I 

112TH CONGRESS 

1ST SESSION H. R. 2932 

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 

SEPTEMBER 14, 2011 

Mr. PENCE introduced the following bill; which was 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 2011’’. 


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

3 (a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 

4 any matter arising under Federal law, a Federal entity 

5 may not compel a covered person to provide testimony or 

6 produce any document related to information obtained or 

7 created by such covered person as part of engaging in 

8 journalism, unless a court determines by a preponderance 

9 of the evidence, after providing notice and an opportunity 

10 to be heard to such covered person— 

11 (1) that the party seeking to compel production 

12 of such testimony or document has exhausted all 

13 reasonable alternative sources (other than the cov14 ered person) of the testimony or document; 

15 (2) that— 

16 (A) in a criminal investigation or prosecu17 tion, based on information obtained from a per18 son other than the covered person— 

19 (i) there are reasonable grounds to be20 lieve that a crime has occurred; and 

21 (ii) the testimony or document sought 

22 is critical to the investigation or prosecu23 tion or to the defense against the prosecu24 tion; or 

25 (B) in a matter other than a criminal in26 vestigation or prosecution, based on information 


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1 obtained from a person other than the covered 

2 person, the testimony or document sought is 

3 critical to the successful completion of the mat4 ter; 

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

6 sought could reveal the identity of a source of infor7 mation or include any information that could reason8 ably be expected to lead to the discovery of the iden9 tity of such a source, that— 

10 (A) disclosure of the identity of such a 

11 source is necessary to prevent, or to identify 

12 any perpetrator of, an act of terrorism against 

13 the United States or its allies or other signifi14 cant and specified harm to national security 

15 with the objective 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; 

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, actionable under 

24 section 1831 or 1832 of title 18, United 

25 States Code; 


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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)), actionable under Fed5 eral 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 actionable 

10 under Federal law; or 

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

12 source is essential to identify in a criminal in13 vestigation or prosecution a person who without 

14 authorization disclosed properly classified infor15 mation and who at the time of such disclosure 

16 had authorized access to such information; and 

17 (ii) such unauthorized disclosure has 

18 caused or will cause significant and articulable 

19 harm to the national security; and 

20 (4) that the public interest in compelling disclo21 sure of the information or document involved out22 weighs the public interest in gathering or dissemi23 nating news or information. 

24 (b) AUTHORITY TO CONSIDER NATIONAL SECURITY

25 INTEREST.—For purposes of making a determination 


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

2 of any harm to national security. 

3 (c) LIMITATIONS ON CONTENT OF INFORMATION.— 

4 The content of any testimony or document that is com5 pelled under subsection (a) shall— 

6 (1) not be overbroad, unreasonable, or oppres7 sive and, as appropriate, be limited to the purpose 

8 of verifying published information or describing any 

9 surrounding circumstances relevant to the accuracy 

10 of such published information; and 

11 (2) be narrowly tailored in subject matter and 

12 period of time covered so as to avoid compelling pro13 duction of peripheral, nonessential, or speculative in14 formation. 

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

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

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

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

19 raised in a State or Federal court. 

20 (e) EXCEPTION RELATING TO CRIMINAL OR

21 TORTIOUS CONDUCT.—The provisions of this section shall 

22 not prohibit or otherwise limit a Federal entity in any 

23 matter arising under Federal law from compelling a cov24 ered person to disclose any information, record, document, 

25 or item obtained as the result of the eyewitness observaVerDate Mar 15 2010 22:14 Sep 16, 2011 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2932.IH H2932

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1 tion by the covered person of alleged criminal conduct or 

2 as the result of the commission of alleged criminal or 

3 tortious conduct by the covered person, including any 

4 physical evidence or visual or audio recording of the con5 duct, if a Federal court determines that the party seeking 

6 to compel such disclosure has exhausted all other reason7 able efforts to obtain the information, record, document, 

8 or item, respectively, from alternative sources. The pre9 vious sentence shall not apply, and subsections (a) and 

10 (b) shall apply, in the case that the alleged criminal con11 duct observed by the covered person or the alleged crimi12 nal or tortious conduct committed by the covered person 

13 is the act of transmitting or communicating the informa14 tion, record, document, or item sought for disclosure. 

