Legislation News & Report (TM) 

TheWeekInCongress.com (TM)

Managing America: Courts

TheWeekInCongress.com (TM)

Week Ending October 19, 2007

H.R.2102 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.

The bill attempts to ensure that members of the press, under the First Amendment of the US Constitution, may utilize confidential sources without causing harm to themselves or their sources by providing that the source may only be revealed under narrow circumstances.

The bill report holds that ‘confidential sources are thought to be particularly important to bringing unrestricted information of public interest to light’ and that the First Amendment offers protection against the compulsory disclosure of those confidential sources by the Federal Government. The report further notes that the First amendment, in this matter, supports the need to protect the free flow of information and ideas and the need to keep the government from interfering with the press or using it as an investigative arm.

On a practical basis, sources of information that might better inform the public through the press, are not likely to come forward with that information if they are not assured of confidentiality of their identities.

The general legal thinking about shielding journalists from revealing their sources in court is centered on striking a ‘proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.’’

Under current Supreme Court reasoning, a journalist may not be compelled to comply with a subpoena unless the government can show that there is probable cause to believe that the reporter has information that is clearly relevant to a specific probable violation of law; can demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and can establish a compelling and overwhelming interest in the information.

Although the Supreme Court has ruled journalists would not be protected from subpoena in grand jury matters, it also held that Congress can establish ‘whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary…’. It is considered important to establish a set of uniform standards at the Federal and State level to govern reporter’s testimony.

A ‘covered person’ is one who, for financial gain or livelihood, is engaged in journalism. Journalism is defined 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 definition of journalist includes supervisors, employers, parent and subsidiary or affiliate of the covered person.

“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.”

The bill establishes that a Federal entity may not compel a journalist to produce documents, provide testimony and identify confidential informants unless four conditions are met. The conditions are:

1. The government has exhausted all other reasonable alternatives to getting the information;

2. If a criminal investigation, there are reasonable grounds to believe a crime has occurred and the testimony or document sought is critical to the investigation, prosecution or defense and in all other matters, the information is critical to completion of the matter;

In the event that the testimony or document sought could reveal the identity of a source of information or provide information that could reasonably lead to the discovery of a source’s identity:

3. The disclosure may be sought if it is necessary to prevent an act of terrorism, prevent imminent death or significant bodily harm or if it is necessary to identify a person that has exposed trade secrets, certain protected health information or nonpublic personal information; and (4) if the public interest in disclosing the information outweighs the possible loss of future confidential sources and information.

Further, the information being sought should not be overbroad, unreasonable or oppressive and should be limited to the purpose of verifying published information or describing surrounding circumstances relevant to the accuracy of the information that was originally published. Peripheral, nonessential or speculative information is to be avoided by a narrowly tailored subject matter and time period surrounding the questions and information sought.

Internet service providers may not be compelled to produce a reporter’s e-mail, phone or computer use unless the same conditions apply. The covered person must be notified at the same time the communications provider is subpoenaed, but not if there is clear and convincing evidence that the notice to the journalist would pose a substantial threat to the integrity of a criminal investigation.

The rules do not apply to civil defamation, slander or libel claims or defense under State law regardless of whether or not the claims or defenses are raised in State or Federal court. Terrorist or individuals on the terrorist watch list are not covered.

Sponsor:  Rep. Rick Boucher (D-VA-9^th)

Vote: Passed the House 398 to 21 RC 973 October 17, 2007. The Motion to Recommit the bill was agreed to 388 to 33 RC 972

Cost to the taxpayers: “CBO estimates that implementing H.R. 2102 would have no significant effect on the Federal budget”

Earmark Certification:   In accordance with clause 9 of rule XXI of the Rules of the House of Representatives, H.R. 2102 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

The Motion to Recommit

The motion to recommit the bill added text that would specifically allow a judge to weigh, when deciding if testimony revealing a source is a lesser concern than the public interest, the impact on national security.

The Motion to Recommit the bill was agreed to 388 to 33 RC 972

## All Rights Reserved. © 2007 TheWeekInCongress.com(TM)

No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)

MORE INFORMATION

ADDITIONAL VIEWS

I want to thank the primary authors of H.R. 2102, Mr. Boucher and Mr. Pence, for working with the Department of Justice, interested groups, and Members to develop alternative language to address the legitimate concerns of industry and law enforcement authorities.

The proponents of H.R. 2102 have worked hard over the past three years to balance competing policy interests. The result is an improved bill.

For example, the authors narrowed the definition of a `covered person' to include only professional journalists.

They addressed some of the Department of Justice's concerns by denying protection to persons covered by the Foreign Intelligence Surveillance Act as well as those affiliated with terrorist organizations designated by the Secretary of State.

The manager's amendment adopted at full Committee markup also deletes the `imminent and actual' harm language from the section of the bill that lists exceptions to source protection. The new text would deny protection when disclosure is necessary to prevent `an act of terrorism against the United States or other significant specified' harm to national security.

In addition, the manager's amendment broadens the trade secrecy, health, and non-public personal information exceptions by linking them to disclosures that are `actionable under' specific statutes.

Further, the manager's amendment specifies that the protections afforded transactions between a covered person and a communications service provider do not apply to a non-covered person.

And finally, the manager's amendment includes new limitations on information content that is compelled: it must not be `overbroad, unreasonable or oppressive and, where appropriate,' be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the published information's accuracy.

But despite efforts to accommodate their concerns, the Justice Department still opposes the bill. They believe the stakes are too high in a post 9/11 world to support the Free Flow of Information Act.

The federal government defends our national security. So we must weigh the benefits of a reporter's privilege with the problems it may cause for those who protect our country.

They have pointed out that the `exceptions' language fails to address misconduct that the Department confronts on a daily basis.

To illustrate, the legislation prevents DoJ from obtaining the identity of a news source with knowledge of a child prostitution ring, an online purveyor of pornography, gang violence, or alien smuggling.

And the new text governing source disclosure exceptions only addresses prospective events. The Department may be able to acquire information about a source's identity to prevent a terrorist attack. But the

language does not help if an attack has already occurred and DoJ is searching for plotters or witnesses with knowledge about the event.

Also, the H.R. 2102 does not address `imminent attacks' against our allies, soldiers, embassies, and US citizens in other countries.

It protects trade secrets, but not national secrets.

Despite the changes contained in the reported version of H.R. 2102, I am concerned that the Department will be hamstrung as it goes about the business of conducting investigations and prosecuting criminals.

But DoJ should do more than complain; they should negotiate in good faith and provide the Committee with language that addresses their concerns.

Although a close call, I could not support H.R. 2102 during the Committee markup. I simply believe we must err on the side of caution and not support legislation that could make it harder to apprehend criminals and terrorist or deter their activities.

But DoJ can do a better job of working with the Committee to improve the bill between now and floor consideration of H.R. 2102. Progress was made in the manager's amendment and we should continue to improve this bill before we go to the House floor. If the legitimate security concerns registered by the Department are addressed at that time then I will support H.R. 2102.
Lamar Smith.

## All Rights Reserved. © 2007 TheWeekInCongress.com.(TM)

No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)