. Journalists’ Privilege: Overview of the Law and Legislation in the 110th and 111th Congresses Henry Cohen Legislative Attorney Kathleen Ann Ruane Legislative Attorney April 2, 2009 Congressional Research Service 7-5700 www.crs.gov RL34193 CRS Report for Congress Prepared for Members and Committees of Congress c11173008 . Journalists’ Privilege Summary In Branzburg v. Hayes, 408 U.S. 665, 679-680 (1972), the Supreme Court wrote journalists claim “that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment.” The Court held, nonetheless, that the First Amendment did not provide even a qualified privilege for journalists to refuse “to appear and testify before state or federal grand juries.” The only situation it mentioned in which the First Amendment would allow a reporter to refuse to testify was in the case of “grand jury investigations ... instituted or conducted other than in good faith.... Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.” Though the Supreme Court concluded that the First Amendment does not provide a journalists’ privilege in grand jury proceedings, 49 states have adopted a journalists’ privilege in various types of proceedings; 33 have done so by statute, and 16 by court decision. Journalists have no privilege in federal proceedings. On July 6, 2005, a federal district court in Washington, DC, found Judith Miller of the New York Times in contempt of court for refusing to cooperate in a grand jury investigation relating to the leak of the identity of an undercover CIA agent. The court ordered Ms. Miller to serve time in jail. Ms. Miller spent 85 days in jail. She secured her release only after her informant, I. Lewis Libby, gave her permission to reveal his identity. Congress has considered creating a journalists’ privilege for federal proceedings, and bills to adopt a journalists’ privilege have been introduced in the 110th and 111th Congresses, in both the House and the Senate. These bills generally would provide for a more narrow privilege than the privileges provided by state laws. Three bills were introduced in the 110th Congress: S. 1267, S. 2035, and H.R. 2102. On October 16, 2007, the House passed H.R. 2102. In the 111th Congress, two bills have been introduced: H.R. 985 and S. 448. H.R. 985 was passed by the House of Representatives on March 31, 2009. Congressional Research Service . Journalists’ Privilege Contents Introduction ................................................................................................................................1 Overview of the Law...................................................................................................................1 In re: Grand Jury Subpoena, Judith Miller ..................................................................................3 Congressional Response in the 110th Congress.............................................................................4 H.R. 2102, as passed by the House ........................................................................................4 S. 1267 .................................................................................................................................7 S. 2035 .................................................................................................................................8 Congressional Response in the 111th Congress.............................................................................9 H.R. 985 ...............................................................................................................................9 S. 448 ................................................................................................................................. 11 Contacts Author Contact Information ...................................................................................................... 13 Congressional Research Service . Journalists’ Privilege Introduction On July 6, 2005, a federal district court in Washington, DC, found Judith Miller of the New York Times in contempt of court for refusing to cooperate in a grand jury investigation relating to the leak of the identity of an undercover CIA agent. The court ordered Ms. Miller to serve time in jail. Ms. Miller spent 85 days in jail. She secured her release only after her informant, I. Lewis Libby, gave her permission to reveal his identity. This incident drew attention to the question whether journalists should have a right to withhold information sought in judicial proceedings. Forty-nine states afford journalists some protection from compelled release of their confidential sources. 1 The question remains, however, as to whether a concomitant federal privilege exists.2 The Supreme Court has addressed the issue of journalists’ privilege under the First Amendment only once; in Branzburg v. Hayes, it held that the First Amendment provided no privilege to refuse to testify before a grand jury, but it left open the question of whether the First Amendment provides journalists with a privilege in any other circumstances.3 But, whether or not the First Amendment provides a privilege for journalists to refuse to reveal confidential sources, Congress may provide a privilege through legislation. Overview of the Law The Supreme Court has written only one opinion on the subject of journalists’ privilege: Branzburg v. Hayes, in which the Court decided three cases. After explaining the grounds on which journalists seek a privilege, the Court noted that the reporters in the cases it was considering were seeking only a qualified privilege not to testify: “Although the newsmen in these cases do not claim an absolute privilege against official interrogation in all circumstances, they assert that the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure.”4 In Branzburg v. Hayes, however, the Court held that the First Amendment did not provide even a qualified privilege for journalists to refuse “to appear and testify before state or federal grand juries.”5 The only situation it mentioned in which the First Amendment would allow a reporter to refuse to testify was in the case of “grand jury investigations ... instituted or conducted other than in good faith.... Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.”6 1 For an overview of state laws that provide journalist privileges, see CRS Report RL32806, Journalists’ Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes, by Henry Cohen. 2 See discussion of In re: Grand Jury Subpoena, Judith Miller, infra, note 9. 3 408 U.S. 665 (1972). 4 Id. at 680. 5 Id. at 667. 6 Id. at 707-708. Congressional Research Service 1 . Journalists’ Privilege The reporters in all three of the cases decided in Branzburg had sought a privilege not to testify before grand juries. At one point in its opinion, however, the Court wrote that “reporters, like other citizens, [must] respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”7 The reference to criminal trials should be considered dictum, and therefore not binding on lower courts. Branzburg was a 5-4 decision, and, though Justice Powell was one of the five in the majority, he also wrote a concurring opinion in which he found that reporters have a qualified privilege to refuse to testify regarding criminal conduct: Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the Court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.8 Powell’s opinion leaves it uncertain whether the First Amendment provides a qualified privilege for journalists to refuse to testify before grand juries.9 But “courts in almost every circuit around the country interpreted Justice Powell’s concurrence, along with parts of the Court’s opinion, to create a balancing test when faced with compulsory process for press testimony and documents outside the grand jury context.”10 Whether or not the First Amendment provides a journalists’ privilege, Congress and state legislatures may enact statutory privileges, and federal and state courts may adopt common-law privileges.11 Congress has not enacted a journalists’ privilege, though bills that would do so have been introduced in the 110th and 111th Congresses and are discussed below. Thirty-three states and the District of Columbia have enacted journalists’ privilege statutes, which are often called “shield” statutes.12 As for federal courts, Federal Rule of Evidence 501 provides that “the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of 7 8 Id. at 691. Id. at 710. 9 Justice Stewart’s dissenting opinion in Branzburg referred to “Justice Powell’s enigmatic concurring opinion.” Id. at 725. Judge Tatel of the D.C. Circuit wrote, “Though providing the majority’s essential fifth vote, he [Powell] wrote separately to outline a ‘case-by-case’ approach that fits uncomfortably, to say the least, with the Branzburg majority’s categorical rejection of the reporters’ claims.” In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006). 10 Association of the Bar of the City of New York, The Federal Common Law of Journalists’ Privilege: A Position Paper (2005) at 4-5 http://www.abcny.org/pdf/report/White%20paper%20on%20reporters%20privilege.pdf. 11 Branzburg v. Hayes, 408 U.S. at 706. 12 These statutes are set forth in CRS Report RL32806, Journalists’ Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes, by Henry Cohen. Eighteen of these statutes existed at the time of Branzburg; 15 states and the District of Columbia have enacted them since 1972. Laurence B. Alexander, Looking Out for the Watchdogs: A Legislative Proposal Limiting the Newsgathering Privilege to Journalists in the Greatest Need of Protection for Sources and Information, 20 Yale Law and Policy Review 97, 110 (2002). Congressional Research Service 2 . Journalists’ Privilege the United States in the light of reason and experience.”13 The federal courts have not resolved whether the common law provides a journalists’ privilege. The U.S. Court of Appeals for the District of Columbia, for one, “is not of one mind on the existence of a common law privilege [in federal court].... However, all [three judges on the panel for the case] believe that if there is any such privilege, it is not absolute and may be overcome by an appropriate showing.”14 As for state courts, those in 16 states provide common law protection, making a total of 49 states plus the District of Columbia that have a journalists’ privilege. 15 Wyoming is the state without either a statutory or common-law privilege. In 1980, the Department of Justice adopted a rule, which remains in effect without amendment, providing in part, “In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, the approach in every case must be to strike the proper balance between the public’s interest in effective law enforcement and the fair administration of justice.”16 In re: Grand Jury Subpoena, Judith Miller In re: Grand Jury Subpoena, Judith Miller is the federal court of appeals decision that declined to overturn the finding of civil contempt against journalists Judith Miller and Matthew Cooper for refusing to give evidence in response to subpoenas served by Special Counsel Patrick Fitzgerald in his investigation of the disclosure of the identity of a CIA agent.17 After the Supreme Court declined to review the decision, Matthew Cooper agreed to testify, but Judith Miller continued to refuse and was imprisoned as a result. The case was decided by a three-judge panel that issued an opinion for the court written by Judge Sentelle, with all three judges—Sentelle, Henderson, and Tatel—issuing separate concurring opinions. The court’s opinion, citing Branzburg, held that the First Amendment does not permit journalists to refuse to testify before a grand jury and said (as quoted above) that the court was not of one mind on the existence of a common-law privilege but that, even if there is one, the special counsel had overcome it. As for the three concurring opinions, Judge Sentelle expressed his view that there is no commonlaw privilege; Judge Henderson expressed her view that, in the interest of judicial restraint, the court should not “decide anything more today than that the Special Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect”; and Judge Tatel addressed the issues of both the constitutional privilege and the common-law privilege. 