HR 851: The Free Flow of Information Act of 2005

Section-by-Section Analysis

Prepared by Newspaper Association of America

SEC. 1. SHORT TITLE

This Act may be cited as the “Free Flow of Information Act of 2005.”

This Act is intended to preserve the free flow of information to the public while protecting legitimate Government interests in law enforcement and civil justice.

To ensure that the Act applies standards that are time-proven to protect legitimate and important interests in law enforcement and fair administration of civil justice, the Act in large part relies on the principles and text of the U.S. Department of Justice’s Policy With Regard to the Issuance of Subpoenas to the News Media, 28 C.F.R. § 50.10 (the “DOJ Guidelines”). The DOJ Guidelines were adopted in 1973 and have been in continuous operation for more than 30 years. They set standards that the Government must meet before the Department of Justice can request the issuance of a subpoena against the news media in any Government civil or criminal case.

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 providing notice and an opportunity to be heard to the covered person—

The Act is meant to apply to any Federal entity that can compel testimony or the production of documents. It does not, however, preempt any of the 31 current State shield laws or the common law reporter’s privilege that has developed under State law. It also is not intended to interfere with the practice of Federal courts sitting in diversity jurisdiction to apply, under Federal Rule of Evidence 501, the shield law that would be applied by a State court hearing the same case under State law.

To ensure that courts require the Government or the moving party to make a serious and documented showing of need for the testimony or documents sought from a covered entity, this section uses the well-established “clear and convincing evidence” standard. This standard is familiar to Federal courts, which have used the standard for some 40 years in connection with defamation claims and substantially longer in connection with other types of criminal and civil cases. It also provides that a covered person must have effective notice and an opportunity to be heard.

(1) that the entity has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could

reasonably be obtained other than a covered person; and

This section applies the familiar “exhaustion” requirement on any request to obtain testimony or documents from the media. It is taken from the DOJ Guidelines’ sections restricting subpoenas in civil and criminal cases, which require the party seeking to compel testimony or subpoena documents to “have unsuccessfully attempted to obtain the information from alternative nonmedia sources.” 28 C.F.R. § 50.10(f)(3). This section incorporates the qualifier “from which such testimony or document could reasonably be obtained,” which is based on 28 C.F.R. § 50.10(b) (“All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media”). This standard also is consistent with the Federal common law that has developed in this area in the past 30 years

(2) that—

(A) in a criminal investigation or prosecution, based on information obtained from a person other than a covered person—

(i) there are reasonable grounds to believe that a crime has occurred; and

(ii) the testimony or document sought is essential to the investigation, prosecution, or defense; or

The standard used here for investigations or criminal cases, taken from the DOJ Guidelines found at 28 C.F.R. § 50.10(f)(1), ensures that the information sought is central to the investigation or case. The protection that there must be “reasonable grounds to believe that a crime has occurred” is an important safeguard taken directly from the DOJ Guidelines. Id. The DOJ Guidelines also provide that this limitation is critical to ensuring that a “subpoena should not be used to obtain peripheral, nonessential, or speculative information.” Id.

(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than a covered person, the testimony or document sought is essential to a dispositive issue of substantial importance to that matter.

This section applies the DOJ Guidelines standard for civil litigation found at 28 C.F.R. § 50.10(f)(2) to all civil cases, administrative and legislative matters, and other proceedings that are not criminal investigations or prosecutions. This standard is based on the familiar policy consideration that any information sought must be “essential” to the case. As provided in the DOJ Guidelines, further, subpoenas against the media should only be sought in cases “of substantial importance.” Id. This standard is, for practical purposes, identical to the common law that has developed in the Federal courts over the past 30 years, which generally provides that the information sought must be “necessary” to a party’s claim or defense and must go to the “heart of the case.”

(b) LIMITATIONS ON CONTENT OF INFORMATION.—

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

(1) 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.

This section is taken directly from the DOJ Guidelines, 28 C.F.R § 50.10(f)(4), which provides that subpoenas generally should be limited to verifying published material. This principle from the DOJ Guidelines properly recognizes that the verification of information already made public is less intrusive and thus more protective of the free flow of information than requiring a covered entity to make public information that is internal or confidential. The DOJ Guidelines also provide that subpoenas should “be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material,” 28 C.F.R § 50.10(f)(6), a principle carried forward in this section.

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 newsgathering or the dissemination of news and information by the covered person.

To ensure that this Act is not read to restrict discovery in routine commercial disputes involving covered entities, this section provides that the Act’s standards will not apply to such requests. It is based on the DOJ Guidelines, 28 C.F.R. § 50.10(m).

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 person to disclose—

(1) the identity of a source of information—

(A) from whom the covered person obtained 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.

