compelled. 

21 (c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 

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

23 involved determines by clear and convincing evidence that 

24 such notice would pose a substantial threat to the integrity 

25 of a criminal investigation. 


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1 SEC. 4. DEFINITIONS. 

2 In this Act: 

3 (1) COMMUNICATIONS SERVICE PROVIDER.— 

4 The term ‘‘communications service provider’’— 

5 (A) means any person that transmits infor6 mation of the customer’s choosing by electronic 

7 means; and 

8 (B) includes a telecommunications carrier, 

9 an information service provider, an interactive 

10 computer service provider, and an information 

11 content provider (as such terms are defined in 

12 sections 3 and 230 of the Communications Act 

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

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

15 person’’ means a person who regularly gathers, pre16 pares, collects, photographs, records, writes, edits, 

17 reports, or publishes news or information that con18 cerns local, national, or international events or other 

19 matters of public interest for dissemination to the 

20 public for a substantial portion of the person’s liveli21 hood or for substantial financial gain and includes a 

22 supervisor, employer, parent, subsidiary, or affiliate 

23 of such covered person. Such term shall not in24 clude— 

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

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


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1 defined in section 101 of the Foreign Intel2 ligence Surveillance Act of 1978 (50 U.S.C. 

3 1801); 

4 (B) any organization designated by the 

5 Secretary of State as a foreign terrorist organi6 zation in accordance with section 219 of the 

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

8 1189); 

9 (C) any person included on the Annex to 

10 Executive Order No. 13224, of September 23, 

11 2001, and any other person identified under 

12 section 1 of that Executive order whose prop13 erty and interests in property are blocked by 

14 that section; 

15 (D) any person who is a specially des16 ignated terrorist, as that term is defined in sec17 tion 595.311 of title 31, Code of Federal Regu18 lations (or any successor thereto); or 

19 (E) any terrorist organization, as that 

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

21 of the Immigration and Nationality Act (8 

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

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

24 writings, recordings, and photographs, as those 


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1 terms are defined by Federal Rule of Evidence 1001 

2 (28 U.S.C. App.). 

3 (4) FEDERAL ENTITY.—The term ‘‘Federal en4 tity’’ means an entity or employee of the judicial or 

5 executive branch or an administrative agency of the 

6 Federal Government with the power to issue a sub7 poena or issue other compulsory process. 

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

9 means the gathering, preparing, collecting, 

10 photographing, recording, writing, editing, reporting, 

11 or publishing of news or information that concerns 

12 local, national, or international events or other mat13 ters of public interest for dissemination to the pub14 lic. 

Passed the House of Representatives March 31, 

2009. 

Attest: LORRAINE C. MILLER, 

Clerk. 


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