18 13 Rule 501 also provides that, in civil actions and proceedings brought under state law, the privilege shall be determined in accordance with state law. The Federal Rules of Evidence are codified in title 28 of the U.S. Code. 14 In re: Grand Jury Subpoena, supra, note 9, at 972. 15 The figure of 18 appears in In re: Grand Jury Subpoena, supra, note 9, at 994, but after the decision in this case, two more states enacted shield statutes. Citations to 14 of these 18 appear in footnote 6 on page 18 of Association of the Bar, supra, note 10. 16 28 C.F.R. § 50.10. 17 In re: Grand Jury Subpoena, supra, note 9. 18 Judge Tatel also wrote that, to conclude, as Judge Henderson had, “that the Special Counsel’s evidentiary proffer (continued...) Congressional Research Service 3 . Journalists’ Privilege As for the constitutional privilege, Judge Tatel said that he was “uncertain,” in the light of Justice Powell’s “enigmatic concurring opinion” in Branzburg, that there is no “constitutional reporter privilege in the grand jury context.” Even if there is, however, he agreed that such a privilege would not benefit Miller or Cooper in the case before the court. As for the common-law privilege, Judge Tatel concluded that “‘reason and experience’ [quoting Federal Rule of Evidence 501] as evidenced by the laws of forty-nine states and the District of Columbia, as well as federal courts and the federal government, support recognition of a privilege for reporters’ confidential sources.” Judge Tatel found, however, that, in the present case, “the special counsel has established the need for Miller’s and Cooper’s testimony.” Congressional Response in the 110th Congress On May 2, 2007, companion bills, titled the “Free Flow of Information Act of 2007,” were introduced in the Senate and the House (S. 1267 and H.R. 2102) by Senator Lugar and Representative Boucher, respectively. On August 1, 2007, after lengthy debate, the House Judiciary Committee approved H.R. 2102 with amendments added by voice vote, despite reports of concern expressed by some Members that the definition of “journalist” remained unclear in the final version of the bill.19 The bill was reported on October 10, 2007,20 and the House passed it with amendments on October 16, 2007, by a vote of 398-21. The companion bill, S. 1267, remained in committee, and a new version of the Free Flow of Information Act of 2007, S. 2035, was introduced in the Senate on September 10, 2007, by Senator Arlen Specter. On October 22, 2007, the Senate Committee on the Judiciary reported it with amendments but without a written report. The motion to proceed to consideration of S. 2035 on the Senate floor was withdrawn on July 28, 2008. S. 1267, S. 2035, and H.R. 2102 would have established a qualified privilege with respect to both the identity of a source and other information obtained by covered persons with the assurance of confidentiality. H.R. 2102, as passed by the House Where would the privilege apply? H.R. 2102 would apply the privilege in cases arising under federal law in which a “Federal entity” seeks disclosure. The bill defines a “Federal entity” as “an entity or employee of the judicial or executive branch or an administrative agency of the Federal Government with the (...continued) overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect,” requires the adoption of a standard by which to determine when the privilege is overcome. But, to adopt a standard without first determining that a privilege exists would be, if a privilege does not exist, to “establish a precedent, potentially binding on future panels, regarding the scope of the assumed privilege, even though resolving that question was entirely unnecessary.” This would be “an undertaking hardly consistent with principles of judicial restraint.” Id. at 989-990. 19 Elaine S. Povich, Journalist Shield Legislation Moves to the House Floor, CongressDaily, August 1, 2007, available at http://nationaljournal.com/members/markups/2007/08/mr_20070801_7.htm. 20 H.Rept. 110-370, 110th Cong., 1st sess. (2007). Congressional Research Service 4 . Journalists’ Privilege power to issue a subpoena or issue other compulsory process,” but not the legislative branch. The privilege provision in the bill would not apply in state courts or other state entities. What would be protected from disclosure? H.R. 2102 would protect (subject to qualifications discussed below) any testimony and any documents, defined as “writings, recordings, and photographs, as those terms are defined by Federal Rule of Evidence 1001 (28 U.S.C. App.),” that are obtained or created by a “covered person as part of engaging in journalism.” Even if one of the exceptions outlined below applies, H.R. 2102 would place limitations on compelled disclosure. Disclosure that is compelled shall “not be overbroad, unreasonable, or oppressive and, as appropriate, be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy of such published information; and be narrowly tailored ... so as to avoid production of peripheral, nonessential, or speculative information.” Who could refuse to disclose? H.R. 2102 provides that a “covered person” means “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 substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.” This definition is narrower than the definition of “covered person” in H.R. 2102 as it was introduced. The version of H.R. 2102 that passed the House also would provide that “covered persons” shall not include foreign powers or agents of foreign powers, any organization designated by the Secretary