Calendar No. 238
113th Congress Report
SENATE
1st Session 113-118
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FREE FLOW OF INFORMATION ACT OF 2013
_______
November 6, 2013.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 987]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 987), 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, having considered the same, reports favorably
thereon, with amendment, and recommends that the bill, as
amended, do pass.
CONTENTS
Page
I. Purpose of the Free Flow of Information Act of 2013..............2
II. Background and Need for the Free Flow of Information Act of 2013.3
III. History of the Bill and Committee Consideration.................12
IV. Section-by-Section Summary of the Bill..........................16
V. Congressional Budget Office Cost Estimate.......................22
VI. Regulatory Impact Evaluation....................................24
VII. Conclusion......................................................24
VIII.Additional and Minority Views...................................25
IX. Changes to Existing Law Made by the Bill, as Reported..........144
I. Purpose of the Free Flow of Information Act of 2013
Senators Schumer and Graham introduced the Free Flow of
Information Act, S. 987, to create a qualified privilege for
journalists to withhold information that they obtain under the
promise of confidentiality. This bill strikes a balance between
journalists' need to maintain confidentiality in order to
preserve the public's right to know about important issues with
the necessity of effective law enforcement. The bill provides
standards that would govern when a person or organization that
is covered by the Act may be compelled to reveal the identity
of a confidential source or information that was provided under
a promise of confidentiality. These standards would apply to
governmental and private entities in both civil and criminal
investigations and cases.
Unlike some States that have created an absolute privilege
against compelling journalists to turn over protected material,
this bill creates a qualified privilege. Under this bill, a
journalist who possesses information that was provided under
the promise of confidentiality might--in certain
circumstances--be compelled by a court to produce the source of
the information. Those circumstances would depend on whether
the litigant's demand for information arises in a civil,
criminal, or other context, and whether it relates to an
investigation or case implicating national security or
classified material.
In certain situations, the Act's protections categorically
do not apply, and the journalist will be required to turn over
protected information. The Act does not apply to information
obtained as a result of the journalist's eyewitness observation
of an alleged crime, or as a result of alleged criminal conduct
by the journalist. The only crime to which this section does
not apply is when the communication of the material is itself
the alleged criminal conduct. The Act also does not apply when
the disclosure of confidential-source information is reasonably
necessary to stop, prevent, or mitigate a specific case of
death, kidnapping, substantial bodily injury, certain offenses
against minors, or incapacitation of critical infrastructure.
Further, the Act contains specific provisions to ensure
that law enforcement maintains access to needed national
security-related information, an issue that is unique to the
Federal Government and not addressed in any state media shield
law.
In cases that involve alleged unauthorized disclosures of
properly classified information (``leaks''), the Act allows a
court to compel the disclosure of confidential-source
information where disclosure would assist in preventing or
mitigating an act of terrorism or acts that are reasonably
likely to cause significant and articulable harm to national
security. However, the potential for a subsequent unlawful
disclosure of information by the source sought to be identified
is not sufficient to establish likely significant and
articulable harm to national security. In cases that do not
involve a leak of properly classified information, the Act
allows the court to compel the disclosure of confidential-
source information in order to identify the perpetrator of an
act of terrorism or acts that have caused, or are reasonably
likely to cause, significant and articulable harm to national
security.
II. Background and the Need for the Free Flow of Information Act of
2013
A free press is vital to a healthy democracy, and a
journalist's ability to effectively gather information is, in
turn, central to a free press. However, there is no Federal
statute or consistent body of common law that provides clear
rules about when a journalist must disclose his or her
confidential source information. The absence of a uniform
Federal standard for protecting confidential source information
has resulted in a confusing collage of Federal court decisions
on the issue and has discouraged informants and whistleblowers
from coming forward with important information regarding, for
example, corporate wrongdoing or Government fraud, abuse, or
mismanagement. The Free Flow of Information Act is needed to
clarify the law in this area and to provide clear guidance to
courts, journalists, and Federal law enforcement regarding when
the disclosure of confidential source information can be
compelled.
A. THE STATES' RECOGNITION OF THE NEED FOR MEDIA SHIELD LAWS
The universal recognition of the need for a media shield
law is demonstrated by the fact that 48 States and the District
of Columbia recognize protections for the press through their
constitutions, legislation, and in common law.\1\ Specifically,
39 States plus the District of Columbia have passed a media
shield statute in some form, and nine States have recognized a
privilege in their state constitutions or common law. While 10
States have created an absolute privilege that protects
journalists in all circumstances, many states' shield laws have
adopted a balancing test--weighing the interests of law
enforcement against the public's interest in the free flow of
information.
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\1\See generally, Carey Lening & Henry Cohen, Journalists'
Privilege to Withhold Information in Judicial and Other Proceedings:
State Shield Statutes, Congressional Research Service Report for
Congress, Mar. 8, 2005.
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The widespread need for state media shield statutes sparked
commentary as early as 1970, as the seminal case of Branzburg
v. Hayes, ultimately decided in 1972 and discussed in more
detail infra, made its way through the Federal courts. In
Branzburg, the United States Supreme Court held that there is
no right under the First Amendment to the U.S. Constitution for
a journalist to withhold confidential information in a grand
jury proceeding. The Court noted, however, that although the
Constitution does not require a privilege for journalists in
the grand jury context, ``Congress has freedom to determine
whether a statutory newsman's privilege is necessary and
desirable and to fashion standards and rules as narrow or broad
as deemed necessary to deal with the evil discerned and,
equally important, to refashion those rules as experience from
time to time may dictate.'' Branzburg v. Hayes, 408 U.S. 665,
706 (1972).
After the Branzburg decision, the call for state media
shield laws issued loudly and was heeded by the majority of
States in the decade that followed.\2\ As one commentator wrote
at the time, ``[I]t is important to recognize a qualified
privilege for reporters in both criminal and civil cases. It is
essential that the First Amendment interests of the press in
gathering and disseminating information be supported through
the privilege avenue.''\3\
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\2\See Paul Marcus, The Reporter's Privilege: An Analysis of the
Common Law, Branzburg v. Hayes, and Recent Statutory Developments,
Faculty Publications Paper 569 (1983), available at http://
scholarship.law.wm.edu/facpubs/569.
\3\See id. at 4.
