Library / Laws / 113th / s / S. 987 / Reported in Senate
II
Calendar No. 238
113th CONGRESS
1st Session
S. 987
[Report No. 113–118]
IN THE SENATE OF THE UNITED STATES
May 16, 2013Mr. Schumer (for himself, Mr. Graham, Mr. Tester, Ms. Klobuchar, Mr. Harkin, Mr. Bennet, Mrs. Murray, Mr. Udall of New Mexico, Mr. Baucus, Ms. Cantwell, Mrs. Boxer, Mr. Isakson, Ms. Baldwin, Mr. Blumenthal, Mr. Blunt, Mrs. Gillibrand, Mrs. McCaskill, Mr. Coons, Ms. Hirono, and Mr. Leahy) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
November 6, 2013Reported by Mr. Leahy,
with an amendmentStrike out all after the enacting clause and insert
the part printed in italic
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.
1.
Short title
This Act may be cited as the
Free Flow of Information Act of
2013.
2.
Compelled
disclosure from covered persons
(a)
Conditions for
compelled disclosure
In any
proceeding or in connection with any issue arising under Federal law, a Federal
entity may not compel a covered person to comply with a subpoena, court order,
or other compulsory legal process seeking to compel the disclosure of protected
information, unless a Federal court in the jurisdiction where the subpoena,
court order, or other compulsory legal process has been or would be issued
determines, after providing notice and an opportunity to be heard to such
covered person—
(1) that the party
seeking to compel disclosure of the protected information has exhausted all
reasonable alternative sources (other than a covered person) of the protected
information; and
(2) that—
(A) in a criminal
investigation or prosecution—
(i) if the party
seeking to compel disclosure is the Federal Government, based on public
information or information obtained from a source other than the covered
person, there are reasonable grounds to believe that a crime has
occurred;
(ii) based on public
information or information obtained from a source other than the covered
person, there are reasonable grounds to believe that the protected information
sought is essential to the investigation or prosecution or to the defense
against the prosecution;
(iii) the Attorney
General certifies that the decision to request compelled disclosure was made in
a manner consistent with section 50.10 of title 28, Code of Federal
Regulations, if compelled disclosure is sought by a member of the Department of
Justice in circumstances governed by section 50.10 of title 28, Code of Federal
Regulations; and
(iv) the covered
person has not established by clear and convincing evidence that disclosure of
the protected information would be contrary to the public interest, 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 (including the extent of any harm to national
security); or
(B) in a matter other
than a criminal investigation or prosecution, based on public information or
information obtained from a source other than the covered person—
(i) the protected
information sought is essential to the resolution of the matter; and
(ii) 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 information.
(b)
Limitations on
content of information
A subpoena, court order, or other
compulsory legal process seeking to compel the disclosure of protected
information under subsection (a) shall, to the extent possible, be narrowly
tailored in purpose, subject matter, and period of time covered so as to avoid
compelling disclosure of peripheral, nonessential, or speculative
information.
3.
Exception
relating to criminal conduct
(a)
In
general
Section 2 shall not
apply to any information, record, document, or item obtained as the result of
the eyewitness observations of, or obtained during the course of, alleged
criminal conduct by the covered person, including any physical evidence or
visual or audio recording of the conduct.
(b)
Exception
This
section shall not apply, and, subject to sections 4 and 5, section 2 shall
apply, if the alleged criminal conduct is the act of communicating the
documents or information at issue.
4.
Exception to
prevent death, kidnapping, substantial bodily injury, sex offenses against
minors, or incapacitation or destruction of critical
infrastructure
Section 2 shall
not apply to any protected information that is reasonably necessary to stop,
prevent, or mitigate a specific case of—
(1) death;
(2) kidnapping;
(3) substantial bodily
harm;
(4) conduct that
constitutes a criminal offense that is a specified offense against a minor (as
those terms are defined in section 111 of the Adam Walsh Child Protection and
Safety Act of 2006 (42 U.S.C. 16911)), or an attempt or conspiracy to commit
such a criminal offense; or
(5) incapacitation or destruction of critical
infrastructure (as defined in section 1016(e) of the USA PATRIOT Act (42 U.S.C.
5195c(e))).
5.