This section provides that no Federal entity may compel disclosure of the identity of a confidential source. As is the case with Section 2, it is not intended to preempt State statutory or common law. The public interest in the flow of information is particularly strong when the information is provided to reporters by confidential sources. Without protection for the identity of these sources, many matters of crucial public importance would not become publicly known. Therefore Section 4 provides heightened protection for the identities of confidential sources. The protection of the identity of confidential sources is essential not only to particular cases in which an understanding of confidentiality exists, but to future cases in which sensitive information may be provided to a covered entity. Protection in current cases reassures future sources that promises of confidentiality will be secure, and that covered entities will not be annexed as an investigative arm of the Government or used by private litigants to further their claims. The section also recognizes that protecting the confidentiality of a source from being revealed through testimony is a hollow protection without a parallel protection for other information held by covered persons that could reveal the identity of confidential sources. Accordingly, that category of information is provided parallel protection.

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 relates 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.

The DOJ Guidelines recognize that it is important to protect not only sensitive information held by the news media, but information held by companies outside the news media that nonetheless could reveal confidential sources and other information that is otherwise protected. In particular, the identity of confidential and other sources could be easily determined by obtaining the telephone, email and Internet records of covered entities, thus undermining the protections provided by Section 2 and Section 4 of the Act. Accordingly, the DOJ Guidelines were amended in 1980 to provide a broad range of protections to information held by telephone companies. DOJ Guidelines, 28 C.F.R. § 50.10(g). The DOJ Guidelines apply the same standard used to protect information held internally by the news media to attempts to obtain these records held by outside companies. The same approach has been adopted by this section.

(b) NOTICE AND OPPORTUNITY PROVIDED TO COVERED 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 person 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.

The DOJ Guidelines recognize that the news media must have effective notice and a meaningful opportunity to be heard before a third party is required to provide information concerning the news media to the Government. 28 C.F.R. § 50.10(g)(1)(3). Often, the entity to which a subpoena is directed has no incentive to resist disclosure. Such an entity usually will have no ability to know that records sought concern a covered person, and privacy provisions in Federal law may make it impossible for such an entity to apprise the subject of a subpoena about the scope and nature of materials requested by a subpoena. Accordingly, this section requires that notice of any subpoena or process to a third party that concerns a covered person must be provided to the covered person at the time that subpoena or process is issued.

(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 notice would pose a substantial threat to the integrity of a

criminal investigation.

This section recognizes that in certain investigations providing notice to a covered person before information is sought from a third party may threaten the integrity of a criminal investigation. It thus adopts the standard set out in the DOJ Guidelines for the delay of such notice in the few extraordinary cases in which a delay is warranted. 28 C.F.R § 50.10(g)(3).

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.

This section is meant to recognize the reality that covered persons often continue to gather and publish information concerning matters in which testimony or documents is sought from them. It thus provides that continued publication of information relating to these matters will not constitute a waiver of any arguments the covered person has made against compelled disclosure. Without such a section, the public could be deprived of a covered person’s continued publication of information relating to these issues, which often occurs in follow-up stories and continued coverage of news events.

SEC. 7. DEFINITIONS.

In this Act:

(1) The term ‘‘covered person’’ means—

(A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that—

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

This section is meant to apply the protections of the Act to the entities that are most directly responsible for ensuring the free flow of information to the American public. Newspapers, magazines, book publishers, television networks and stations, cable and satellite networks, channels and programming services, news agencies and wire services all make essential daily contributions toward the free flow of information. These entities continue to change their means of reaching the public as technology develops, and this section recognizes that Internet and other electronic publications by these entities will be protected (along with publication in other media that may not yet be deployed).

This definition is not meant to extend broadly to protect any individual operating a personal website or web log (“blog”) because of the potential overbreadth of restricting disclosure of information from the millions of Americans using the Internet to communicate personal ideas and information.

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

Covered persons rely not only on their employees for the information that they will disseminate to the public, but also on individuals who operate as “freelancers” under contract with covered persons. This section provides that these freelancers are encompassed by the definition of “covered person.” It also provides that “other persons” who gather information “for” a covered person may be covered if the court finds that they should be treated as covered persons, thus permitting a court the discretion (but not the requirement) to protect disclosure from freelance journalists operating without a firm contractual relationship with a covered person.

(2) The term ‘‘document’’ means writings, recordings, and photographs, as those terms are defined by Federal Rule of Evidence 1001 (28 U.S.C.

App.).

This definition provides that the term “document” should be interpreted as broadly as possible to encompass any types of writing, recording or photograph covered by the Federal Rules of Evidence and the Federal Rules of Civil Procedure in any form whatsoever -- print, electronic or ephemeral -- that could be sought from a covered person.

(3) The term ‘‘Federal entity’’ means an entity or employee of the judicial, legislative, or executive branch of the Federal Government with the power to

issue a subpoena or provide other compulsory process.

The definition of “Federal entities” is meant to be read broadly so that any instrumentality of the Federal Government that has the power to compel testimony or seek documents from covered persons in any forum or proceeding whatsoever is subject to the Act. This definition would encompass Federal courts, administrative agencies, legislative bodies, executive bodies and any other Federal tribunal, commission or body.

(4) The term ‘‘third party’’ means a person other than a covered person.

This definition recognizes that a broad array of entities doing business with covered persons could hold information from which the identity of confidential sources could be garnered. It thus defines a “third party” for purposes of Section 5 as any entity other than a covered person.