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Today, every State court system except Hawaii\4\ and
Wyoming is governed by a constitutional, legislative or common
law protection for journalists. Collectively, these States have
recognized that the press plays a legally enshrined role in
maintaining an informed citizenry, and Government intrusion
upon the media must be balanced against the values inherent in
the unfettered operation of the press. As the State Supreme
Court of Florida recognized before that State enacted a
legislative protection for journalists, ``The First Amendment
is clearly implicated when Government moves against a member of
the press because of what she has caused to be published.''\5\
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\4\The Hawaii legislature passed a media shield law in 2008, but it
expired in June 2013.
\5\Morgan v. State, 337 So.2d 951, 956 (Fl. Sup. Ct. 1976)
(quashing a grand jury subpoena where the investigation involved a
grand jury leak, not the investigation of a crime itself).
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Drawing from this lengthy history of carefully calibrated
state protections for journalists, the Free Flow of Information
Act similarly adopts a series of balancing tests in order to
address the needs of law enforcement and civil litigants on one
hand, and the freedom of the press and the public's right to
know, on the other.
B. INCREASE IN FEDERAL SUBPOENAS TO JOURNALISTS AND CONGRESS' RESPONSE
IN THE FREE FLOW OF INFORMATION ACT
This bill responds, in part, to an increase in the
frequency with which subpoenas are issued to journalists by
Federal entities. There is clear evidence that the number of
subpoenas continues to grow, despite a lack of consensus on the
actual number.
In a September 26, 2007, views letter to the Judiciary
Committee, the Department of Justice (``DOJ'') stated: ``Since
1991, the Department has approved the issuance of subpoenas to
reporters seeking confidential source material in only 19
cases.''\6\ However, there is some doubt as to whether this
number is accurate.\7\ Assuming for the sake of argument that
this number is accurate, it does not fully capture the
burgeoning problem of subpoenas to reporters for the following
reasons: First, it does not take into account subpoenas from
special prosecutors. For example, there were at least 10
subpoenas issued in the Valerie Plame CIA leak case that were
not counted among the 19 subpoenas cited by the Department
because they were issued by Special Prosecutor Patrick
Fitzgerald.\8\
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\6\According to data provided to the Committee by the Department of
Justice, the Department has issued ``source-related'' subpoenas in 12
cases between January 2007 and September 2013. The Department defines
``source-related'' subpoenas to included subpoenas and court orders
(issued pursuant to section 2703(d) of the Electronic Communications
Privacy Act) that seek information that could reveal or disclose the
identity of a confidential source. According to the Department, the
Attorney General has authorized the issuance of subpoenas to members of
the news media seeking information about the identify of a source of
leaks of law enforcement information, where the news media did not
maintain that the individual was a confidential source, on two
occasions since 2007. The Attorney General has also authorized the use
of a subpoena or 2703(d) court order to identify a person who used, or
attempted to use, the news media to threaten the health or safety of a
public official on three occasions since 2007, according to the data
provide by Department of Justice.
\7\In 2001, the Bush Administration asserted that between 1991 and
2001, the Attorney General authorized 17 subpoenas to the media for
confidential source information in criminal cases. See Letter from
Daniel J. Bryant, Assistant Attorney General, Department of Justice, to
the Hon. Charles E. Grassley, United States Senate, Nov. 28, 2001. This
would suggest that only two more had been issued after 2001, although
public records reveal that at least 12 reporters were subpoenaed for
confidential information between 2001 and 2007.
\8\See, e.g., Susan Schmidt, ``Reporters' Files Subpoenaed,'' The
Washington Post, A16, September 10, 2004, available at http://
www.washingtonpost.com/wp-dyn/articles/A9890-2004Sep9.html.
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Second, the number provided by the Department of Justice in
2007 does not take into account Federal subpoenas for
confidential information in civil cases. Federal courts have
recently started compelling journalists to disclose the
identities of confidential sources to civil litigants seeking
monetary damages--a break from a nearly 50-year precedent of
not requiring journalists to disclose confidential sources in
civil cases to which they are not parties. Recently,
journalists have been subpoenaed in high-profile civil cases,
such as in the Privacy Act lawsuit against the Government
brought by Steven Hatfill as ``a person of interest'' in the
2001 anthrax investigations, in which at least a dozen
subpoenas were issued to reporters, as well as in the Wen Ho
Lee Privacy Act lawsuit that resulted in six reporters being
subpoenaed.\9\
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\9\See Rachel Smolkin, ``Under Fire,'' American Journalism Review,
February/March 2005, available at http://www.ajr.org/
article.asp?id=3810.
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Indeed, according to one published empirical study, a
survey of newsrooms revealed that in 2006 alone, 34 Federal
subpoenas were issued for confidential information, with an
estimated 21 of these specifically seeking information that
would identify a confidential source. Statistical extrapolation
of the data in this study suggests that the total number of
Federal subpoenas in 2006 for confidential information was
likely 67, and that 41 of those sought information that would
identify a confidential source.
The Justice Department's statistics also fail to account
for the recent increase in Federal subpoenas related to leak
investigations. Indeed, the need for the Free Flow of
Information Act has never been more pressing than now.
In May 2013, the Associated Press (``AP'') learned that the
Justice Department had secretly subpoenaed AP call records from
April and May 2012, affecting more than 100 journalists and
covering more than 20 phone lines, including work, home, and
cell phones; bureaus in three different cities (New York City;
Hartford, CT; and Washington, DC); and the AP line at the House
of Representatives press gallery. Because the AP received no
notice before the Justice Department obtained its records, it
could not challenge the subpoena in court. As for why
negotiations with the AP were not initially pursued, the
Department stated generally, ``Although the ongoing nature of
the investigation prevents us from sharing additional details
about this case, there are a number of reasons--depending on
the circumstances of a given case--that may lead the Department
to refrain from negotiating with a media organization before
seeking a subpoena for telephone toll records. For example,
through the negotiation process, the potential target (the
leaker) could become aware of the investigation, its focus, and
its scope, and seek to destroy evidence, create a false
narrative as a defense, or otherwise obstruct the
investigation.''\10\
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\10\Letter from Principal Deputy Attorney General Peter J. Kadzik
to Hon. Bob Goodlatte, June 4, 2013.