Exception to
prevent terrorist activity or harm to the national security
(a)
In
general
Section 2 shall not
apply to any protected information if—
(1) the party seeking to compel disclosure is
the Federal Government; and
(2)
(A) in a criminal
investigation or prosecution of the allegedly unlawful disclosure of properly
classified information, 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—
(i) an act of
terrorism; or
(ii) other acts that
are reasonably likely to cause significant and articulable harm to national
security; or
(B) in any other
criminal investigation or prosecution, 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,
mitigating, or identifying the perpetrator of—
(i) an act of
terrorism; or
(ii) other acts that
have caused or are reasonably likely to cause significant and articulable
harm to national security.
(b)
Deference
In
assessing the existence or extent of the harm described in subsection (a), 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
concerned.
(c)
Relationship to
section 2
Subsection (a) shall not apply, and, subject to
sections 3 and 4, section 2 shall apply, 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
(a)(2)(A). In considering the extent of any harm to national security when
applying section 2 to such cases, 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 concerned.
(d)
Subsequent
unlawful disclosure
The potential for a subsequent unlawful
disclosure of information by the source sought to be identified shall not, by
itself and without any showing of additional facts beyond such potential
disclosure, be sufficient to establish that compelled disclosure of the
protected information would materially assist the Federal Government in
preventing or mitigating—
(1) an act of
terrorism; or
(2) other acts that
are reasonably likely to cause significant and articulable harm to national
security.
6.
Compelled
disclosure from communications service providers
(a)
Conditions for
compelled disclosure
(1)
In
general
Except as provided in paragraph (2), if any document or
other information from the account of a person who is known to be, or
reasonably likely to be, a covered person is sought from a communications
service provider, sections 2 through 5 shall apply in the same manner that such
sections apply to any document or other information sought from a covered
person.
(2)
Exception
If
any document or other information from the account of a person who is known to
be, or reasonably likely to be, a covered person is sought from a
communications service provider under section 2709 of title 18, United States
Code, the provisions of sections 2 through 5 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 prosecution, except that clauses (i) and (iii) of
section 2(a)(2)(A) and the phrase particularly with reference to
directly establishing guilt or innocence in section 2(a)(2)(A)(ii)
shall not apply.
(b)
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—
(1) notice from the
party seeking the document or other information through a subpoena or other
compulsory request, 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 compelling testimony or the disclosure of a
document.
(c)
Exception to
notice requirement
Notice under subsection (b)(1) may be delayed
for not more than 45 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 investigation, a national security investigation, or
intelligence gathering, or that exigent circumstances exist. This period may be
extended by the court for an additional period of not more than 45 days each
time the court makes such a determination.
(d)
Notice to
communications service provider
In all cases in which notice is
required to be provided to the covered person under this section, a copy of
such notice shall be provided simultaneously to the communications service
provider from whom disclosure is sought. Once it has received such notice, 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 person.
7.
Sources and work
product produced without promise or agreement of confidentiality
Nothing in this Act shall supersede, dilute,
or preclude any law or court decision compelling or not compelling disclosure
by a covered person or communications service provider of—
(1) information
identifying a source who provided information without a promise or agreement of
confidentiality made by the covered person as part of engaging in journalism;
or
(2) records, other
information, or contents of a communication obtained without a promise or
agreement that such records, other information, or contents of a communication
would be confidential.
8.
Procedures for
review and appeal
(a)
Conditions for
ex parte review or submissions under seal
With regard to any determination made by a
Federal court under this Act, upon a showing of good cause, that Federal court
may receive and consider submissions from the parties in camera or under seal,
and if the court determines it is necessary, ex parte.
(b)
Contempt of
court
With regard to any determination made by a Federal court
under this Act, 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 information.
(c)
To provide for
timely determination
With regard to any determination to be made
by a Federal court under this Act, that Federal court, to the extent
practicable, shall make that determination not later than 30 days after the
date of receiving a motion requesting the court make that determination.
(d)
Expedited appeal
process
(1)
In
general
The courts of appeal shall have jurisdiction—
(A) of appeals by a
Federal entity or covered person of an interlocutory order of a Federal court
under this Act; and
(B) in an appeal of a
final decision of a Federal court by a Federal entity or covered person, to
review any determination of a Federal court under this Act.
(2)
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 appeal.