of State as a foreign terrorist organization, any person included on the Annex to Executive Order No. 13224, any person who is a specially designated terrorist, or any terrorist organization. H.R. 2102 would define “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 privilege also would apply to compelled disclosure from communications service providers. The privilege would apply to any document, record, information, or other communication that relates to a business transaction between a communications service provider and a covered person, if that document or testimony would fall under the privilege when sought from the covered person. A “communications service provider” would be defined as “any person that transmits information of the customer’s choosing by electronic means; and ... includes a telecommunications carrier, an information service provider, an interactive computer service provider, and an information content provider (as such terms are defined in the sections 3 and 230 of the Communications Act of 1934 (47 U.S.C. 153, 230)).” In other words, this provision would allow a covered person’s telephone company or Internet service provider, for example, to assert a privilege not to disclose the covered person’s phone or e-mail records. The third party or federal entity seeking to compel testimony or a document from a communications service provider would have to give notice to the covered person who is a party Congressional Research Service 5 . Journalists’ Privilege to the business transaction with the communications service provider. The covered person would be entitled to be heard by the court before the testimony or disclosure is compelled. What exceptions would permit disclosure to be compelled? H.R. 2102‘s privilege would be qualified with respect both to the identity of a source and to other information. A federal entity would not be permitted to compel disclosure of any testimony or document that would reveal sources or other information, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to the covered person, that the entity “has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document.” In addition, “in a criminal investigation or prosecution based on information obtained from a person other than the covered person,” the court would have to find, for disclosure to be compelled, that “there are reasonable grounds to believe that a crime has occurred” and that “the testimony or document sought is critical to the investigation or prosecution or to the defense against the prosecution.... [I]n 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 [would have to be] critical to the successful completion of the matter.” To compel disclosure of the identity or of information that could reasonably be expected to lead to the discovery of the identity of a source, the court would have to find that disclosure is (A) “necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States or its allies or other significant and specified harm to national security”; (B) “necessary to prevent imminent death or significant bodily harm”; (C) “necessary to identify a person who has disclosed” a trade secret, individually identifiable health information, or nonpublic personal information; or (D) “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 such unauthorized disclosure has caused or will cause significant and articulable harm to national security.” After determining that the evidence satisfies one of the above provisions, the court would then determine, before compelling disclosure of the information, “that the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.” For the purposes of making this determination “a court may consider the extent of any harm to national security.” H.R. 2102 would create a further exception from the privilege for information, records, documents, or items “obtained as the result of the eyewitness observation by the covered person of alleged criminal conduct or as the result of the commission of alleged criminal or tortious conduct by the covered person”; it would permit disclosure in such cases if a federal court determines that the party seeking disclosure has exhausted all other reasonable efforts to obtain the information from alternative sources. This exception to the privilege does not apply in cases where “the alleged criminal conduct observed by the covered person or the alleged criminal or tortious conduct committed by the covered person is the act of transmitting or communicating the information, record, document or item sought for disclosure.” Congressional Research Service 6 . Journalists’ Privilege S. 126721 Where would the privilege apply? S. 1267 would apply the privilege in any “Federal entity,” which the bill defines to include the executive branch; the judicial branch; and any “administrative agency of the Federal Government with the power to issue a subpoena or other compulsory process,” but not the legislative branch. The privilege provision in the bill would not apply in state courts or other state entities. What would be protected from disclosure? S. 1267 would protect (subject to qualifications discussed below) any testimony and any documents, defined as “writings, recordings and photographs as defined by Federal Rule of Evidence 1001 (28 U.S.C. App.).” Who could refuse to disclose? S. 1267 provides that a “covered person” means “a person engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.” 