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The investigation was related to the unauthorized
disclosure of classified information in violation of the
Espionage Act in connection with a May 7, 2012, story by the AP
about how the CIA thwarted a second attempted underwear bomb
plot. According to AP President and CEO Gary Pruitt, ``We held
that story until the government assured us that the national
security concerns had passed. Indeed, the White House was
preparing to publicly announce that the bomb plot had been
foiled.''\11\ However, the Justice Department maintains that
the publication of the story did grave harm to national
security and that the Department had only informed the AP that
concerns over the physical safety of the source had been
alleviated prior to the publication.
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\11\Statement from Gary Pruitt, President and CEO of The Associated
Press, May 14, 2013, available at: http://blog.ap.org/2013/05/13/ap-
responds-to-intrusive-doj-seizure-of-journalists-phone-records/.
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Also in May 2013, it was revealed that the Justice
Department had seized the content of Fox News reporter James
Rosen's Gmail account in 2010. In obtaining the warrant, the
Justice Department had convinced a judge that there was
probable cause to believe that Rosen was an ``an aider and
abettor and/or co-conspirator'' to a violation of the Espionage
Act. The Justice Department had also subpoenaed Rosen's phone
records and State Department security badge access records.
These efforts were in support of the prosecution of former
State Department official Stephen Jin-Woo Kim, who was charged
under the Espionage Act for allegedly sharing with Rosen that
North Korea had planned to respond to new UN sanctions with
another nuclear test.
James Risen, a book author and New York Times investigative
reporter, was subpoenaed three times in the Espionage Act
prosecution of former CIA official Jeffrey Sterling, who was
accused of being the source for a chapter in Risen's book,
``State of War: The Secret History of the CIA and the Bush
Administration,'' about a failed CIA operation against Iran's
nuclear program. First, a Federal grand jury issued a subpoena
under the Bush Administration, but the grand jury's term
expired and Risen was not forced to testify about his source. A
second grand jury subpoenaed Risen under the Obama
Administration, but the Federal judge presiding over the case
granted Risen's motion to quash. Finally, the Federal
prosecutor issued a trial subpoena. The judge again quashed the
subpoena, but her ruling was overturned in July 2013 by the
U.S. Court of Appeals for the Fourth Circuit. Risen's request
for a re-hearing en banc by the Court of Appeals was denied on
October 15, 2013.\12\
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\12\See United States v. Sterling, No. 11-5028, Order, October 15,
2013.
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At the very least, regardless of whether the Free Flow of
Information Act would have affected the final outcome (the
production of material from the covered journalist or a third
party) in any of these scenarios, the Act would have provided
for a predictable balancing test--a test that would be
administered by an Article III judge.
In sum, Federal subpoenas for confidential source
information come from a number of parties, including the
Justice Department and special prosecutors appointed by the
Justice Department, as well as civil litigants in Federal
courts where Federal judges make determinations on motions to
quash such subpoenas. A Federal shield law is needed in order
to protect against a return to the late 1960s, when subpoenas
to reporters had become not only frequent but virtually de
rigueur.\13\
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\13\See, e.g., Lucy A. Daglish & Casey Murray, Deja Vu All Over
Again: How A Generation of Gains in Federal Reporters' Privilege Is
Being Reversed, 29 Univ. Ark. Little Rock L. Rev. 13 (2006) (explaining
the history of Federal subpoenas to reporters).
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C. HOW THE FREE FLOW OF INFORMATION ACT ADDRESSES CURRENT PROBLEMS
In order to provide predictable guidelines in Federal court
and curb the use of subpoenas (or other compulsory process) to
covered journalists, this bill provides for the following clear
rules.
In criminal cases, the bill provides that the party seeking
to compel disclosure must first exhaust all reasonable
alternative sources of the protected information; that there
must be reasonable grounds to believe that a crime has
occurred; that there must be reasonable grounds to believe that
the information is essential to the investigation, prosecution,
or defense of a crime or criminal case (from sources other than
the journalist); that the Attorney General must certify that
he, or she, has complied with the applicable regulations
governing compelled disclosure from journalists; and finally,
that the burden is on the covered journalist to show by clear
and convincing evidence that forced disclosure of the
confidential information would be contrary to the public
interest. This language ensures that the court gives full force
to the criminal justice system's need for ``every man's
evidence''\14\ while taking account of the press' need to
function without undue governmental interference.
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\14\8 Wigmore, Evidence 2191, 2192, 2285 (McNaughton rev. 1961).
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In civil cases, the bill provides that disclosure may not
be compelled unless the party seeking disclosure first exhausts
all reasonable alternative sources of the protected
information; that the protected information is essential to the
resolution of the case; and that the party seeking disclosure
demonstrates 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.'' This language ensures that the
Act's protections against disclosure in civil litigation are
significantly stronger than under the Act's analogous
provisions governing criminal cases, and also stronger than the
current protections that have been applied by Federal courts on
an ad hoc basis.
In cases involving alleged leaks of properly classified
information, the bill allows the Government to obtain
confidential source material from a covered journalist when it
can show by a preponderance of the evidence that the
information would ``materially assist . . . in preventing or
mitigating an act of terrorism or other acts that are
reasonably likely to cause significant and articulable harm to
national security.'' Additionally, the potential for a
subsequent unlawful disclosure of information by the source
sought to be identified is not sufficient to establish likely
significant and articulable harm to national security. In any
other case that involves national security, the Government may
obtain the information if it can show by a preponderance of the
evidence that the information would ``materially assist in
preventing, mitigating, or identifying the perpetrator of an
act of terrorism or other acts that have caused or are
reasonably likely to cause significant and articulable harm to
national security.'' If the Government is not able to make
these showings in a national security case, the court would be
required to apply the balancing test applicable to ordinary
criminal cases as set forth in Section 2.
In these cases, a Federal court shall give appropriate
deference to a specific factual showing by the Federal
government--something courts are accustomed to doing in
analogous contexts, such as Freedom of Information Act
cases.\15\
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\15\See, e.g., Center for Int'l Env. Law v. Office of U.S. Trade
Representative, 718 F.3d 899 (D.C. Cir. 2013). As evidenced by this and
other cases, courts can and do routinely make decisions about the
Government's national security interest (as in state secrets cases) and
classification decisions (as in Freedom of Information Act cases).
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These balancing tests--coupled with the exceptions to the
privilege that are also created by the bill--give generous
berth for the Government to obtain the vital information that
it needs in order to protect public safety, as well as for
private litigants and criminal defendants to obtain information
in appropriate circumstances.\16\ At the same time, these
provisions prevent journalists from becoming the witnesses of
choice in civil and criminal cases.