9.
Rule of
construction
Nothing in this
Act may be construed to—
(1) preempt any law or
claim relating to defamation, slander, or libel;
(2) modify the
requirements of section 552a of title 5, United States Code, or Federal laws or
rules relating to grand jury secrecy (except 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 secrecy);
(3) create new
obligations, 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 1978 (50 U.S.C. 1801 et seq.);
or
(4) preclude voluntary
disclosure of information to a Federal entity in a situation that is not
governed by this Act.
10.
Audit
(a)
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 31, 2016.
The audit shall include an examination of each instance in which a court failed
to compel the disclosure of protected information under this Act, and whether
this Act has created any procedural impediments that have had a detrimental
operational impact on the activities of the Federal Bureau of
Investigation.
(b)
Report
Not
later than June 30, 2017, 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 (a).
(c)
Review
Not
later than 30 days before the submission of the report under subsection (b),
the Inspector General of the Department of Justice shall provide the report to
the Attorney General and the Director of National Intelligence. The Attorney
General or the Director of National Intelligence may provide such comments to
be included in the report submitted under subsection (b) as the Attorney
General or the Director of National Intelligence may consider necessary.
(d)
Form
The
report submitted under subsection (b) and any comments included under
subsection (c) shall be in unclassified form, but may include a classified
annex.
11.
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 section 3 or 230 of the Communications Act of 1934 (47 U.S.C.
153 and 230)).
(2)
Covered
person
The term covered person—
(A) means a person
who—
(i) with the primary
intent to investigate events and procure material in order to disseminate to
the public news or information concerning local, national, or international
events or other matters of public interest, regularly gathers, prepares,
collects, photographs, records, writes, edits, reports or publishes on such
matters by—
(I) conducting
interviews;
(II) making direct
observation of events; or
(III) collecting,
reviewing, or analyzing original writings, statements, communications, reports,
memoranda, records, transcripts, documents, photographs, recordings, tapes,
materials, data, or other information whether in paper, electronic, or other
form;
(ii) has such intent
at the inception of the process of gathering the news or information sought;
and
(iii) obtains the news
or information sought in order to disseminate the news or information by means
of print (including newspapers, books, wire services, news agencies, or
magazines), broadcasting (including dissemination through networks, cable,
satellite carriers, broadcast stations, or a channel or programming service for
any such media), mechanical, photographic, electronic, or other means;
(B) includes a
supervisor, employer, parent company, subsidiary, or affiliate of a person
described in subparagraph (A); and
(C) does not include
any person who is or is reasonably likely to be—
(i) a foreign power or
an agent of a foreign power, as those terms are defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);
(ii) a member or
affiliate of a foreign terrorist organization designated under section 219(a)
of the Immigration and Nationality Act (8 U.S.C. 1189(a));
(iii) designated as a
Specially Designated Global Terrorist by the Department of the Treasury under
Executive Order No. 13224 (50 U.S.C. 1701);
(iv) a specially
designated terrorist, as that term is defined in section 595.311 of title 31,
Code of Federal Regulations (or any successor thereto);
(v) a 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));
(vi) committing or
attempting to commit the crime of terrorism, as that offense is defined in
section 2331(5) or 2332b(g)(5) of title 18, United States Code;
(vii) committing or
attempting the crime of providing material support, as that term is defined in
section 2339A(b)(1) of title 18, United States Code, to a terrorist
organization; or
(viii) aiding,
abetting, or conspiring in illegal activity with a person or organization
defined in clauses (i) through (vii).
(3)
Document
The
term document means writings, recordings, and photographs, as
those terms are defined by rule 1001 of the Federal Rules of Evidence (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)
Properly
classified information
The term properly classified
information means information that is classified in accordance with any
applicable Executive orders, statutes, or regulations regarding classification
of information.
(6)
Protected
information
The term protected information
means—
(A) information
identifying a source who provided information under a promise or agreement of
confidentiality made by a covered person as part of engaging in journalism;
or
(B) any records,
contents of a communication, documents, or information that a covered person
obtained or created—
(i) as part of
engaging in journalism; and
(ii) upon a promise or
agreement that such records, contents of a communication, documents, or
information would be confidential.
1.
Short title
This Act may be cited as the
Free Flow of Information Act of
2013.
