Congress Watch: S. 448 Reporter Shield Bill Back On Track?

A proposal to revise the Senate version of the "Free Flow Of Information Act" (S. 448) was released last week and greeted with enthusiasm by many media organizations. Reportedly reflecting an agreement between media organizations and the Obama Administration, the measure is expected to be taken up at the next business meeting of the Senate Judiciary Committee on Thursday, November 5.

In late October, we reported slowing progress on S. 448, the "Free Flow Of Information Act." The House version of the Act (H.R. 985) had already passed in its chamber and been on the schedule of the Senate Judiciary Committee since early summer. S. 448 has remained on the "business meeting" agenda for Judiciary Committee for several weeks now, without substantial forward movement. However, the American Society of News Editors (ASNE) reported last week that it anticipates action on the bill at the Committee's business meeting on November 5, with the introduction of an amendment to the bill to satisfy White House concerns.

The measure signals a new effort to balance the interests of news media organizations with government security. According to the ASNE:

"the movement toward a strong federal shield law appears to be back on the right path. Weeks after the White House produced language that threatened the viability of S 448, the Free Flow of Information Act, as that legislation was to be considered by the Senate Judiciary Committee, and due in no small part to the efforts of ASNE members, the administration and key supporters of S. 448 have reached an agreement on language that restores many of the protections we feared would be lost if the White House's earlier language moved forward"
Shield Law vote likely, Thursday, Nov. 5.


The new version of S. 448 differs from the current version in a number of important respects. The nature of these differences include the following issues:

National Security Exceptions

Under the previous version as well as under the proposed revision, the reporter shield would not apply if the information about the confidential source was needed to stop, prevent, or mitigate certain crimes. In addition, the measure allows for penetration of the shield when necessary for the protection of national security or prevention of terrorism. Unlike the previous version of the bill, the proposed revision specifies the standards that would be applied in making these determinations.

National Security Changes

Current Version S.448Revised S.448
SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE NATIONAL SECURITY.

Section 2 shall not apply to any protected information that a Federal court has found by a preponderance of the evidence would materially assist in preventing or mitigating, or identifying the perpetrator of—
(1) an act of terrorism; or
(2) other significant and articulable harm to national security that would outweigh the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.
SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE NATIONAL SECURITY.

(a) Section 2 shall not apply to any protected information when the party seeking to compel disclosure is the Federal government and—
(1) in a criminal investigation or prosecution of 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—
(A) an act of terrorism; or
(B) other acts that are reasonably likely to cause significant and articulable harm to national security; or (2) 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—
(A) an act of terrorism; or
(B) other acts that have caused or are reasonably likely to cause significant and articulable harm to national security.

(b) In assessing the existence or extent of the harm described in subsection (a), the 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) Subsection 5(a) shall not apply, and section 2 shall apply (subject to sections 3 and 4), to any criminal investigation or prosecution of 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 section 5(a)(1). In considering the extent of any harm to national security when applying section 2 to such cases, the 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) 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."

Application In Criminal Proceedings

Unlike the current version, the proposed revision would establish two standards to apply to piercing the media privilege. One standard applies to the government when it seeks to learn information relevant to a criminal case. The other standard applies to the criminal defendant. In the government’s assertion of a right to information that a reporters claims is confidential, S. 448 would add a new requirement that the attorney general certify that the Department of Justice had followed its own guidelines for seeking information from the media – making what had previously been a voluntary guideline, mandatory.

Criminal Proceeding Revisions

Current Version S.448Revised S.448
SEC. 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 of the subpoena, court order, or other compulsory legal process has been or would be issued 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 a covered person) of the testimony or document;
(2) that—
(A) in a criminal investigation or prosecution, based on information obtained from a source other than the covered person—
(i) there are reasonable grounds to believe that a crime has occurred;
(ii) the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution; and
(iii) in a criminal investigation or prosecution of an unauthorized disclosure of properly classified information, such disclosure has caused or will cause significant and articulable harm to the national security; or



















(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a source other than the covered person, the testimony or document sought is essential to the resolution of the matter; and
(3) that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.
SEC. 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 such testimony or document has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document;
(2) that—
(A) in a criminal investigation or prosecution —
(i) 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, if the party seeking to compel disclosure is the Federal government;
(ii) based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution, particularly with reference to directly establishing guilt or innocence;
(iii) the Attorney General certifies that the decision to request compelled disclosure was made in a manner consistent with 28 C.F.R. § 50.10, if compelled disclosure is sought by a member of the Department of Justice in circumstances governed by 28 C.F.R. § 50.10; and
(iv) the covered person has not established by clear and convincing evidence that disclosure of the 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).