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\16\Contrary to the assertions made in the ``Additional Views,''
the Free Flow of Information Act will not interfere with legitimate law
enforcement or national security investigations. First, the vast
majority of the hypothetical and factual scenarios posited in the
``Additional Views'' did not, and would not, involve protected
information obtained from covered journalists. Second, the remaining
scenarios discussed in the Additional Views would likely have been
capably handled in Section 5 of the Act. Finally, the authors of the
Additional Views make internally contradictory arguments against the
Act. It cannot be that the need for the bill is minimal because
``subpoenas to journalists are rare,'' and at the same time, argue that
the enactment of the bill ``would seriously impede important criminal
investigations and prosecutions.'' In fact, as evidenced by the fact
that every state except Hawaii and Wyoming has a reporters' privilege
in place, criminal enforcement has not historically been hampered by
the presence of such a protection. The authors of the Additional Views
do not discuss the myriad other tools at the disposal of law
enforcement other than subpoenas to journalists who rely on
confidential information.
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D. THE CHILLING EFFECT OF THE CURRENT STATE OF THE LAW ON THE FREE
PRESS
Current uncertainty--exacerbated by well-publicized cases
of reporters being held in contempt of court or turning over
information that was subject to a promise of confidentiality--
has risked creating a broad chilling effect. As William Safire,
conservative columnist for the New York Times has explained,
``the essence of newsgathering is this: if you don't have
sources you trust and who trust you, then you don't have a
solid story--and the public suffers for it.'' Former Time
magazine Editor Norman Pearlstine, in testimony before the
Senate Judiciary Committee, stated that after Time Magazine
complied with a court order and turned over notes of journalist
Matt Cooper, Time lost valuable sources ``who insisted that
they no longer trusted the magazine and that they would no
longer cooperate on stories.''
More recently, and in light of the increase in Federal
subpoenas described above, editors and reporters have noticed a
renewed chilling effect that compelled disclosure of
confidential sources has had on newsgathering. According to AP
Chief Executive and President Gary Pruitt, ``some of our long-
trusted sources have become nervous and anxious about talking
to us--even on stories that aren't about national security.''
Pruitt went on to say that ``[i]n some cases, government
employees that we once checked in with regularly will no longer
speak to us by phone and some are reluctant to meet in
person.''\17\
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\17\Lindy Royce-Bartlett, CNN, ``Leak probe has chilled sources, AP
exec says'' (June 19, 2013), http://www.cnn.com/2013/06/19/politics/ap-
leak-probe/index.html.
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Historically, the use of subpoenas by the Federal
Government has ebbed and flowed such that the use of subpoenas,
even when legitimate, has the taint of politicization. As one
scholar observed:
Prior to the late 1960s and early 1970s, there were
few cases in which either the government or private
parties subpoenaed reporters. In the late 1960s and
early 1970s, the government subpoenaed journalists with
increased regularity, attributed to the rise of ``left
wing'' groups that were perceived by the government as
a threat to American society. Since Branzburg [v.
Hayes], the volume of subpoenas directed at reporters
has not subsided; rather, it has markedly
increased.\18\
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\18\Joel G. Weinberg, ``Supporting the First Amendment: A National
Reporter's Shield Law,'' 31 Seton Hall L.J. 149, 162 (2006).
The Free Flow of Information Act would create more
certainty for journalists, law enforcement, and confidential
sources so that the free flow of information between
journalists and their sources--and ultimately the public--is
protected from unnecessary interference, and legitimate uses of
compelled disclosure are preserved.
As stated in a letter submitted by a broad coalition of
media groups to the Committee in support of S. 987: ``The press
is the public's watchdog charged with uncovering government and
corporate abuses. Government surveillance of journalists
creates a chilling effect in newsrooms and among potential
sources, depriving the American people of important news and
public accountability. The only way to limit this government
overreach is through passage of a law that lays out clear rules
for when the government can obtain information about
journalists and their sources.''\19\
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\19\Letter in Support of S.987 (July 26, 2013), signed by A&E
Television Networks, LLC; A.H. Belo Corporation; ABC Inc.; Advance
Publications, Inc.; Allbritton Communications Co.; American Society of
News Editors; Associated Press Media Editors; Association of
Alternative Newsmedia; Association of American Publishers, Inc.; Below
Corp.; California Newspaper Publishers Association; CBS Corporation;
Center for Public Integrity; CNN; Cox Enterprises, Inc.; Cox Media
Group; Daily News, LP; Dow Jones & Company, Inc.; E.W. Scripps; First
Amendment; First Amendment Coalition of Arizona; First Amendment
Project; Forbes Inc.; Fox News Network LLC; Fox Television Stations,
Inc.; Fusion; Gannett Co., Inc.; LIN Media; McGraw Hill Financial,
Inc.; McGraw-Hill Education; Media Law Resource Center; MP--The
Association of Magazine Media; National Association of Broadcasters;
National Cable & Television Association; National Geographic Society;
National Newspapers Association; National Press Club; National Press
Photographers Association; National Writers Union; NBCUniversal; News
Corporation; Newspaper Association of America; North Jersey Media Group
Incl.; NPR; Online News Association; Pennsylvania NewsMedia
Association; POLITICO LLC; Radio Television Digital News Association;
Raycom Media, Inc.; Regional Reporters Association; Reporters Committee
for Freedom of the Press; Reuters; Society of Professional Journalists;
Software and Information Industry Association; Stephens Media; Student
Press Law Center; Texas Association of Broadcasters; Texas Press
Association; The Associated Press; The Authors Guild; The McClatchy
Company; The New York Times Company; The Newspaper Guild-CWA; The
Newsweek/Daily Best Company LLC; The Washington Post; Time Inc.;
Tribune Company; U.S. News & World Report; USA Today.
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E. STATUS OF THE CURRENT FEDERAL LAW
The current confusion regarding the scope of a Federal
journalists' privilege arose 41 years ago when the Supreme
Court decided Branzburg v. Hayes, 408 U.S. 665 (1972). In
Branzburg, the Court held that the press' First Amendment right
to publish information does not include a right to keep
information secret from a grand jury that is investigating a
criminal matter. The Supreme Court also held that the common
law did not exempt a reporter from every other citizen's duty
to provide information to a grand jury.
