,,ii #aacth ,,congress #ast ,session ,s4 #ihg ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,may #af1 #bjac ,mr4 ,schumer 7for himself and ,mr4 ,graham7 introduced the following bill2 which was read twice and 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 media4 #a4 ,short title ,this ,act may be cited as the ,free ,flow of ,information ,act of #bjac4 #b4 ,compelled disclosure from covered persons 7a7 ,conditions for compelled disclosure ,in any proceeding or in connection with any issue arising under ,federal law1 a ,federal entity may not compel a covered person to comply with a subpoena1 court order1 or other compulsory legal process seeking to compel the disclosure of protected information1 unless a ,federal court in the jurisdiction where the subpoena1 court order1 or other compulsory legal process has been or would be issued determines1 after providing notice and an opportunity to be heard to such covered person-- 7#a7 that the party seeking to compel disclosure of the protected information has exhausted all reasonable alternative sources 7other than a covered person7 of the protected information2 and 7#b7 that-- 7,a7 in a criminal investigation or prosecution-- 7i7 if the party seeking to compel disclosure is the ,federal ,government1 based on public information or information obtained from a source other than the covered person1 there are reasonable grounds to believe that a crime has occurred2 7ii7 based on public information or information obtained from a source other than the covered person1 there are reasonable grounds to believe that the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution2 7iii7 the ,attorney ,general certifies that the decision to request compelled disclosure was made in a manner consistent with section #ej4aj of title #bh1 ,code of ,federal ,regulations1 if compelled disclosure is sought by a member of the ,department of ,justice in circumstances governed by section #ej4aj of title #bh1 ,code of ,federal ,regulations2 and 7iv7 the covered person has not established by clear and convincing evidence that disclosure of the protected information would be contrary to the public interest1 taking into account both the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information and the public interest in compelling disclosure 7including the extent of any harm to national security72 or 7,b7 in a matter other than a criminal investigation or prosecution1 based on public information or information obtained from a source other than the covered person-- 7i7 the protected information sought is essential to the resolution of the matter2 and 7ii7 the party seeking to compel disclosure of the protected information has established that the interest in compelling disclosure clearly outweighs the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information4 7b7 ,limitations on content of information ,a subpoena1 court order1 or other compulsory legal process seeking to compel the disclosure of protected information under subsection 7a7 shall1 to the extent possible1 be narrowly tailored in purpose1 subject matter1 and period of time covered so as to avoid compelling disclosure of peripheral1 nonessential1 or speculative information4 #c4 ,exception relating to criminal conduct 7a7 ,in general ,section #b shall not apply to any information1 record1 document1 or item obtained as the result of the eyewitness observations of1 or obtained during the course of1 alleged criminal conduct by the covered person1 including any physical evidence or visual or audio recording of the conduct4 7b7 ,exception ,this section shall not apply1 and1 subject to sections #d and #e1 section #b shall apply1 if the alleged criminal conduct is the act of communicating the documents or information at issue4 #d4 ,exception to prevent death1 kidnapping1 substantial bodily injury1 sex offenses against minors1 or incapacitation or destruction of critical infrastructure ,section #b shall not apply to any protected information that is reasonably necessary to stop1 prevent1 or mitigate a specific case of-- 7#a7 death2 7#b7 kidnapping2 7#c7 substantial bodily harm2 7#d7 conduct that constitutes a criminal offense that is a specified offense against a minor 7as those terms are defined in section #aaa of the ,adam ,walsh ,child ,protection and ,safety ,act of #bjjf 7#db ,u4,s4,c4 #afiaa771 or an attempt or conspiracy to commit such a criminal offense2 or 7#e7 incapacitation or destruction of critical infrastructure 7as defined in section #ajaf7;e7 of the ,,usa ,,patriot ,act 7#db ,u4,s4,c4 #eaie;c7e7774 #e4 ,exception to prevent terrorist activity or harm to the national