S. 2831 IS

109th CONGRESS 2d SessionS. 2831

To guarantee the free flow of information to the public through a free and active press while protecting the right of the public to effective law enforcement and the fair administration of justice.

IN THE SENATE OF THE UNITED STATES

May 18, 2006

Mr. LUGAR (for himself, Mr. SPECTER, Mr. DODD, Mr. GRAHAM, and Mr. SCHUMER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

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A BILLTo guarantee the free flow of information to the public through a free and active press while protecting the right of the public to effective law enforcement and the fair administration of justice.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Free Flow of Information Act of 2006'.

SEC. 2. PURPOSE.

The purpose of this Act is to guarantee the free flow of information to the public through a free and active press as the most effective check upon Government abuse, while protecting the right of the public to effective law enforcement and the fair administration of justice.

SEC. 3. DEFINITIONS.

In this Act--

(1) the term `attorney for the United States' means the Attorney General, any United States Attorney, Department of Justice prosecutor, special prosecutor, or other officer or employee of the United States in the executive branch of Government or any independent regulatory agency with the authority to obtain a subpoena or other compulsory process;

(2) the term `communication 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 sections 3 and 230 of the Communications Act of 1934 (47 U.S.C. 153 and 230)); and

(3) the term `journalist' means a person who, for financial gain or livelihood, is engaged in gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing news or information as a salaried employee of or independent contractor for a newspaper, news journal, news agency, book publisher, press association, wire service, radio or television station, network, magazine, Internet news service, or other professional medium or agency which has as 1 of its regular functions the processing and researching of news or information intended for dissemination to the public.

SEC. 4. COMPELLED DISCLOSURE AT THE REQUEST OF ATTORNEYS FOR THE UNITED STATES IN CRIMINAL PROCEEDINGS.

(a) In General- Except as provided in subsection (b), in any criminal investigation or prosecution, a Federal court may not, upon the request of an attorney for the United States, compel a journalist, any person who employs or has an independent contract with a journalist, or a communication service provider to disclose--

(1) information identifying a source who provided information under a promise or agreement of confidentiality made by the journalist while acting in a professional newsgathering capacity; or

(2) any records, communication data, documents, or information that the journalist obtained or created while acting in a professional newsgathering capacity and upon a promise or agreement that such records, communication data, documents, or information would be confidential.

(b) Disclosure- Compelled disclosures otherwise prohibited under subsection (a) may be ordered only if a court, after providing the journalist, or any person who employs or has an independent contract with a journalist, notice and an opportunity to be heard, determines by cle