2.
Compelled disclosure
from covered journalists
(a)
Conditions for
compelled disclosure
In any proceeding or in connection with any
issue arising under Federal law, a Federal entity may not compel a covered
journalist to comply with a subpoena, court order, or other compulsory legal
process seeking to compel the disclosure of protected information, unless a
judge of the United States in the jurisdiction where the subpoena, court order,
or other compulsory legal process has been or would be issued determines, after
providing notice and an opportunity to be heard to such covered
journalist—
(1) that the party seeking to
compel disclosure of the protected information has exhausted all reasonable
alternative sources (other than a covered journalist) of the protected
information; and
(2) that—
(A) in a criminal
investigation or prosecution—
(i) if the party seeking to
compel disclosure is the Federal Government, based on public information or
information obtained from a source other than the covered journalist, there are
reasonable grounds to believe that a crime has occurred;
(ii) based on public
information or information obtained from a source other than the covered
journalist, there are reasonable grounds to believe that the protected
information sought is essential to the investigation or prosecution or to the
defense against the prosecution;
(iii) the Attorney General
certifies that the decision to request compelled disclosure was made in a
manner consistent with section 50.10 of title 28, Code of Federal Regulations,
if compelled disclosure is sought by a member of the Department of Justice in
circumstances governed by section 50.10 of title 28, Code of Federal
Regulations; and
(iv) the covered journalist
has not established by clear and convincing evidence that disclosure of the
protected information would be contrary to the public interest, 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 (including the extent of any harm to national
security); or
(B) in a matter other than a
criminal investigation or prosecution, based on public information or
information obtained from a source other than the covered journalist—
(i) the protected information
sought is essential to the resolution of the matter; and
(ii) 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 information.
(b)
Limitations on content
of information
A subpoena, court order, or other compulsory legal
process seeking to compel the disclosure of protected information under
subsection (a) shall, to the extent possible, be narrowly tailored in purpose,
subject matter, and period of time covered so as to avoid compelling disclosure
of peripheral, nonessential, or speculative information.
(c)
Rule of construction
for compelled disclosure from covered journalists
Nothing in this
section shall be construed to preclude, in addition to the procedures required
under this section—
(1) the requirement that a
Federal or governmental entity shall obtain a warrant for certain
communications, as set forth in section 2703 of title 18, United States Code
(commonly known as the Electronic Communications Privacy Act); or
(2) the requirements and
procedures regarding search and seizure set forth in Rule 41 of the Federal
Rules of Criminal Procedure.
3.
Exception relating to
criminal conduct
(a)
In
general
Section 2 shall not apply to any information, record,
document, or item obtained as the result of the eyewitness observations of, or
obtained during the course of, alleged criminal conduct by the covered
journalist, including any physical evidence or visual or audio recording of the
conduct.
(b)
Exception
This
section shall not apply, and, subject to sections 4 and 5, section 2 shall
apply, if the alleged criminal conduct is the act of communicating the
documents or information at issue.
4.
Exception to prevent
death, kidnapping, substantial bodily injury, sex offenses against minors, or
incapacitation or destruction of critical infrastructure
Section 2 shall not apply to any protected
information that is reasonably necessary to stop, prevent, or mitigate a
specific case of—
(1) death;
(2) kidnapping;
(3) substantial bodily
harm;
(4) conduct that constitutes
a criminal offense that is a specified offense against a minor (as those terms
are defined in section 111 of the Adam Walsh Child Protection and Safety Act of
2006 (42 U.S.C. 16911)), or an attempt or conspiracy to commit such a criminal
offense; or
(5) incapacitation or
destruction of critical infrastructure (as defined in section 1016(e) of the
USA PATRIOT Act (42 U.S.C. 5195c(e))).
5.
Exception to prevent
terrorist activity or harm to the national security
(a)
In
general
Section 2 shall not apply to any protected information
if—
(1) the party seeking to
compel disclosure is the Federal Government; and
(2)
(A) in a criminal
investigation or prosecution of the allegedly unlawful disclosure of properly
classified information, 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—
(i) an act of terrorism;
or
(ii) other acts that are
reasonably likely to cause significant and articulable harm to national
security; or
(B) in any other criminal
investigation or prosecution, 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,
mitigating, or identifying the perpetrator of—
(i) an act of terrorism;
or
(ii) other acts that have
caused or are reasonably likely to cause significant and articulable harm to
national security.
