I 
109TH CONGRESS 
1ST SESSION H. R. 3323
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 
JULY 18, 2005
Mr. PENCE (for himself and Mr. BOUCHER) 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Free Flow of Informa-
tion Act of 2005’’. 
SEC. 2. CONDITIONS FOR COMPELLED DISCLOSURE. 
(a) CONDITIONS FOR COMPELLED DISCLOSURE.—A 
Federal entity may not compel a covered person to testify
or produce any document in any proceeding or in connec-
tion with any issue arising under Federal law unless a 
court determines by clear and convincing evidence, after 
providing notice and an opportunity to be heard to the 
covered person—
(1) that the party seeking to compel production 
of such testimony or document has unsuccessfully 
attempted to obtain such testimony or document 
from all persons from which such testimony or docu-
ment could reasonably be obtained other than a cov-
ered person; 
(2) that—
(A) in a criminal investigation or prosecu-
tion, based on information obtained from a per-
son other than a covered person—
(i) there are reasonable grounds to be-
lieve that a crime has occurred; and 
(ii) the testimony or document sought 
is essential to the investigation, prosecu-
tion, or defense; or 
(B) in a matter other than a criminal in-
vestigation or prosecution, based on information 
obtained from a person other than a covered 
person, the testimony or document sought is es-
sential to a dispositive issue of substantial im-
portance to that matter; and 
(3) in any matter in which the testimony or 
document sought could reveal the identity of a 
source of information or include any information 
that could reasonably be expected to lead to the dis-
covery of the identity of such a source, that—
(A) disclosure of the identity of such a 
source is necessary to prevent imminent and ac-
tual harm to national security; 
(B) compelled disclosure of the identity of 
such a source would prevent such harm; and 
(C) the harm sought to be redressed by re-
quiring disclosure clearly outweighs the public 
interest in protecting the free flow of informa-
tion. 
(b) LIMITATIONS ON CONTENT OF INFORMATION.—
The content of any testimony or document that is com-
pelled under subsection (a) shall, to the extent possible—
(1) be limited to the purpose of verifying pub-
lished information or describing any surrounding cir-
cumstances relevant to the accuracy of such pub-
lished information; and 
(2) be narrowly tailored in subject matter and 
period of time covered.
SEC. 3. COMPELLED DISCLOSURE PERMITTED. 
Notwithstanding any provision of section 2, in any 
proceeding or in connection with any issue arising under 
Federal law, a Federal entity may compel a covered person 
to produce any testimony or document that consists only 
of commercial or financial information that is not related 
to news gathering or the dissemination of news and infor-
mation by the covered person. 
SEC. 4. COMPELLED DISCLOSURE FROM THIRD PARTIES. 
(a) CONDITIONS FOR COMPELLED DISCLOSURE.—
Section 2 shall apply to any testimony or document that 
a third party or a Federal entity seeks from a communica-
tions service provider if such testimony or document con-
sists of any record, information, or other communication 
that relates to a business transaction between a commu-
nications service provider and a covered person. 
(b) NOTICE AND OPPORTUNITY PROVIDED TO COV-
ERED PERSONS.—A court may compel the testimony or 
disclosure of a document under this section only after the 
party seeking such a document provides the covered per-
son who is a party to the business transaction described 
in subsection (a)—
(1) notice of the subpoena or other compulsory 
request for such testimony or disclosure from the 
communications service provider not later than the
time at which such subpoena or request is issued to 
the communications service provider; and 
(2) an opportunity to be heard before the court 
before the time at which the testimony or disclosure 
is compelled. 
(c) EXCEPTION TO NOTICE REQUIREMENT.—Notice 
under subsection (b)(1) may be delayed only if the court 
determines by clear and convincing evidence that such no-
tice would pose a substantial threat to the integrity of a 
criminal investigation. 
SEC. 5. DEFINITIONS. 
In this Act: 
(1) COMMUNICATIONS
SERVICE
PROVIDER.—
The term ‘‘communications service provider’’—
(A) means any person that transmits infor-
mation of the customer’s choosing by electronic 
means; and 
(B) includes a telecommunications carrier, 
an information service provider, an interactive 
computer service provider, and an information 
content provider (as such terms are defined in 
sections 3 and 230 of the Communications Act 
of 1934 (47 U.S.C. 153, 230)). 
(2) COVERED
PERSON.—The term ‘‘covered 
person’’ means—