(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 testimony or document sought is essential to the resolution of the matter; and
(ii) the party seeking to compel disclosure of such testimony or document 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.— The content of any testimony or document that is compelled under subsection (a) shall, to the extent possible—
(1) 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.
(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."

Civil Proceedings

As applied in civil matters, the revised bill provides the privilege claimant more protection than under the earlier version of S 448. Under the revision, the act would require a showing that all alternate sources for the confidential information sought had been exhausted as well as that access to the information was “essential” to resolving the civil matter. The burden here is on the party seeking the information from the claimant to show a public interest in gaining access to the information, rather than, as in a criminal matter, placed upon the claimant of the privilege to show that there is no such public interest.

Application in Civil Proceedings


Current Version S.448Revised S.448
SEC. 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, ….
(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a source other than the covered person, the testimony or document sought is essential to the resolution of the matter; and
(3) that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and 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.— The content of any testimony or document that is compelled under subsection (a) shall, to the extent possible—
(1) 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.
SEC. 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, …
(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 testimony or document sought is essential to the resolution of the matter; and
(ii) the party seeking to compel disclosure of such testimony or document 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."

Third Party Involvement

Both versions of S. 448 deal with efforts to seek disclosure of the alleged “confidential” information from a communications service provider for the reporter claiming the privilege. The previous version of the bill made the tests and processes to obtain the information from the service provider similar to that which would apply to the privilege claimant him or herself. The proposed revision includes some specifications of the grounds of this access to allegedly privileged information.

Third Party Involvement – Communications Providers

Current Version S.448Revised S.448
"SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

(a) CONDITIONS FOR COMPELLED DISCLOSURE.— With respect to testimony that relates to a communication to which a covered person is a party or any document that consists of any record or other information relating to a communication to which a covered person is a party, or that contains the contents of a communication to which a covered person is a party, 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 Federal court may compel the testimony or disclosure of a document described in this section only after the party seeking such testimony or document provides the covered person who is a party to the communication 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 compelling testimony or the disclosure of a document.
"SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

(a) CONDITIONS FOR COMPELLED DISCLOSURE.—
(1) Except as provided in subsection (a)(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, then 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) 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 pursuant to 18 U.S.C. § 2709, then 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 subsections 2(a)(2)(A)(i), 2(a)(2)(A)(iii) and the phrase “particularly with reference to directly establishing guilt or innocence” in subsection 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 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.

Privilege Claimant

Under both versions, the privilege can be claimed only by a “covered” person. The proposed revision no longer requires that a covered person demonstrate that he or she gets a substantial financial gain from journalistic activities, as provided by the current version. Under the proposed revision, the focus of inquiry as to whether one has standing to claim the benefit of the shield law is that the person regularly gathers information for public dissemination.

Privilege Claimant

Current Version S.448Revised S.448
(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; and
(ii) has such intent at the inception of the newsgathering process;
(B) includes a supervisor, employer, parent company, subsidiary, or affiliate of such person;
and
(C) does not include any person who is—
(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 Imigration 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 Number 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).
(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 it by means of print (including, but not limited to, newspapers, books, wire services, news agencies, or magazines), broadcasting (including, but not limited to, 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 such person; 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 Number 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).

Whether the Senate Judiciary Committee adopts the revision to S. 448 or not, the prospect for a quick passage of a media shield law would pose a challenge. At the present time Congressional leaders are suggesting that the session would not extend long past November. Even if a revised S. 448 was passed by the Committee and received passage on the floor, it would still have to be reconciled with the House version of the measure, which departs from many of the standards set out in the revision to S. 448.

Federal Rules of Evidence
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