The Court reasoned that just as newspapers and journalists
are subject to the same laws and restrictions as other
citizens, they are likewise subject to the same duty to provide
information to a court as other citizens. However, Justice
Powell, who joined the 5-4 majority, wrote a separate
concurrence in which he explained that the Court's holding was
not an invitation for the Government to harass journalists. If
a journalist could show that the grand jury investigation was
being conducted in bad faith, she could ask the court to quash
the subpoena. In the most influential part of his concurrence,
Justice Powell indicated that courts might assess such claims
on a case-by-case basis by balancing the freedom of the press
against the obligation to give testimony relevant to criminal
conduct.
In the 41 years since Branzburg, the Federal courts have
split on the question of when the balancing test set forth in
Justice Powell's concurrence creates a qualified privilege for
journalists in the Federal system.
With respect to Federal criminal cases, six circuits--the
First, Fourth, Fifth, Sixth, Seventh and District of Columbia
Circuits (the latter in the context of a grand jury subpoena)--
have applied Branzburg so as not to allow journalists to invoke
the First Amendment to withhold information absent governmental
bad faith.\20\ Four other circuits--the Second, Third, Ninth,
and Eleventh Circuits--recognize a qualified privilege, which
requires courts to balance the freedom of the press against the
obligation to provide testimony on a case-by-case basis.\21\
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\20\In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004)
(finding no privilege for documents prepared without the intent of
public dissemination); McKevitt v. Pallasch, 339 F.3d 530, 532-33 (7th
Cir. 2003) (finding no Federal common law reporter's privilege); United
States v. Smith, 135 F.3d 963, 968-69 (5th Cir. 1998) (holding that
reporters do not enjoy a qualified reporter's privilege protecting non-
confidential work product); In re Shain, 978 F.2d 850, 852-53 (4th Cir.
1992) (holding that absent evidence of governmental harassment or bad
faith, reporters have no testimonial privilege different from any other
citizen); In re Grand Jury Proceedings, 810 F.2d 580, 584-86 (6th Cir.
1987) (finding no reporter's privilege excusing their testimony before
a grand jury); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141
(D.C. Cir. 2006).
\21\In re Grand Jury Proceedings, 5 F.3d 397, 402-03 (9th Cir.
1993) (finding a qualified reporter's privilege protecting grand jury
testimony where the investigation is instituted or conducted in bad
faith); United States v. Caparole, 806 F.2d 1487, 1504 (11th Cir. 1986)
(compelling production from reporters only upon proof that the
information at issue is highly relevant, necessary for proper
presentation of the case, and unavailable from other sources); United
States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (holding that
defendants had not satisfied their burden of showing subpoenaed
documents were highly material, relevant, necessary to the claim, and
unavailable from other sources to overcome the reporter's privilege);
United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)
(extending a qualified reporter's privilege to resource materials and
unpublished materials).
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With respect to Federal civil cases, 9 of the 12 circuits
apply a balancing test when deciding whether journalists must
disclose confidential sources.\22\ One circuit affords
journalists no privilege in any context.\23\ Two other circuits
have yet to decide whether journalists have any privilege in
civil cases.
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\22\Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005) (applying a
three-part balancing test to determine if information can be compelled
from a reporter evaluating relevance, necessity to the case, and
availability); Lee v. Dep't of Justice, 413 F.3d 53, 60-61 (D.C. Cir.
2005) (finding a Federal reporter's privilege but compelling production
because the information sought went ``to the heart'' of the case and
all other sources of the information had been ``exhausted''); Cusumano
v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998) (employing a
balancing test weighing the effects of disclosure on First Amendment
interests and the free flow of information against the interest of the
party seeking disclosure of the reporter's information); LaRouche v.
Nat'l Broadcasting Co., Inc., 780 F.2d 1134, 1139 (4th Cir. 1986)
(adopting a balancing test for determining whether a reporter's
privilege will protect a confidential source-reporter relationship);
United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (drawing no
distinction between civil and criminal cases when applying a balancing
test to determine reporter's privilege); Miller v. Transamerican Press,
Inc., 621 F.2d 721, 726 (5th Cir. 1980) (applying a three-part test to
determine the scope of the privilege not to reveal the identity of a
confidential source in civil suits addressing relevance, availability,
and compelling interest in the information); Riley v. City of Chester,
612 F.2d 708, 716 (3d Cir. 1979) (applying a three-part balancing test
to determine whether a person seeking disclosure from a journalist has
overcome the privilege by showing that the information is material,
relevant and necessary to the party's claims or defenses); Silkwood v.
Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977) (applying a
balancing test evaluating relevancy, accessibility, and the
consequences of granting disclosure against the qualified First
Amendment privilege); Farr v. Pitchess, 522 F.2d 464, 469 (9th Cir.
1975) (applying a balancing test to determine reporter's privilege
weighing First Amendment interests against the interests in
disclosure).
\23\McKevitt v. Pallasch, 339 F.3d 530, 532-533 (7th Cir. 2003)
(finding no Federal reporter's privilege).
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F. DEPARTMENT OF JUSTICE GUIDELINES AND THE FREE FLOW OF INFORMATION
ACT
For 43 years, the Department of Justice has had in place
its own guidelines for determining when the production of
information may be compelled from a journalist.\24\ These
Guidelines require, inter alia, approval of the Attorney
General before such material can be compelled; the exhaustion
of alternative sources of information; and notice to the
journalist when the journalist's records are demanded from a
third party. While the Guidelines do not have the force of law,
they have informed the Free Flow of Information Act. Contrary
to the assertions of the authors of the Additional Views,
insofar as these Guidelines have been less than successful,
such shortcomings stem not from their being ``amorphous,'' but
from the lack of checks-and-balances on their application.
---------------------------------------------------------------------------
\24\The Department of Justice first adopted a policy governing
subpoenas to the news media on August 10, 1970. The policy was
incorporated into the Code of Federal Regulations (50 C.F.R. 50.10) on
Oct. 16, 1973, and updated on Nov. 19, 1980.
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Most notably, the Free Flow of Information Act incorporates
the recent changes that were made to the Guidelines in the wake
of the outcry over the investigations that involved the
Associated Press and Fox News reporter James Rosen.\25\ These
Guidelines revisions provide, inter alia, for a limit on the
number of times that the Department can ask a court to delay,
by 45-day increments, its obligation to notify a member of the
press that the Department of Justice has sought that person's
records. The new Guidelines will ensure that only one extension
can be granted, thus requiring the Department to notify covered
journalists within 90 days. Additionally, the Department's
policies regarding the use of legal process to obtain
information from, or records of, members of the news media will
be revised to make clear that those principles apply to
communication records of members of the news media that are
stored or maintained by third parties. These changes are
reflected in the Free Flow of Information Act as reported by
the Committee.