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 bill’s privilege also would apply to compelled disclosure from communications service providers. The privilege would apply to any document, record, information or other communication that relates to a business transaction between a communications service provider and a covered person, if that document or testimony would fall under the privilege when sought from the covered person. A “communications service provider” would be defined as “any person that transmits information of the customer’s choosing by electronic means; and ... includes a telecommunications carrier, an information service provider, an interactive computer service provider, and an information content provider (as such terms are defined in the sections 3 and 230 of the Communications Act of 1934 (47 U.S.C. 153, 230)).” In other words, this provision would allow a covered person’s telephone company or Internet service provider, for example, to assert a privilege not to disclose the covered person’s phone or e-mail records. The third party or federal entity seeking to compel testimony or a document from a communications service provider would have to give notice to the covered person who is a party to the business transaction with the communications service provider. The covered person would be entitled to be heard by the court before the testimony or disclosure is compelled. What exceptions would permit disclosure to be compelled? S. 1267‘s privilege would be qualified with respect both to the identity of a source and to other information. A federal entity would not be permitted to compel disclosure of any testimony or document—that would reveal sources or other information—unless a court determines by a 21 S. 1267 is identical to H.R. 2102 as introduced in the House. Congressional Research Service 7 . Journalists’ Privilege preponderance of the evidence, after providing notice and an opportunity to be heard to the covered person, that the entity “has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document.” In addition, “in a criminal investigation or prosecution based on information obtained from a person other than the covered person,” the court would have to find, for disclosure to be compelled, that “there are reasonable grounds to believe that a crime has occurred” and that “the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution.... [I]n 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 [would have to be] essential to the successful completion of the matter.” To compel disclosure of the identity or of information that could reasonably be expected to lead to the discovery of the identity of a source, the court would have to find, in addition to the above items, that disclosure is (A) “necessary to prevent imminent and actual harm to national security;”; (B) “is necessary to prevent imminent death or significant bodily harm”; or (C) “disclosure of a source is necessary to identify a person who has disclosed” a trade secret of significant value, individually identifiable health information, or nonpublic personal information. The court must also find “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 news and maintaining the free flow of information.” S. 2035 S. 2035 is substantially similar to both S. 1267 and H.R. 2102, but differs from those two in the exceptions it would create to the privilege. Under the exceptions, the federal entity would not be required to make the initial showing in order to compel testimony of a covered person. S. 2035 also seeks to more precisely define what types of information, sources, and work product would be protected by the privilege. What circumstances are excepted from the privilege? S. 2035 would create three situations that would be excepted from the protections the bill would provide. First, the privilege would not apply to any information, record, document, or item obtained as the result of the eyewitness observations of criminal conduct or commitment of criminal or tortious conduct by the covered person, including any physical evidence or audio recording of the observed conduct, if a Federal court determines that the party seeking to compel disclosure has exhausted reasonable efforts to obtain the information from alternative sources. However, when “the alleged criminal or tortious conduct is the act of communicating the documents or information at issue,” this exception to the privilege would not apply. S. 2035 would not apply the privilege to “any protected information that is reasonably necessary to stop, prevent or mitigate a specific case of death; kidnapping; or substantial bodily harm.” S. 2035 also would provide an exception for the prevention of terrorist activity or harm to national security. The privilege would not apply “to any protected information that a Federal court Congressional Research Service 8 . Journalists’ Privilege has found by a preponderance of the evidence would assist in preventing a specific case of terrorism against the United States; or significant harm to national security that would outweigh the public interest in newsgathering and maintaining the free flow of information to citizens.” What sources are considered confidential? S. 2035 would provide that only those sources who provide information, records, communication data, or documents with the promise of confidentiality would be covered by the privilege. What is protected information? S. 2035 defines protected information as 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 any records, communications data, documents or information that a covered person obtained or created as part of engaging in journalism; and upon a promise or agreement that such records, communication data, documents, or information would be confidential. On October 4, 2007, the Senate Judiciary Committee approved S. 2035 with minor amendments, according to the National Journal, and ordered it to be reported to the full Senate. Congressional Response in the 111th Congress Bills entitled “The Free Flow of Information Act of 2009” have been introduced in both houses in the 111th Congress. These bills would create a qualified privilege for “covered persons” in federal court. The House bill would create a higher hurdle for compelling disclosure than would the Senate bill. H.R. 985 H.R. 985 is identical to H.R. 2102 as it was passed by the House of Representatives in the 110th Congress. H.R. 985 was passed