Free Flow of Information Act of 2005 - Prohibits a federal entity from compelling a "covered person" (i.e., a newspaper, television broadcast station, wire service, or other media outlet, and specified employees and contractors) to testify or produce any document unless a court determines that: (1) the party seeking to compel has unsuccessfully attempted to obtain such testimony or document from all other non-covered persons; (2) in a criminal matter, there are reasonable grounds to believe a crime has occurred and the testimony or document sought is essential to the investigation, prosecution, or defense of the crime; (3) in a non-criminal matter, the testimony or document is essential to a dispositive issue of substantial importance; and (4) in any matter in which testimony or a document could reveal the source's identity, disclosure is necessary to prevent imminent and actual harm to national security and such harm outweighs the public interest in protecting the free flow of information.
Requires the content of compelled testimony or documents to be limited and narrowly tailored. Exempts certain commercial or financial information.
Makes this Act applicable to testimony or documents that a third party or federal entity seeks from a communications service provider relating to business transactions with a covered person. Sets forth notice requirements. Permits a court to delay notice to a covered person upon determining that such notice would pose a substantial threat to the integrity of a criminal investigation.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3323 Introduced in House (IH)]
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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Flow of Information 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 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--
(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 document could reasonably be obtained other than a
covered person;
(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
(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; 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 discovery of the identity of such a source, that--
(A) disclosure of the identity of such a source is
necessary to prevent imminent and actual 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 requiring
disclosure clearly outweighs the public interest in
protecting the free flow of information.
(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.
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 information
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 communications service provider if such testimony or document
consists of any record, information, or other communication that
relates to a business transaction between a communications service
provider and a covered person.
(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 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 notice 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 information 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) 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 in print or electronic
form;
(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 to the extent that such parent, subsidiary, or
affiliate is engaged in news gathering or the
dissemination of news and information; or
(C) an employee, contractor, or other person who
gathers, edits, photographs, records, prepares, or
disseminates news or information for such an entity.
(3) Document.--The term ``document'' means writings,
recordings, and photographs, as those terms are defined by
Federal Rule of Evidence 1001 (28 U.S.C. App.).
(4) Federal entity.--The term ``Federal entity'' 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 subpoena or provide other compulsory process.
(5) Third party.--The term ``third party'' means a person
other than a covered person.
<all>
Introduced in House
Introduced in House
Sponsor introductory remarks on measure. (CR H5969)
Referred to the House Committee on the Judiciary.
Sponsor introductory remarks on measure. (CR H877-878)
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