(b)
Deference
In
assessing the existence or extent of the harm described in subsection (a), 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
concerned.
(c)
Relationship to section
2
Subsection (a) shall not apply, and, subject to sections 3 and
4, section 2 shall apply, 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 (a)(2)(A). In considering
the extent of any harm to national security when applying section 2 to such
cases, 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 concerned.
(d)
Subsequent unlawful
disclosure
The potential for a subsequent unlawful disclosure of
information by the source sought to be identified shall not, by itself and
without any showing of additional facts beyond such potential disclosure, be
sufficient to establish that compelled disclosure of the protected information
would materially assist the Federal Government in preventing or
mitigating—
(1) an act of terrorism;
or
(2) other acts that are
reasonably likely to cause significant and articulable harm to national
security.
6.
Compelled disclosure
from covered service providers
(a)
Conditions for
compelled disclosure
(1)
In
general
Except as provided in paragraph (2), if any document or
other information from the account of a person who is known to be, or
reasonably likely to be, a covered journalist is sought from a covered service
provider, sections 2 through 5 shall apply in the same manner that such
sections apply to any document or other information sought from a covered
journalist.
(2)
Exception
If
any document or other information from the account of a person who is known to
be, or reasonably likely to be, a covered journalist is sought from a covered
service provider under section 2709 of title 18, United States Code, the
provisions of sections 2 through 5 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 journalist in the course of
a criminal investigation or prosecution, except that clauses (i) and (iii) of
section 2(a)(2)(A) shall not apply.
(b)
Notice and opportunity
provided to covered journalists
A judge of the United States may
compel the disclosure of a document or other information described in this
section only after the covered journalist from whose account the document or
other information is sought has been given—
(1) notice from the party
seeking the document or other information through a subpoena or other
compulsory request, not later than the time at which such subpoena or request
is issued to the covered service provider; and
(2) an opportunity to be
heard before the judge of the United States before compelling testimony or the
disclosure of a document.
(c)
Exception to notice
requirement
(1)
In
general
Notice and opportunity to be heard under subsection (b)
may be delayed for not more than 45 days if the judge of the United States
involved determines by clear and convincing evidence that such notice would
pose a clear and substantial threat to the integrity of a criminal
investigation, would risk grave harm to national security, or would present an
imminent risk of death or serious bodily harm.
(2)
Extension
The
45-day period described in paragraph (1) may be extended by the court for 1
additional period of not more than 45 days if the judge of the United States
involved makes a new and independent determination by clear and convincing
evidence that providing notice to the covered journalist would pose a clear and
substantial threat to the integrity of a criminal investigation, would risk
grave harm to national security, or would present an imminent risk of death or
serious bodily harm under current circumstances.
(3)
Substantial threat to
the integrity of a criminal investigation
For purposes of this
subsection, a substantial threat to the integrity of a criminal investigation
exists when the judge of the United States involved finds, by clear and
convincing evidence, that the target of the investigation may learn of the
investigation and destroy evidence if notice is provided.
(4)
Protective
orders
For purposes of a determination under this subsection, the
judge of the United States involved shall consider whether providing notice
pursuant to a protective order to the covered journalist may mitigate any clear
and substantial threat to the integrity of a criminal investigation, any risk
of grave harm to national security, or any imminent risk of death or serious
bodily harm.
(d)
Notice to covered
service provider
In all cases in which notice is required to be
provided to the covered journalist under this section, a copy of such notice
shall be provided simultaneously to the covered service provider from whom
disclosure is sought. Once it has received such notice, the covered 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 journalist.
(e)
Rule of construction
for delayed notice
The delayed notice requirements in this
section shall be construed to supersede the requirements for delayed notice set
forth in sections 2703 and 2705(a) of title 18, United States Code.
7.
Sources and work product
produced without promise or agreement of confidentiality
Nothing in this Act shall supersede, dilute,
or preclude any law or court decision compelling or not compelling disclosure
by a covered journalist or covered service provider of—
(1) information identifying a
source who provided information without a promise or agreement of
confidentiality made by the covered journalist as part of engaging in
journalism; or
(2) records, other
information, or contents of a communication obtained without a promise or
agreement that such records, other information, or contents of a communication
would be confidential.