without amendment by the House of Representatives on March 31, 2009. Where would the privilege apply? H.R. 985 would apply the privilege in cases arising under federal law in which a “Federal entity” seeks disclosure. The bill defines a “Federal entity” as “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,” but not the legislative branch. The privilege provision in the bill would not apply in state courts or other state entities or to state law claims that are brought in federal court. Congressional Research Service 9 . Journalists’ Privilege What information is protected from disclosure? Documents and testimony obtained or created as a part of engaging in journalism would be protected under this bill, unless a court determines by a preponderance of the evidence that one of the exceptions applies and that disclosure of the information is in the public interest. Documents are “writings, recordings, and photographs, as those terms are defined by” the Federal Rules of Evidence. 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.” Who is eligible to invoke the privilege? The bill would define a “covered person” to be an individual who regularly engages in “journalism,” as defined by the bill, for a substantial portion of the person’s livelihood or for substantial financial gain. Supervisors, employers, parents, subsidiaries, and affiliates of such persons are covered as well. Covered persons are not agents of foreign powers, or persons affiliated with terrorist organizations as defined in a variety of areas of the law. When would the privilege apply? Under the bill, federal entities would not be allowed to compel disclosure from “covered persons” of documents or testimony that was gathered as part of engaging in journalism, unless a court, after notice and an opportunity for the “covered person” to be heard by the court, determines by a preponderance of the evidence that one of the following exceptions applies: Disclosure may be compelled if the court finds that the party seeking production of the testimony or document has exhausted “all reasonable alternative sources (other than the covered person) of the testimony or document.” Disclosure may be compelled if the court finds that, in a criminal investigation or prosecution, based on information obtained from sources other than the covered person, “there are reasonable grounds to believe that a crime has occurred; and the testimony or documents sought is critical to the investigation, or prosecution, or to the defense against prosecution.” Disclosure may be compelled if the court finds that, in matters other than a criminal investigation or prosecution, based on information obtained from sources other than the covered person, “the testimony or document sought is critical to the successful completion of the matter.” The bill creates a higher standard for the disclosure of evidence that could lead to the identity of a source. When the testimony or document could reveal the identity of a source of information or include any information that could reasonably be expected to lead to the discovery of a source’s identity, disclosure may be compelled if the court finds by a preponderance of the evidence that “disclosure of the identity of such a source is necessary to prevent, or to identify any perpetrator of, an act of terrorism” or any other significant and specified harm to national security with the objective of preventing the harm. Disclosure of source-identifying information may be compelled if it is “necessary to prevent imminent death or significant bodily harm with the objective to prevent such harm.” In addition, disclosure may be compelled if the court finds that disclosure of source-identifying information is necessary to identify someone who has disclosed trade secrets, individually identifiable health information, or nonpublic personal information. Finally, Congressional Research Service 10 . Journalists’ Privilege disclosure may be compelled if the court finds that disclosure of source-identifying information “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 the information, and such unauthorized disclosure has caused or will cause significant and articulable harm to national security.” In deciding whether any of the above-described exceptions should allow disclosure to be compelled, a court must weigh whether the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information. In making this determination, the court may consider the extent of any harm to national security. What are the limits on the information which may be compelled? When the court finds that documents or testimony may be compelled, the content of those documents or testimony “shall not be overbroad, unreasonable, or oppressive” and “should be limited to the purposes of verifying published information or describing the surrounding circumstances relevant to the accuracy of published information.” Furthermore, the documents and testimony compelled must be “narrowly tailored in subject matter and period of time covered so as to avoid compelling production of peripheral, nonessential, or speculative information.” What matters fall outside the qualified privilege? The qualified privilege created by the bill would not apply to matters in which a federal entity seeks to compel disclosure of documents or testimony “obtained as a result of the eyewitness observation by the covered person of alleged criminal conduct or as the result of the commission of alleged criminal or tortious conduct by the covered person,” if a federal court determines that the party seeking to compel such disclosure has exhausted all other reasonable efforts to obtain the information sought. This exception would not apply to scenarios in which the criminal or tortious conduct alleged is the act of transmitting or communicating the information at issue. How does the privilege apply to communications service providers? The privilege would apply to