I 
109TH CONGRESS 
1ST SESSION 
H. R. 581
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 2, 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.—No 
Federal entity may compel a covered person to testify or
produce any document in any proceeding or in connection 
with any issue arising under Federal law unless a court 
determines by clear and convincing evidence, after pro-
viding notice and an opportunity to be heard to the cov-
ered person—
(1) that the entity has unsuccessfully attempted 
to obtain such testimony or document from all per-
sons from which such testimony or document could 
reasonably be obtained other than a covered person; 
and 
(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.
(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. COMMERCIAL OR FINANCIAL INFORMATION. 
The provisions of section 2 do not apply to a request 
by a Federal entity for any testimony or document that 
consists of only commercial or financial information unre-
lated to newsgathering or news and information dissemi-
nation by a covered person. 
SEC. 4. COMPELLED DISCLOSURE PROHIBITED. 
Notwithstanding any provision of section 2, in any 
proceeding or in connection with any issue arising under 
Federal law, no Federal entity may compel a covered per-
son to disclose—
(1) the identity of a source of information—
(A) from whom the covered person ob-
tained information; and 
(B) who the covered person believes to be 
a confidential source; or
(2) any information that could reasonably be 
expected to lead to the discovery of the identity of 
such a source. 
SEC. 5. COMPELLED DISCLOSURE FROM THIRD PARTIES. 
(a) CONDITIONS FOR COMPELLED DISCLOSURE.—
The provisions of sections 2, 3, and 4 shall apply to any 
testimony or document that a Federal entity seeks from 
a third party if such testimony or document consists of 
any record, information, or other communication that re-
lates to a business transaction between such third party 
and a covered person. Such record, information, or other 
communication includes any telephone record or other 
record held by a telecommunications service provider, 
Internet service provider, or operator of an interactive 
computer service for a business purpose. 
(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 
third party not later than the time at which such 
subpoena or request is issued to the third party; 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. 6. ACTIVITIES NOT CONSTITUTING A WAIVER. 
The publication or dissemination of any testimony or 
document (or portion of such testimony or document) 
sought under section 2 shall not waive the requirements 
of such section. The publication or dissemination of any 
testimony or document (or portion of such testimony or 
document), identity, or information described in section 4 
shall not waive the prohibition described in such section. 
SEC. 7. DEFINITIONS. 
In this Act: 
(1) The term ‘‘covered person’’ means—
(A) an entity that disseminates informa-
tion by print, broadcast, cable, satellite, me-
chanical, photographic, electronic, or other 
means and that—
(i) publishes a newspaper, book, mag-
azine, or other periodical;