8.
Procedures for review
and appeal
(a)
Conditions for ex parte
review or submissions under seal
With regard to any determination
made by a judge of the United States under this Act, upon a showing of good
cause, that judge of the United States may receive and consider submissions
from the parties in camera or under seal, and if the court determines it is
necessary, ex parte.
(b)
Contempt of
court
With regard to any determination made by a judge of the
United States under this Act, a judge of the United States may find a covered
journalist to be in civil or criminal contempt if the covered journalist fails
to comply with an order of a judge of the United States compelling disclosure
of protected information.
(c)
To provide for timely
determination
With regard to any determination to be made by a
judge of the United States under this Act, that judge of the United States, to
the extent practicable, shall make that determination not later than 30 days
after the date of receiving a motion requesting the court make that
determination.
(d)
Expedited appeal
process
(1)
In
general
The courts of appeal shall have jurisdiction—
(A) of appeals by a Federal
entity or covered journalist of an interlocutory order of a judge of the United
States under this Act; and
(B) in an appeal of a final
decision of a judge of the United States by a Federal entity or covered
journalist, to review any determination of a judge of the United States under
this Act.
(2)
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 appeal.
9.
Rule of
construction
Nothing in this
Act may be construed to—
(1) preempt any law or claim
relating to defamation, slander, or libel;
(2) modify the requirements
of section 552a of title 5, United States Code, or Federal laws or rules
relating to grand jury secrecy (except 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 secrecy);
(3) create new obligations,
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 1978 (50 U.S.C. 1801 et seq.);
or
(4) preclude voluntary
disclosure of information to a Federal entity in a situation that is not
governed by this Act.
10.
Audit
(a)
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 31, 2016.
The audit shall include an examination of each instance in which a court failed
to compel the disclosure of protected information under this Act, and whether
this Act has created any procedural impediments that have had a detrimental
operational impact on the activities of the Federal Bureau of
Investigation.
(b)
Report
Not
later than June 30, 2017, 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 (a).
(c)
Review
Not
later than 30 days before the submission of the report under subsection (b),
the Inspector General of the Department of Justice shall provide the report to
the Attorney General and the Director of National Intelligence. The Attorney
General or the Director of National Intelligence may provide such comments to
be included in the report submitted under subsection (b) as the Attorney
General or the Director of National Intelligence may consider necessary.
(d)
Form
The
report submitted under subsection (b) and any comments included under
subsection (c) shall be in unclassified form, but may include a classified
annex.
11.
Definitions
In this Act:
(1)
Covered
journalist
(A)
Definition
The
term covered journalist—
(i)
(I) means a person
who—
(aa) is, or on the relevant
date, was, an employee, independent contractor, or agent of an entity or
service that disseminates news or information by means of newspaper; nonfiction
book; wire service; news agency; news website, mobile application or other news
or information service (whether distributed digitally or otherwise); news
program; magazine or other periodical, whether in print, electronic, or other
format; or through television or radio broadcast, multichannel video
programming distributor (as such term is defined in section 602(13) of the
Communications Act of 1934 (47 U.S.C. 522(13)), or motion picture for public
showing;
(bb) with the primary intent
to investigate events and procure material in order to disseminate to the
public news or information concerning local, national, or international events
or other matters of public interest, engages, or as of the relevant date
engaged, in the regular gathering, preparation, collection, photographing,
recording, writing, editing, reporting or publishing on such matters by— (AA) conducting
interviews; (BB) making direct
observation of events; or (CC) collecting, reviewing,
or analyzing original writings, statements, communications, reports, memoranda,
records, transcripts, documents, photographs, recordings, tapes, materials,
data, or other information whether in paper, electronic, or other form;
(cc) had such intent at the
inception of the process of gathering the news or information sought;
and
(dd) obtained the news or
information sought in order to disseminate the news or information to the
public; or
(II) means a person
who—
(aa) at the inception of the
process of gathering the news or information sought, had the primary intent to
investigate issues or events and procure material in order to disseminate to
the public news or information concerning local, national, or international
events or other matters of public interest, and regularly conducted interviews,
reviewed documents, captured images of events, or directly observed
events;
(bb) obtained the news or
information sought in order to disseminate it by means of a medium set out in
subclause (I)(aa) of this section; and
(cc) either— (AA) would have been included
in the definition in subclause (I)(aa) of this section for any continuous
one-year period within the 20 years prior to the relevant date or any
continuous three-month period within the 5 years prior to the relevant
date; (BB) had substantially
contributed, as an author, editor, photographer, or producer, to a significant
number of articles, stories, programs, or publications by a medium set out in
subclause (I)(aa) of this section within 5 years prior to the relevant date;
or (CC) was a student
participating in a journalistic medium at an institution of higher education
(as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C.
