II 

110TH CONGRESS 

1ST SESSION S. 1267 

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 2, 2007 

Mr. LUGAR (for himself, Mr. DODD, Mr. GRAHAM, Mr. DOMENICI, and Ms. 

LANDRIEU) 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 2007’’. 


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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 provide testimony or produce any document 

7 related to information possessed by such covered person 

8 as part of engaging in journalism, unless a court deter9 mines by a preponderance of the evidence, after providing 

10 notice and an opportunity to be heard to such covered per11 son— 

12 (1) that the party seeking to compel production 

13 of such testimony or document has exhausted all 

14 reasonable alternative sources (other than a covered 

15 person) of the testimony or document; 

16 (2) that— 

17 (A) in a criminal investigation or prosecu18 tion, based on information obtained from a per19 son other than the covered person— 

20 (i) there are reasonable grounds to be21 lieve that a crime has occurred; and 

22 (ii) the testimony or document sought 

23 is essential to the investigation or prosecu24 tion or to the defense against the prosecu25 tion; or 


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1 (B) in a matter other than a criminal in2 vestigation or prosecution, based on information 

3 obtained from a person other than the covered 

4 person, the testimony or document sought is es5 sential to the successful completion of the mat6 ter; 

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

8 sought could reveal the identity of a source of infor9 mation or include any information that could reason10 ably be expected to lead to the discovery of the iden11 tity of such a source, that— 

12 (A) disclosure of the identity of such a 

13 source is necessary to prevent imminent and ac14 tual harm to national security with the objective 

15 to prevent such harm; 

16 (B) disclosure of the identity of such a 

17 source is necessary to prevent imminent death 

18 or significant bodily harm with the objective to 

19 prevent such death or harm, respectively; or 

20 (C) disclosure of the identity of such a 

21 source is necessary to identify a person who has 

22 disclosed— 

23 (i) a trade secret of significant value 

24 in violation of a State or Federal law; 


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1 (ii) individually identifiable health in2 formation, as such term is defined in sec3 tion 1171(6) of the Social Security Act (42 

4 U.S.C. 1320d(6)), in violation of Federal 

5 law; or 

6 (iii) nonpublic personal information, 

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

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

9 6809(4)), of any consumer in violation of 

10 Federal law; and 

11 (4) that nondisclosure of the information would 

12 be contrary to the public interest, taking into ac13 count both the public interest in compelling disclo14 sure and the public interest in gathering news and 

15 maintaining the free flow of information. 

16 (b) LIMITATIONS ON CONTENT OF INFORMATION.— 

17 The content of any testimony or document that is com18 pelled under subsection (a) shall, to the extent possible— 

19 (1) be limited to the purpose of verifying pub20 lished information or describing any surrounding cir21 cumstances relevant to the accuracy of such pub22 lished information; and 

23 (2) be narrowly tailored in subject matter and 

24 period of time covered so as to avoid compelling proVerDate Aug 31 2005 03:09 May 03, 2007 Jkt 059200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1267.IS S1267

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

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 engaged in journalism and 

24 includes a supervisor, employer, parent, subsidiary, 

25 or affiliate of such covered person. 


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

2 writings, recordings, and photographs, as those 

3 terms are defined by Federal Rule of Evidence 1001 

4 (28 U.S.C. App.). 

5 (4) FEDERAL ENTITY.—The term ‘‘Federal en6 tity’’ means an entity or employee of the judicial or 

7 executive branch or an administrative agency of the 

8 Federal Government with the power to issue a sub9 poena or issue other compulsory process. 

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

11 means the gathering, preparing, collecting, 

12 photographing, recording, writing, editing, reporting, 

13 or publishing of news or information that concerns 

14 local, national, or international events or other mat15 ters of public interest for dissemination to the pub16 lic. 

Æ 


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