---------------------------------------------------------------------------
\25\Department of Justice Report on Review of News Media Policies
(July 12, 2013), available at http://www.justice.gov/iso/opa/resources/
2202013712162851796893.pdf.
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More generally, this Act will not dramatically affect the
process that Department of Justice prosecutors must undergo to
subpoena a journalist. Currently, prosecutors must seek
Attorney General approval for such subpoenas pursuant to the
Guidelines, and the Department uses a similar balancing test as
that provided in the bill, weighing the importance of the press
with the prosecution's need for information, to determine
whether to issue a subpoena. This Act removes that decision
from an internal Department matter to the Federal courts,
ensuring more objectivity and independence in the decision-
making process. This Act also removes such decision-making from
taking place behind closed doors to the open court room,
allowing for more public scrutiny and accountability. There may
be times, however, when such decisions have to be made by a
Federal court in camera or under seal to protect national
security. This Act does not alter the Department's ability to
request such protections or a Federal court's ability to make
such a decision.
Indeed, Attorney General Eric H. Holder, Jr., wrote a
letter in support of the Act that renewed his support of the
bill as ``strik[ing] a careful balance between safeguarding the
freedom of the press and ensuring our nation's security and the
safety of the American people.''\26\ The Attorney General
expressed particular support for the expedited judicial review
provisions, which ensure that the Department's determinations
are afforded speedy external review. These provisions cannot be
enacted through guidelines, but rather ``require legislative
action,'' and therefore, merit the Department's support for the
Act.\27\
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\26\Letter from Attorney General Eric H. Holder, Jr., July 29,
2013; see also Letter from Attorney General Eric H. Holder and Director
of National Intelligence Dennis C. Blair, November 5, 2009. (See
Appendix).
\27\The authors of the ``Additional Views'' rely exclusively for
their support on letters written by members of law enforcement and the
intelligence community before the bill was dramatically changed in
2009, and garnered the support of law enforcement and the intelligence
community. In fact, even before 2008, the Act had earned the support of
law enforcement. See Letter from 41 State Attorneys General, June 23,
2008 (see Appendix).
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III. History of the Bill and Committee Consideration
A. THE 109TH CONGRESS
Congress has grappled with the question of whether to
establish a qualified privilege for journalists through Federal
legislation for several years. During the 109th Congress, there
were a number of efforts to craft a journalists' privilege
bill. On February 9, 2005, Senator Lugar introduced S. 340, the
Free Flow of Information Act. On July 18, 2005, Senators Lugar,
Dodd, Jeffords, Lautenberg and Nelson (FL) introduced a revised
version of the Free Flow of Information Act (S. 1419). Senator
Dodd introduced another journalists' privilege bill, S. 369,
but later chose to cosponsor S. 1419. The Free Flow of
Information Act went through another set of revisions and on
May 18, 2006, was introduced as S. 2831 by Senators Lugar,
Specter, Dodd, Schumer and Graham.
Although three hearings were held on the Free Flow of
Information Act, the Judiciary Committee did not report the
bill during the 109th Congress. On July 20, 2005, the Committee
held a hearing on ``Reporters' Privilege Legislation: Issues
and Implications.'' The following witnesses appeared at the
hearing: The Hon. Richard G. Lugar, United States Senator (R-
IN); The Hon. Christopher J. Dodd, United States Senator (D-
CT); The Hon. Mike Pence, United States Representative (R-IN);
Matthew Cooper, White House Correspondent, Time Magazine Inc.;
Norman Pearlstine, Editor-in-Chief, Time Inc.; William Safire,
Political Columnist, New York Times Company; Floyd Abrams,
Partner, Cahill, Gordon & Reindel; Lee Levine, Founding
Partner, Levine, Sullivan, Koch & Schulz; and Geoffrey R.
Stone, Professor of Law, University of Chicago Law School.
On October 1, 2005, the Committee held a hearing entitled,
``Reporters' Privilege Legislation: An Additional Investigation
of Issues.'' The following witnesses appeared at the hearing:
The Hon. Chuck Rosenberg, United States Attorney for the
Southern District of Texas; Joseph E. diGenova, Founding
Partner, diGenova and Toensing; Steven D. Clymer, Professor of
Law, Cornell Law School; Judith Miller, Investigative Reporter
and Senior Writer, The New York Times; David Westin, President,
ABC News; Anne K. Gordon, Managing Editor, The Philadelphia
Inquirer; and Dale Davenport, Editorial Page Editor, The
Patriot News.
On September 20, 2006, the Committee held a hearing
entitled, ``Reporters' Privilege Legislation: Preserving
Effective Federal Law Enforcement.'' The following witnesses
appeared at the hearing: Bruce A. Baird, Partner, Covington &
Burling; Steven D. Clymer, Professor, Cornell Law School; Paul
J. McNulty, Deputy Attorney General, United States Department
of Justice; Theodore B. Olson, Partner, Gibson, Dunn &
Crutcher; and Victor E. Schwartz, Partner, Shook, Hardy &
Bacon.
B. THE 110TH CONGRESS
On May 2, 2007, Senator Lugar introduced the Free Flow of
Information Act of 2007, S. 1267. The bill had four original
cosponsors: Senators Dodd, Graham, Domenici and Landrieu. It
was later joined by Senator McCaskill (5/3/2007), Senator
Lieberman (5/14/2007), Senator Johnson (6/11/2007), Senator
Salazar (6/22/2007), Senator Bayh (9/17/2007), Senator Leahy
(9/20/2007) and Senator Specter (9/26/2007). The bill was
placed on the agenda for the Judiciary Committee executive
business meeting on September 20, 2007. No further action on S.
1267 was taken.
On September 10, 2007, S. 2035, Senator Specter introduced
the Free Flow of Information Act of 2007, S. 2035. The bill had
two original cosponsors: Senators Schumer and Lugar. It was
later joined by Senator Graham (9/25/2007), Senator Dodd (9/26/
2007) and Senator Leahy (10/17/2007).