security 7a7 ,in general ,section #b shall not apply to any protected information if-- 7#a7 the party seeking to compel disclosure is the ,federal ,government2 and 7#b7 7,a7 in a criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information1 the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would materially assist the ,federal ,government in preventing or mitigating-- 7i7 an act of terrorism2 or 7ii7 other acts that are reasonably likely to cause significant and articulable harm to national security2 or 7,b7 in any other criminal investigation or prosecution1 the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would materially assist the ,federal ,government in preventing1 mitigating1 or identifying the perpetrator of-- 7i7 an act of terrorism2 or 7ii7 other acts that have caused or are reasonably likely to cause significant and articulable harm to national security4 7b7 ,deference ,in assessing the existence or extent of the harm described in subsection 7a71 a ,federal court shall give appropriate deference to a specific factual showing submitted to the court by the head of any executive branch agency or department concerned4 7c7 ,relationship to section #b ,subsection 7a7 shall not apply1 and1 subject to sections #c and #d1 section #b shall apply1 to any criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information other than one in which the protected information is sought by the ,federal ,government to prevent or mitigate the harm specified in subsection 7a77#b77;,a74 ,in considering the extent of any harm to national security when applying section #b to such cases1 a ,federal court shall give appropriate deference to any specific factual showing submitted to the court by the head of any executive branch agency or department concerned4 7d7 ,subsequent unlawful disclosure ,the potential for a subsequent unlawful disclosure of information by the source sought to be identified shall not1 by itself and without any showing of additional facts beyond such potential disclosure1 be sufficient to establish that compelled disclosure of the protected information would materially assist the ,federal ,government in preventing or mitigating-- 7#a7 an act of terrorism2 or 7#b7 other acts that are reasonably likely to cause significant and articulable harm to national security4 #f4 ,compelled disclosure from communications service providers 7a7 ,conditions for compelled disclosure 7#a7 ,in general ,except as provided in paragraph 7#b71 if any document or other information from the account of a person who is known to be1 or reasonably likely to be1 a covered person is sought from a communications service provider1 sections #b through #e shall apply in the same manner that such sections apply to any document or other information sought from a covered person4 7#b7 ,exception ,if any document or other information from the account of a person who is known to be1 or reasonably likely to be1 a covered person is sought from a communications service provider under section #bgji of title #ah1 ,united ,states ,code1 the provisions of sections #b through #e governing criminal investigations and prosecutions shall apply in the same manner that such sections apply to any document or other information sought from a covered person in the course of a criminal investigation or prosecution1 except that clauses 7i7 and 7iii7 of section #b7;a77#b77;,a7 and the phrase particularly with reference to directly establishing guilt or innocence in section #b7;a77#b77;,a77ii7 shall not apply4 7b7 ,notice and opportunity provided to covered persons ,a ,federal court may compel the disclosure of a document or other information described in this section only after the covered person from whose account the document or other information is sought has been given-- 7#a7 notice from the party seeking the document or other information through a subpoena or other compulsory request1 not later than the time at which such subpoena or request is issued to the communications service provider2 and 7#b7 an opportunity to be heard before the court before compelling testimony or the disclosure of a document4 7c7 ,exception to notice requirement ,notice under subsection 7b77#a7 may be delayed for not more than #de days if the ,federal court involved determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation1 a national security investigation1 or intelligence gathering1 or that exigent circumstances exist4 ,this period may be extended by the court for an additional period of not more than #de days each time the court makes such a determination4 7d7 ,notice to communications service provider ,in all cases in