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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Free Flow of Informa-
tion Act of 2009’’. 
SEC. 2. COMPELLED DISCLOSURE FROM COVERED PER-
SONS. 
(a) CONDITIONS FOR COMPELLED DISCLOSURE.—In 
any matter arising under Federal law, a Federal entity 
may not compel a covered person to provide testimony or 
produce any document related to information obtained or 
created by such covered person as part of engaging in 
journalism, unless a court determines by a preponderance 
of the evidence, after providing notice and an opportunity 
to be heard to such covered person— 
(1) that the party seeking to compel production 
of such testimony or document has exhausted all 
reasonable alternative sources (other than the cov-
ered person) of the testimony or document; 
(2) that— 
(A) in a criminal investigation or prosecu-
tion, based on information obtained from a per-
son other than the covered person— 
(i) there are reasonable grounds to be-
lieve that a crime has occurred; and 
(ii) the testimony or document sought 
is critical to the investigation or prosecu-
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tion or to the defense against the prosecu-
tion; or 
(B) in a matter other than a criminal in-
vestigation or prosecution, based on information 
obtained from a person other than the covered 
person, the testimony or document sought is 
critical to the successful completion of the mat-
ter; 
(3) in the case that the testimony or document 
sought could reveal the identity of a source of infor-
mation or include any information that could reason-
ably be expected to lead to the discovery of the iden-
tity of such a source, that— 
(A) disclosure of the identity of such a 
source is necessary to prevent, or to identify 
any perpetrator of, an act of terrorism against 
the United States or its allies or other signifi-
cant and specified harm to national security 
with the objective to prevent such harm; 
(B) disclosure of the identity of such a 
source is necessary to prevent imminent death 
or significant bodily harm with the objective to 
prevent such death or harm, respectively; 
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(C) disclosure of the identity of such a 
source is necessary to identify a person who has 
disclosed— 
(i) a trade secret, actionable under 
section 1831 or 1832 of title 18, United 
States Code; 
(ii) individually identifiable health in-
formation, as such term is defined in sec-
tion 1171(6) of the Social Security Act (42 
U.S.C. 1320d(6)), actionable under Fed-
eral law; or 
(iii) nonpublic personal information, 
as such term is defined in section 509(4) 
of the Gramm-Leach-Biley Act (15 U.S.C. 
6809(4)), of any consumer actionable 
under Federal law; or 
(D)(i) disclosure of the identity of such a 
source is essential to identify in a criminal in-
vestigation or prosecution a person who without 
authorization disclosed properly classified infor-
mation and who at the time of such disclosure 
had authorized access to such information; and 
(ii) such unauthorized disclosure has 
caused or will cause significant and articulable 
harm to the national security; and 
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(4) that the public interest in compelling disclo-
sure of the information or document involved out-
weighs the public interest in gathering or dissemi-
nating news or information. 
(b) AUTHORITY TO CONSIDER NATIONAL SECURITY 
INTEREST.—For purposes of making a determination 
under subsection (a)(4), a court may consider the extent 
of any harm to national security. 
(c) LIMITATIONS ON CONTENT OF INFORMATION.— 
The content of any testimony or document that is com-
pelled under subsection (a) shall— 
(1) not be overbroad, unreasonable, or oppres-
sive and, as appropriate, be limited to the purpose 
of verifying published information or describing any 
surrounding circumstances relevant to the accuracy 
of such published information; and 
(2) be narrowly tailored in subject matter and 
period of time covered so as to avoid compelling pro-
duction of peripheral, nonessential, or speculative in-
formation. 
(d) RULE OF CONSTRUCTION.—Nothing in this Act 
shall be construed as applying to civil defamation, slander, 
or libel claims or defenses under State law, regardless of 
whether or not such claims or defenses, respectively, are 
raised in a State or Federal court. 
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(e) 
EXCEPTION
RELATING
TO
CRIMINAL
OR 
TORTIOUS CONDUCT.—The provisions of this section shall 
not prohibit or otherwise limit a Federal entity in any 
matter arising under Federal law from compelling a cov-
ered person to disclose any information, record, document, 
or item obtained as the result of the eyewitness observa-
tion by the covered person of alleged criminal conduct or 
as the result of the commission of alleged criminal or 
tortious conduct by the covered person, including any 
physical evidence or visual or audio recording of the con-
duct, if a Federal court determines that the party seeking 
to compel such disclosure has exhausted all other reason-
able efforts to obtain the information, record, document, 
or item, respectively, from alternative sources. The pre-
vious sentence shall not apply, and subsections (a) and 
(b) shall apply, in the case that the alleged criminal con-
duct observed by the covered person or the alleged crimi-
nal or tortious conduct committed by the covered person 
is the act of transmitting or communicating the informa-
tion, record, document, or item sought for disclosure. 
SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS 
SERVICE PROVIDERS. 
(a) CONDITIONS FOR COMPELLED DISCLOSURE.— 
With respect to testimony or any document consisting of 
any record, information, or other communication that re-
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lates to a business transaction between a communications 
service provider and a covered person, section 2 shall apply 
to such testimony or document if sought from the commu-
nications service provider in the same manner that such 
section applies to any testimony or document sought from 
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 
involved determines by clear and convincing evidence that 
such notice would pose a substantial threat to the integrity 
of a criminal investigation. 
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SEC. 4. 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 a person who regularly gathers, pre-
pares, collects, photographs, records, writes, edits, 
reports, or publishes news or information that con-
cerns local, national, or international events or other 
matters of public interest for dissemination to the 
public for a substantial portion of the person’s liveli-
hood or for substantial financial gain and includes a 
supervisor, employer, parent, subsidiary, or affiliate 
of such covered person. Such term shall not in-
clude— 
(A) any person who is a foreign power or 
an agent of a foreign power, as such terms are 
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defined in section 101 of the Foreign Intel-
ligence Surveillance Act of 1978 (50 U.S.C. 
1801); 
(B) any organization designated by the 
Secretary of State as a foreign terrorist organi-
zation in accordance with section 219 of the 
Immigration and Nationality Act (8 U.S.C. 
1189); 
(C) any person included on the Annex to 
Executive Order No. 13224, of September 23, 
2001, and any other person identified under 
section 1 of that Executive order whose prop-
erty and interests in property are blocked by 
that section; 
(D) any person who is a specially des-
ignated terrorist, as that term is defined in sec-
tion 595.311 of title 31, Code of Federal Regu-
lations (or any successor thereto); or 
(E) any terrorist organization, as that 
term is defined in section 212(a)(3)(B)(vi)(II) 
of the Immigration and Nationality Act (8 
U.S.C. 1182(a)(3)(B)(vi)(II)). 
(3) DOCUMENT.—The term ‘‘document’’ means 
writings, recordings, and photographs, as those 
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terms are defined by Federal Rule of Evidence 1001 
(28 U.S.C. App.). 
(4) FEDERAL ENTITY.—The term ‘‘Federal en-
tity’’ means an entity or employee of the judicial or 
executive branch or an administrative agency of the 
Federal Government with the power to issue a sub-
poena or issue other compulsory process. 
(5) 
JOURNALISM.—The 
term 
‘‘journalism’’ 
means 
the 
gathering, 
preparing, 
collecting, 
photographing, recording, writing, editing, reporting, 
or publishing of news or information that concerns 
local, national, or international events or other mat-
ters of public interest for dissemination to the pub-
lic. 
Passed the House of Representatives March 31, 
2009. 
Attest: 
LORRAINE C. MILLER, 
Clerk. 
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