On September 27, 2007, Chairman Leahy placed the bill on
the agenda for the Judiciary Committee's executive business
meeting. The Committee subsequently favorably reported the bill
as amended by a roll call vote of 15-2, with 2 passes. The vote
record is as follows:
Tally: 15 Yeas, 2 Nays, 2 Pass
Yeas (15): Leahy (D-VT), Specter (R-PA), Kennedy (D-MA),
Hatch (R-UT), Biden (D-DE), Grassley (R-IA), Kohl (D-WI),
Feinstein (D-CA), Feingold (D-WI), Graham (R-SC), Schumer (D-
NY), Cornyn (R-TX), Durbin (D-IL), Cardin (D-MD), Whitehouse
(D-RI)
Nays (2): Kyl (R-AZ) Sessions (R-AL)
Pass (2): Brownback (R-KS), Coburn (R-OK)
C. THE 111TH CONGRESS
On February 13, 2009, Senators Specter, Schumer, Lugar and
Graham again introduced the Free Flow of Information Act, S.
448. Other Senators joined as co-sponsors: Senator Kirsten E.
Gillibrand (D-NY) (3/23/2009); Senator Claire McCaskill (3/23/
2009); Senator Amy Klobuchar (3/30/2009); Senator Patty Murray
(D-WA) (3/30/2009) ; Senator Kay Hagan (D-NC) (5/18/2009);
Senator Edward E. Kaufman (11/5/2009); Senator Tom Udall (D-NM)
(11/18/2009); Senator Patrick J. Leahy (D-VT) (12/14/2009);
Senator Mary Landrieu (D-LA) (2/4/2010); Senator Johnny Isakson
(R-GA) (3/4/2010); and Senator Bernard Sanders (I-VT) (3/9/
2010).
The bill was first placed on the Judiciary Committee's
Executive Calendar on April 23, 2009. After negotiations
between the bill's sponsors and the federal law enforcement,
intelligence, and defense communities, the bill was modified to
further protect the Executive Branch's ability to obtain needed
information in certain delineated situations. The changes
garnered the support of the Administration. This amended
version that resulted was introduced by Senators Schumer and
Specter in Committee and adopted by unanimous consent on
November 19, 2009 (HEN09B24). The November 19 version
superseded two Schumer-Specter amendments that were introduced
and adopted at earlier markups.
The Committee subsequently favorably reported the bill as
amended on December 10, 2009, by a roll call vote of 14-5. The
vote record is as follows:
Tally: 14 Yeas, 5 Nays
Yeas (14): Leahy (D-VT), Kohl (D-WI), Hatch (R-UT),
Feinstein (D-CA), Grassley (R-IA), Feingold (D-WI), Schumer (D-
NY), Graham (R-SC), Cardin (D-MD), Whitehouse (D-RI), Klobuchar
(D-MN), Kaufman (D-DE), Specter (D-PA), Franken (D-MN)
Nays (5): Sessions (R-AL), Durbin (D-IL), Kyl (R-AZ),
Cornyn (R-TX), Coburn (R-OK)
D. THE 113TH CONGRESS
On May 16, 2013, Senators Schumer and Graham again
introduced the Free Flow of Information Act, S. 987. Other
Senators joined as co-sponsors of the bill: Senator Max Baucus
(D-MT) (5/21/2013); Senator Michael F. Bennet (D-CO) (5/21/
2013); Senator Barbara Boxer (5/21/2013); Senator Maria
Cantwell (D-WA) (5/21/2013); Senator Tom Harkin (D-IA) (5/21/
2013); Senator Amy Klobuchar (D-MN) (5/21/2013); Senator Patty
Murray (D-WA) (5/21/2013); Senator Jon Tester (D-MT) (5/21/
2013); Senator Tom Udall (D-NM) (5/21/2013); Senator Johnny
Isakson (R-GA) (5/22/2013); Senator Tammy Baldwin (D-WI) (6/3/
2013); Senator Richard Blumenthal (D-CT) (6/3/2013); Senator
Blunt (R-MO) (6/3/2013); Senator Kirsten E. Gillibrand (D-NY)
(6/10/2013); Senator Claire McCaskill (D-MO) (7/17/2013);
Senator Christopher A. Coons (D-DE); Senator Mazie K. Hirono
(D-HI) (7/25/2013); and Senator Patrick Leahy (D-VT) (9/12/
2013).
On July 25, 2013, Chairman Leahy placed the bill on the
Judiciary Committee's business agenda. On August 1, 2013,
Senator Schumer offered a substitute amendment to the bill
(ALB13660) that the Committee adopted by unanimous consent.
On September 12, 2013, the Committee resumed consideration
of the bill and Senator Feinstein offered an amendment
(ALB13737) that would provide a new definition for ``covered
journalist'' to replace the definition of ``covered person'' in
the bill. The Committee adopted the amendment by a roll call
vote. The vote record is as follows:
Tally: 13 Yeas, 5 Nays
Yeas (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
(R-IA), Hatch (R-UT), Graham (R-SC)
Nays (5): Sessions (R-AL), Cornyn (R-TX), Lee (R-UT), Cruz
(R-TX), Flake (R-AZ)
Senator Sessions offered an amendment (OLL13447) that would
establish an exception for leaks of classified information. The
Committee rejected the amendment by a roll call vote. The vote
record is as follows:
Tally: 6 Yeas, 11 Nays, 1 Present
Yeas (6): Hatch (R-UT), Sessions (R-AL), Cornyn (R-TX), Lee
(R-UT), Cruz (R-TX), Flake (R-AZ)
Nays (11): Leahy (D-VT), Schumer (D-NY), Durbin (D-IL),
Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-MN), Coons (D-
DE), Blumenthal (D-CT) Hirono (D-HI), Grassley (R-IA), Graham
(R-SC)
Present (1): Feinstein (D-CA)
Senator Cornyn offered an amendment (ALB13708) that would
ensure that all persons or entities that are protected under
the Free Press Clause of the First Amendment are covered by the
bill's privilege. The Committee rejected the amendment by a
roll call vote. The vote record is as follows:
Tally: 4 Yeas, 13 Nays, 1 Pass
Yeas (4): Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R-
AZ)
Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
(R-IA), Hatch (R-UT), Graham (R-SC)
Pass (1): Feinstein (D-CA)
Senator Cornyn offered an amendment (ALB13698) that would
exempt a Federal employee's disclosure of any nonpublic
personal information of a private citizen from the bill's
privilege. The Committee rejected the amendment by a roll call
vote. The vote record is as follows:
Tally: 7 Yeas, 11 Nays
Yeas (7): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R-AZ)
Nays (11): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-
SC)
Senator Sessions offered an amendment (ALB13683) to ensure
the secrecy of grand jury proceedings. The amendment was
rejected by a roll call vote. The vote record is as follows:
Tally: 7 Yeas, 11 Nays
Yeas (7): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX) and Flake (R-AZ)
Nays (11): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-
SC)
Senator Cornyn offered an amendment (ALB13701) that would
exclude violations of Federal law related to material support
of terrorism from the bill's privilege. The Committee rejected
the amendment by a roll call vote. The vote record is as
follows:
Tally: 7 Yeas, 11 Nays
Yeas (7): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX) and Flake (R-AZ)
Nays (11): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Graham (R-
SC)
The Committee then voted to report the Free Flow of
Information Act of 2013, as amended, favorably to the Senate.
