House Approves Boucher-Pence Media Shield Bill

October 16, 2007. The House amended and approved HR 2102 [LOC | WW], the "Free Flow of Information Act of 2007", which limits the ability of the federal entities to compel journalists to provide testimony or documents, or disclose sources, related to their work. The vote on final approval was 398-21. See, Roll Call No. 973.

The House approved by voice vote an amendment [4 pages in PDF] offered by Rep. Rick Boucher (D-VA), sponsor of the bill. The House then approved the bill as amended.

Limitation on Compelled Disclosures. The bill, as amended, provides that "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".

The bill defines "federal entity" as "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."

In addition, the court must find 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".

In addition, the court must make addition findings if "the testimony or document sought could reveal the identity of a source of information". The court must find that disclosure either is "necessary to prevent, or to identify any perpetrator of, an act of terrorism", "is necessary to prevent imminent death or significant bodily harm", or is "necessary to identify a person who has disclosed -- (i) a trade secret, actionable under section 1831 or 1832 of title 18 ... (ii) individually identifiable health information ... 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".

The court must also find that "that the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information."

The bill also provides that when disclosure is compelled, it should be "narrowly tailored".

Exceptions. The bill then also adds numerous other exceptions to the general rule.

Some exceptions are to be expected. It does not apply to "eyewitness" observation of a criminal act. It does not apply to terrorist organizations.

Other exceptions in the bill tend to undermine the underlying purpose of the bill.

For example, the limitation only applies to "any matter arising under Federal law". A federal court exercising diversity jurisdiction over a claim to which state law applies could issue an order to a journalist to disclose information that would have been covered by the limitation of this bill, had the claim arisen under federal law. (The bill does not clarify whether an affirmative defense that is based upon federal law to a state law claim arises under federal law.)

Also, the bill does not apply to any "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". The bill could have been drafted more narrowly to provide only an exception for compelling disclosure of the source of, or information relevant to, the allegedly defamatory statements, and only upon the satisfaction of some threshhold showing that the statements were in fact defamatory. Defamation actions, and threats thereof, are one of the primary tactics used by those who seek to suppress speech. This exception might enable those who seek to suppress speech to use a subpoena issued by a federal court in a meritless defamation action to compel the disclosure of confidential sources, where the underlying purpose of the defamation action is to obtain the disclosure of sources, rather than vindication and the recovery of damages. This exception would also enable plaintiffs to compel disclosure from journalists in defamation actions where the disclosure would not relate to the alleged defamation, but rather would be relevant to other issues, such as jurisdiction, damages, or credibility of witnesses.

Also, the bill does not limit a "Federal entity in any matter arising under Federal law from compelling a covered person to disclose any information ... obtained as the result of ... tortious conduct by the covered person ..." That is, if the entity seeking compelled disclosure can articulate a claim that a journalist's reporting constitutes tortious conduct, then a federal entity can compel disclosure of sources and other information.

Also, the bill's limitation of compelled disclosure of confidential sources does not apply when the "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 the disclosure caused "harm to national security". One of the reasons that the federal government seeks to compel journalists to disclose sources is to find out who in the government is providing them information, and thereby to close those sources of information. Sometimes these sources are outside of government and/or acting in a legal and ethical manner. At the time of a government investigation under this exception, it would not know who the sources are. Moreover, whether disclosed information was "properly classified information" and whether the source had "authorized access" can be complex legal issues and/or factually uncertain at the time of the investigation. This exception provides the federal government opportunities to compel the disclosure of sources in the absence of the violation of any law related to classified information.

Also, the bill defines "covered person" as "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 a substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person." This would exclude amateur bloggers and web site operators whose publication is not for "financial gain".

Also, the bill's definition of "covered person" excludes "a foreign power or an agent of a foreign power". Outside of the US many entities engaged in journalism are government owned. Some of these engage in reporting comparable to that of leading US private sector journalism entities.

Also, the bill defines "journalism" as "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." The bill's use of the terms "news" and "public interest" provide those who seek compelled disclosure opportunities to compel disclosure from journalists under the argument that the subject matter of the coverage at issue is not "news" or in the "public interest".

Communications Service Providers. The bill also addresses compelled disclosures from communications service providers, who may possess call records, and stored e-mail.

However, the bill only limits disclosures of "any record, information, or other communication that relates to a business transaction between a communications service provider and a covered person".

It also nominally requires notice to a "covered person" by the party seeking disclosure from the service provider. It also requires that the covered person be given an opportunity to be heard.

There are limitations upon this requirement. First, the court may delay notice if "notice would pose a substantial threat to the integrity of a criminal investigation". The bill places no limits on the length of the delay.

The bill also relies upon the party seeking information from the service provider to notify the covered person. Yet, this party in many cases will have little or no incentive to do so. Moreover, the bill contains no sanction or penalty for failure to provide the required notice. The court and service provider are likely to have no knowledge that the target is a covered person. Even if the service provider has knowledge that the target is a covered person, it has little or no incentive to assert the privacy or journalistic interests of the target.

Sponsors. Rep. Boucher, the sponsor, stated in a release that this "is a major victory for the public's right to know and for the ability of reporters to bring important information to light. The assurance of confidentiality that reporters give to sources is fundamental to their ability to deliver news on highly contentious matters of broad public interest such as corruption in government or misdeeds in corporations. Without the promise of confidentiality, many inside sources would not reveal the information, and opportunity to take corrective action to address the harms would not arise".

Rep. Pence, the lead co-sponsor of the bill, stated "As a conservative who believes in limited government, I know the only check on government power in real time is a free and independent press. The Free Flow of Information Act is not about protecting reporters, it is about protecting the public's right to know".

Senate Bill. The Senate Judiciary Committee (SJC) approved S 3035 [LOC | WW], the "Free Flow of Information Act of 2007", on October 4, 2007. This is a different, but related bill.