Free Flow of Information Act of 2011 - Prohibits a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government), in any matter arising under federal law, from compelling a covered person to testify or produce any document related to information obtained or created as part of engaging in journalism unless a court makes specified determinations by a preponderance of the evidence, including determinations that: (1) alternative sources have been exhausted; (2) the testimony or document sought is critical to the investigation, prosecution, or defense of a crime or the successful completion of a noncriminal matter; (3) disclosure of an information source's identity is necessary to prevent an act of terrorism, harm to national security, imminent death, significant bodily harm or to identify a person who has disclosed a trade secret, individually identifiable health information, or certain nonpublic personal information; and (4) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Allows a court, in making the last of those determinations, to consider the extent of any harm to national security.
Defines "covered person" as a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals.
Requires the content of compelled testimony or documents to be limited and narrowly tailored.
Prohibits this Act from being construed as applying to civil defamation, slander, or libel claims or defenses under state law.
Exempts certain criminal or tortious conduct.
Applies this Act to communications service providers with regard to testimony or any record, information, or other communication that relates to a business transaction between such providers and covered persons. 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 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2932 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 2932
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
September 14, 2011
Mr. Pence 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
2011''.
SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.
(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 covered person) of the testimony or
document;
(2) that--
(A) in a criminal investigation or prosecution,
based on information obtained from a person other than
the covered person--
(i) there are reasonable grounds to believe
that a crime has occurred; and
(ii) the testimony or document sought is
critical to the investigation or prosecution or
to the defense against the prosecution; or
(B) in a matter other than a criminal investigation
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 matter;
(3) in the case that 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, or to identify any perpetrator
of, an act of terrorism against the United States or
its allies or other significant 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;
(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
information, as such term is defined in section
1171(6) of the Social Security Act (42 U.S.C.
1320d(6)), actionable under Federal 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 investigation or
prosecution a person who without authorization
disclosed properly classified information 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
(4) that the public interest in compelling disclosure of
the information or document involved outweighs the public
interest in gathering or disseminating 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 compelled under subsection (a) shall--
(1) not be overbroad, unreasonable, or oppressive 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 production of
peripheral, nonessential, or speculative information.
(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.
(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 covered person to disclose any information, record, document, or item
obtained as the result of the eyewitness observation 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
conduct, if a Federal court determines that the party seeking to compel
such disclosure has exhausted all other reasonable efforts to obtain
the information, record, document, or item, respectively, from
alternative sources. The previous sentence shall not apply, and
subsections (a) and (b) shall apply, in the case that the alleged
criminal conduct observed by the covered person or the alleged criminal
or tortious conduct committed by the covered person is the act of
transmitting or communicating the information, 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 relates 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 communications
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 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 involved determines by clear
and convincing evidence that such notice would pose a substantial
threat to the integrity of a criminal investigation.
SEC. 4. 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
person who regularly gathers, prepares, collects, photographs,
records, writes, edits, reports, or publishes news or
information that concerns local, national, or international
events or other matters of public interest for dissemination to
the public for a substantial portion of the person's livelihood
or for substantial financial gain and includes a supervisor,
employer, parent, subsidiary, or affiliate of such covered
person. Such term shall not include--
(A) any person who is a foreign power or an agent
of a foreign power, as such terms are defined in
section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801);
(B) any organization designated by the Secretary of
State as a foreign terrorist organization 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 property and interests in property are
blocked by that section;
(D) any person who is a specially designated
terrorist, as that term is defined in section 595.311
of title 31, Code of Federal Regulations (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 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 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 matters of public interest for dissemination to
the public.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Courts, Commercial and Administrative Law.
Referred to the Subcommittee on the Constitution.
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