communications service providers in the same way that it would if the information were sought from the covered person. If information is sought from a communications service provider, notice and an opportunity to be heard must be provided to the covered person who is a customer or party to the communication sought to be disclosed. S. 448 Where would the privilege apply? S. 448 would apply the privilege in cases arising under federal law in which a “Federal entity” seeks disclosure of “protected information” from a “covered person.” The bill defines a “Federal entity” as “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,” but not the legislative branch. The privilege provision in the bill would not apply in state courts or other state entities or to state law claims that are brought in federal court. Congressional Research Service 11 . Journalists’ Privilege Who is eligible to invoke the privilege? The bill defines “covered persons” to be those individuals who engage in “journalism,” as defined by the bill. “Journalism” means “the regular 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.” Supervisors, employers, parents, subsidiaries, and affiliates of such persons are covered as well. Covered persons would not include agents of foreign powers, or persons affiliated with terrorist organizations as defined in a variety of areas of the law. What information may be protected from disclosure? Whereas H.R. 985 would apply to all information obtained or created by covered persons as part of engaging in journalism, S. 448 would apply only to a subset of such information, which the bill would define as “protected information.” The main difference between the bills is that S. 448 would only protect information gathered by covered persons engaged in journalism if that information were obtained upon a promise of confidentiality. As defined by S. 448, “protected information” is “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 any contents of a communication, documents or information that a covered person obtained or created as part of engaging in journalism and upon a promise or agreement that such records, contents of a communication, documents, or information would be confidential.” When would the privilege apply? Under the bill, federal entities would not be allowed to compel disclosure of “protected information” from a “covered person,” unless a court, after notice and an opportunity for the “covered person” to be heard, determines by a preponderance of the evidence that one of the following exceptions applies: Disclosure may be compelled if the court finds that the party seeking production of the testimony or document has exhausted “all reasonable alternative sources (other than the covered person) of the testimony or document.” Disclosure may be compelled if the court finds that, in a criminal investigation or prosecution, based on information obtained from sources other than the covered person, “there are reasonable grounds to believe that a crime has occurred; the testimony or documents sought is essential to the investigation, or prosecution, or to the defense against prosecution; and in a criminal prosecution of an unauthorized disclosure of properly classified information by a person with authorized access to such information, such disclosure has caused or will cause significant articulable harm to the national security.” Disclosure may be compelled if the court finds that, in matters other than a criminal investigation or prosecution, based on information obtained from sources other than the covered person, “the testimony or document sought is essential to the successful completion of the matter.” Congressional Research Service 12 . Journalists’ Privilege What are the limits on the information which may be compelled? When the court finds that documents or testimony may be compelled, the content of those documents or testimony would, to the extent possible, “be limited to the purposes of verifying published information or describing the surrounding circumstances relevant to the accuracy of published information.” Furthermore, the documents and testimony compelled, to the extent possible, would have to be “narrowly tailored in subject matter and period of time covered so as to avoid compelling production of peripheral, nonessential, or speculative information.” What are the exceptions to the privilege? S. 448 enumerates three scenarios in which the privilege would not apply. First, the privilege would not apply to any “information, record, document, or item obtained as a result of the eyewitness observations of alleged criminal conduct or commitment of alleged tortious conduct by the covered person,” unless the alleged criminal or tortious conduct is the act of communicating the information at issue. Second, the privilege would not apply to any protected information that is “reasonably necessary to stop, prevent, or mitigate a specific case of death, kidnapping, or substantial bodily harm.” Third, the privilege would not apply if a federal court has found by a preponderance of the evidence that the protected information would assist in preventing an act of terrorism, or other significant and articulable harm to national security that would outweigh the public interest in newsgathering and maintaining a free flow of information to citizens. How does the privilege apply to communications service providers? The privilege would apply to communications service providers in the same way that it would if the information were sought from the covered person. If information is sought from a communications service provider, notice and an opportunity to be heard must be provided to the covered person who is a customer or party to the communication sought to be disclosed. Author Contact Information Henry Cohen Legislative Attorney hcohen@crs.loc.gov, 7-7892 Congressional Research Service Kathleen Ann Ruane Legislative Attorney kruane@crs.loc.gov, 7-9135 13