1002)) on the relevant date;
(ii) includes a supervisor,
editor, employer, parent company, subsidiary, or affiliate of a person
described in subclause (I) or (II) of clause (i); and
(iii) does not include any
person or entity—
(I) whose principal function,
as demonstrated by the totality of such person or entity's work, is to publish
primary source documents that have been disclosed to such person or entity
without authorization; or
(II) who is or is reasonably
likely to be—
(aa) a foreign power or an
agent of a foreign power, as those terms are defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);
(bb) a member or affiliate of
a foreign terrorist organization designated under section 219(a) of the
Immigration and Nationality Act (8 U.S.C. 1189(a));
(cc) designated as a
Specially Designated Global Terrorist by the Department of the Treasury under
Executive Order 13224 (66 Fed. Reg. 49079);
(dd) a specially designated
terrorist, as that term is defined in section 595.311 of title 31, Code of
Federal Regulations (or any successor thereto);
(ee) a terrorist
organization, as that term is defined in section 12(a)(3)(B)(vi)(II) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II));
(ff) committing or attempting
to commit the crime of terrorism, as that offense is defined in section 2331(5)
or 2332b(g)(5) of title 18, United States Code;
(gg) committing or attempting
the crime of providing material support, as that term is defined in section
2339A(b)(1) of title 18, United States Code, to a terrorist organization;
or
(hh) aiding, abetting, or
conspiring in illegal activity with a person or organization defined in items
(aa) through (gg).
(B)
Judicial
discretion
In the case of a person that does not fit within the
definition of covered journalist described in subclause (I) or
(II) of paragraph (A)(i), a judge of the United States may exercise discretion
to avail the person of the protections of this Act if, based on specific facts
contained in the record, the judge determines that such protections would be in
the interest of justice and necessary to protect lawful and legitimate
news-gathering activities under the specific circumstances of the case.
(2)
Covered service
provider
The term covered service provider
means—
(A) any person that transmits
information of the customer's choosing by electronic means;
(B) a telecommunications
carrier or an information service, as defined in section 3 of the
Communications Act of 1934 (47 U.S.C. 153);
(C) an interactive computer
service or an information content provider, as defined in section 230 of the
Communications Act of 1934 (47 U.S.C. 230);
(D) a remote computing
service, as defined in section 2711 of title 18, United States Code;
(E) an electronic
communications service, as defined in section 2510 of title 18, United States
Code; or
(F) any commercial entity
that maintains records related to a covered journalist.
(3)
Document
The
term document means writings, recordings, and photographs, as
those terms are defined by rule 1001 of the Federal Rules of Evidence (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)
Judge of the United
States
The term judge of the United States includes
judges of the courts of appeals, district courts, Court of International Trade
and any court created by Act of Congress, the judges of which are entitled to
hold office during good behavior, as defined in section 451 of title 28, United
States Code.
(6)
Properly classified
information
The term properly classified information
means information that is classified in accordance with any applicable
Executive orders, statutes, or regulations regarding classification of
information.
(7)
Protected
information
The term protected information
means—
(A) information identifying a
source who provided information under a promise or agreement of confidentiality
made by a covered journalist as part of engaging in journalism; or
(B) any records, contents of
a communication, documents, or information that a covered journalist obtained
or created—
(i) as part of engaging in
journalism; and
(ii) upon a promise or
agreement that such records, contents of a communication, documents, or
information would be confidential.
(8)
Relevant
date
The term relevant date means the date on which
the protected information sought was obtained or created by the person
asserting protection under this Act.
November 6, 2013Reported with an amendment