15 SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS 

16 SERVICE PROVIDERS. 

17 (a) CONDITIONS FOR COMPELLED DISCLOSURE.— 

18 With respect to testimony or any document consisting of 

19 any record, information, or other communication that re20 lates to a business transaction between a communications 

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

22 to such testimony or document if sought from the commu23 nications service provider in the same manner that such 

24 section applies to any testimony or document sought from 

25 a covered person. 


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1 (b) NOTICE AND OPPORTUNITY PROVIDED TO COV2 ERED PERSONS.—A court may compel the testimony or 

3 disclosure of a document under this section only after the 

4 party seeking such a document provides the covered per5 son who is a party to the business transaction described 

6 in subsection (a)— 

7 (1) notice of the subpoena or other compulsory 

8 request for such testimony or disclosure from the 

9 communications service provider not later than the 

10 time at which such subpoena or request is issued to 

11 the communications service provider; and 

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

13 before the time at which the testimony or disclosure 

14 is compelled. 

15 (c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 

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

17 involved determines by clear and convincing evidence that 

18 such notice would pose a substantial threat to the integrity 

19 of a criminal investigation. 

20 SEC. 4. DEFINITIONS. 

21 In this Act: 

22 (1) COMMUNICATIONS SERVICE PROVIDER.— 

23 The term ‘‘communications service provider’’— 


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1 (A) means any person that transmits infor2 mation of the customer’s choosing by electronic 

3 means; and 

4 (B) includes a telecommunications carrier, 

5 an information service provider, an interactive 

6 computer service provider, and an information 

7 content provider (as such terms are defined in 

8 sections 3 and 230 of the Communications Act 

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

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

11 person’’ means a person who regularly gathers, pre12 pares, collects, photographs, records, writes, edits, 

13 reports, or publishes news or information that con14 cerns local, national, or international events or other 

15 matters of public interest for dissemination to the 

16 public for a substantial portion of the person’s liveli17 hood or for substantial financial gain and includes a 

18 supervisor, employer, parent, subsidiary, or affiliate 

19 of such covered person. Such term shall not in20 clude— 

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

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

23 defined in section 101 of the Foreign Intel24 ligence Surveillance Act of 1978 (50 U.S.C. 

25 1801); 


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1 (B) any organization designated by the 

2 Secretary of State as a foreign terrorist organi3 zation in accordance with section 219 of the 

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

5 1189); 

6 (C) any person included on the Annex to 

7 Executive Order No. 13224, of September 23, 

8 2001, and any other person identified under 

9 section 1 of that Executive order whose prop10 erty and interests in property are blocked by 

11 that section; 

12 (D) any person who is a specially des13 ignated terrorist, as that term is defined in sec14 tion 595.311 of title 31, Code of Federal Regu15 lations (or any successor thereto); or 

16 (E) any terrorist organization, as that 

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

18 of the Immigration and Nationality Act (8 

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

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

21 writings, recordings, and photographs, as those 

22 terms are defined by Federal Rule of Evidence 1001 

23 (28 U.S.C. App.). 

24 (4) FEDERAL ENTITY.—The term ‘‘Federal en25 tity’’ means an entity or employee of the judicial or 


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1 executive branch or an administrative agency of the 

2 Federal Government with the power to issue a sub3 poena or issue other compulsory process. 

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

5 means the gathering, preparing, collecting, 

6 photographing, recording, writing, editing, reporting, 

7 or publishing of news or information that concerns 

8 local, national, or international events or other mat9 ters of public interest for dissemination to the pub10 lic. 

Æ 


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