which notice is required to be provided to the covered person under this section1 a copy of such notice shall be provided simultaneously to the communications service provider from whom disclosure is sought4 ,once it has received such notice1 the communications service provider shall not comply with the request for disclosure unless and until disclosure is either ordered by the court or authorized in writing by the covered person4 #g4 ,sources and work product produced without promise or agreement of confidentiality ,nothing in this ,act shall supersede1 dilute1 or preclude any law or court decision compelling or not compelling disclosure by a covered person or communications service provider of-- 7#a7 information identifying a source who provided information without a promise or agreement of confidentiality made by the covered person as part of engaging in journalism2 or 7#b7 records1 other information1 or contents of a communication obtained without a promise or agreement that such records1 other information1 or contents of a communication would be confidential4 #h4 ,procedures for review and appeal 7a7 ,conditions for ex parte review or submissions under seal ,with regard to any determination made by a ,federal court under this ,act1 upon a showing of good cause1 that ,federal court may receive and consider submissions from the parties in camera or under seal1 and if the court determines it is necessary1 ex parte4 7b7 ,contempt of court ,with regard to any determination made by a ,federal court under this ,act1 a ,federal court may find a covered person to be in civil or criminal contempt if the covered person fails to comply with an order of a ,federal court compelling disclosure of protected information4 7c7 ,to provide for timely determination ,with regard to any determination to be made by a ,federal court under this ,act1 that ,federal court1 to the extent practicable1 shall make that determination not later than #cj days after the date of receiving a motion requesting the court make that determination4 7d7 ,expedited appeal process 7#a7 ,in general ,the courts of appeal shall have jurisdiction-- 7,a7 of appeals by a ,federal entity or covered person of an interlocutory order of a ,federal court under this ,act2 and 7,b7 in an appeal of a final decision of a ,federal court by a ,federal entity or covered person1 to review any determination of a ,federal court under this ,act4 7#b7 ,expedition of appeals ,it shall be the duty of a ,federal court to which an appeal is made under this subsection to advance on the docket and to expedite to the greatest possible extent the disposition of that appeal4 #i4 ,rule of construction ,nothing in this ,act may be construed to-- 7#a7 preempt any law or claim relating to defamation1 slander1 or libel2 7#b7 modify the requirements of section #eeb;a of title #e1 ,united ,states ,code1 or ,federal laws or rules relating to grand jury secrecy 7except that this ,act shall apply in any proceeding and in connection with any issue arising under that section or the ,federal laws or rules relating to grand jury secrecy72 7#c7 create new obligations1 or affect or modify the authorities or obligations of a ,federal entity with respect to the acquisition or dissemination of information pursuant to the ,foreign ,intelligence ,surveillance ,act of #aigh 7#ej ,u4,s4,c4 #ahja et seq472 or 7#d7 preclude voluntary disclosure of information to a ,federal entity in a situation that is not governed by this ,act4 #aj4 ,audit 7a7 ,in general ,the ,inspector ,general of the ,department of ,justice shall perform a comprehensive audit of the use of this ,act during the period beginning on the date of enactment of this ,act and ending on ,december #ca1 #bjaf4 ,the audit shall include an examination of each instance in which a court failed to compel the disclosure of protected information under this ,act1 and whether this ,act has created any procedural impediments that have had a detrimental operational impact on the activities of the ,federal ,bureau of ,investigation4 7b7 ,report ,not later than ,june #cj1 #bjag1 the ,inspector ,general of the ,department of ,justice shall submit to the ,committee on the ,judiciary and the ,select ,committee on ,intelligence of the ,senate and the ,committee on the ,judiciary and the ,permanent ,select ,committee on ,intelligence of the ,house of ,representatives a report containing the results of the audit conducted under subsection 7a74 7c7 ,review ,not later than #cj days before the submission of the report under subsection 7b71 the ,inspector ,general of the ,department of ,justice shall provide the report to the ,attorney ,general and the ,director of ,national ,intelligence4 ,the ,attorney ,general or the ,director of ,national ,intelligence may provide such comments to be included in the report submitted under subsection 7b7 as the ,attorney ,general or the ,director of ,national ,intelligence may consider necessary4 7d7 ,form ,the report submitted under subsection 7b7 and any comments included under subsection 7c7 shall be in unclassified form1 but may include a classified annex4 #aa4 ,definitions ,in this ,act3 7#a7 ,communications service provider ,the term communications service provider-- 7,a7 means any person that transmits information of the customer's choosing by electronic means2 and 7,b7 includes a telecommunications carrier1 an information service provider1 an interactive computer service provider1 and an information content provider 7as such terms are defined in section #c or #bcj of the ,communications ,act of #aicd 7#dg ,u4,s4,c4 #aec and #bcj774 7#b7 ,covered person ,the term covered person-- 7,a7 means a person who-- 7i7 with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local1 national1 or international events or other matters of public interest1 regularly gathers1 prepares1 collects1 photographs1 records1 writes1 edits1 reports or publishes on such matters by-- 7,i7 conducting interviews2 7,,ii7 making direct observation of events2 or 7,,iii7 collecting1 reviewing1 or analyzing original writings1 statements1 communications1 reports1 memoranda1 records1 transcripts1 documents1 photographs1 recordings1 tapes1 materials1 data1 or other information whether in paper1 electronic1 or other form2 7ii7 has such intent at the inception of the process of gathering the news or information sought2 and 7iii7 obtains the news or information sought in order to disseminate the news or information by means of print 7including newspapers1 books1 wire services1 news agencies1 or magazines71 broadcasting 7including dissemination through networks1 cable1 satellite carriers1 broadcast stations1 or a channel or programming service for any such media71 mechanical1 photographic1 electronic1 or other means2 7,b7 includes a supervisor1 employer1 parent company1 subsidiary1 or affiliate of a person described in subparagraph 7,a72 and 7,c7 does not include any person who is or is reasonably likely to be-- 7i7 a foreign power or an agent of a foreign power1 as those terms are defined in section #aja of the ,foreign ,intelligence ,surveillance ,act of #aigh 7#ej ,u4,s4,c4 #ahja72 7ii7 a member or affiliate of a foreign terrorist organization designated under section #bai7;a7 of the ,immigration and ,nationality ,act 7#h ,u4,s4,c4 #aahi7;a772 7iii7 designated as a ,specially ,designated ,global ,terrorist by the ,department of the ,treasury under ,executive ,order ,no4 #acbbd 7#ej ,u4,s4,c4 #agja72 7iv7 a specially designated terrorist1 as that term is defined in section #eie4caa of title #ca1 ,code of ,federal ,regulations 7or any successor thereto72 7v7 a terrorist organization1 as that term is defined in section #bab7;a77#c77;,b77vi77,,ii7 of the ,immigration and ,nationality ,act 7#h ,u4,s4,c4 #aahb7;a77#c77;,b77vi77,,ii772 7vi7 committing or attempting to commit the crime of terrorism1 as that offense is defined in section #bcca7e7 or #bccb;b7g77#e7 of title #ah1 ,united ,states ,code2 7vii7 committing or attempting the crime of providing material support1 as that term is defined in section #bcci;,a7b77#a7 of title #ah1 ,united ,states ,code1 to a terrorist organization2 or 7viii7 aiding1 abetting1 or conspiring in illegal activity with a person or organization defined in clauses 7i7 through 7vii74 7#c7 ,document ,the term document means writings1 recordings1 and photographs1 as those terms are defined by rule #ajja of the ,federal ,rules of ,evidence 7#bh ,u4,s4,c4 ,app474 7#d7 ,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 process4 7#e7 ,properly classified information ,the term properly classified information means information that is classified in accordance with any applicable ,executive orders1 statutes1 or regulations regarding classification of information4 7#f7 ,protected information ,the term protected information means-- 7,a7 information identifying a source who provided information under a promise or agreement of confidentiality made by a covered person as part of engaging in journalism2 or 7,b7 any records1 contents of a communication1 documents1 or information that a covered person obtained or created-- 7i7 as part of engaging in journalism2 and 7ii7 upon a promise or agreement that such records1 contents of a communication1 documents1 or information would be confidential4