The Committee proceeded by roll call vote as follows:
Tally: 13 Yeas, 5 Nays
Yeas (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley
(R-IA), Hatch (R-UT), Graham (R-SC)
Nays (5): Sessions (R-AL), Cornyn (R-TX), Lee (R-UT), Cruz
(R-TX) and Flake (R-AZ)
IV. Section-by-Section Summary of the Bill
Section 1. Short title
This bill may be cited as the ``Free Flow of Information
Act.''
Section 2. Compelled Disclosure from Covered Journalists
Generally, this section provides covered journalists (see
Section 11(1)) with a qualified privilege when a Federal
litigant seeks to compel them to provide confidential source
information (see Section 11(7)). The qualified privilege
applies differently in criminal and civil cases.
In both civil and criminal cases, the court must determine
that the party seeking disclosure ``has exhausted all
reasonable alternative sources (other than a covered
journalist) of the protected information.'' (Section 2(a)(1)).
The exhaustion requirement does not apply to information
subpoenaed under the exceptions for criminal conduct (Section
3); death, kidnapping, bodily harm, certain offenses against
children and harm to critical infrastructure (Section 4); nor
to terrorist activity or harm to national security (Section 5).
In criminal matters, Section 2(a)(2)(A) provides that the
disclosure of confidential source information can only be
compelled if: the Federal entity that is seeking to compel
disclosure has reasonable grounds to believe that a crime has
occurred, based on information obtained other than from the
covered journalist; there are reasonable grounds to believe
that the testimony or document sought is essential to the
prosecution or the defense,\28\ also based on information
obtained other than from the covered journalist; the Attorney
General certifies that the decision to request compelled
disclosure was made in conjunction with the U.S. Department of
Justice's Policy With Regard to the Issuance of Subpoenas to
Members of the News Media, 28 C.F.R. Sec. 50.10 (``the ``DOJ
Guidelines'');\29\ and the covered journalist has not
established by clear and convincing evidence that disclosure of
the information would be contrary to the public interest in
gathering and disseminating the news at issue and maintaining
the free flow of information.
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\28\The defendant's right to present a defense and cross-examine
evidence that is presented against him or her is enshrined in the
Constitution, and in a case in which a defendant seeks to compel
production of protected information, nothing in this Act would prevent
a court from enforcing the full extent of a defendant's Constitutional
rights.
\29\To be amended pursuant to the Justice Department Report on
Review of News Media Policies (July 12, 2013).
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In matters other than criminal matters, Section 2(a)(2)(B)
states that the disclosure of confidential source material can
only be compelled if: the party seeking to compel disclosure
has exhausted all reasonable alternative sources; there are
reasonable grounds to believe that the testimony or document
sought is essential to the resolution of the matter; and the
party seeking to compel disclosure has established that the
interest in disclosing the information clearly outweighs the
public interest in gathering and disseminating the news, and
maintaining the free flow of information.
When a litigant seeks information, he or she should not be
able to peruse a journalist's files or demand answers to
questions that are outside of the bounds of the information
needed for the case at hand. Therefore, the Act places
limitations on the content of the information, and, to the
extent possible, requires that the information sought be
narrowly tailored in purpose, subject matter and period of time
in order to avoid compelling peripheral, nonessential, or
speculative information (Section 2(b)). There will be times, of
course, where such limitation is neither prudent nor
practicable, especially in cases involving national security
and impending harms. A Federal judge has the ability to make
such a determination.
Finally, Section 2(c) provides that, when the Government
seeks to obtain the protected information from a third party,
rather than submitting the request to the journalist directly,
the legal process standards set forth in 18 U.S.C. Sec. 2703 of
the Electronic Communications Privacy Act continue to apply.
Specifically, 2(c)(1) states that the Act does not preempt the
warrant requirement for Government access to certain
communications records, including the communications content of
a ``covered journalist,'' as set forth in Sec. 2703. Section
2(c)(2) similarly clarifies that the Act does not preempt the
requirements and procedures set forth in Federal Rule of
Criminal Procedure 41.
Section 3. Exception relating to criminal or tortious conduct
The qualified privilege afforded to covered persons in
Section 2 categorically does not apply to any information
obtained as a result of the eyewitness observations, or the
commission, of alleged criminal or tortious conduct (Section
3(a)). In these cases, the covered journalist will have to
provide the information. This exception shall not apply if the
alleged criminal or tortious conduct is the act of
communicating the information at issue (Section 3(b)). In that
case, the standard privilege analysis in Section 2 will apply,
subject to Sections 4 and 5 if the confidential information
sought from the covered journalist would prevent death,
kidnapping, serious bodily injury, an act of terrorism, or harm
to national security as specified in those sections.\30\
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\30\Nota bene that the Privacy Protection Act generally prohibits
the Government in a criminal investigation or prosecution from seizing
materials from a member of the media (42 U.S.C. 2000aa). However, the
Government may do so if there is probable cause to believe that the
member of the media has committed a crime by receiving, possessing, or
communicating national defense or classified information in violation
of the Espionage Act. In contrast, the Free Flow of Information Act
permits a covered journalist to challenge a subpoena or other
compulsory process seeking information that could implicate the
confidential sources even if the journalist may have engaged in
criminal conduct by ``communicating the documents or information at
issue.'' Thus, the Act is intended to preempt the Privacy Protection
Act under these circumstances.
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Section 4. Exception to prevent death, kidnapping, or substantial
bodily harm
The qualified privilege in Section 2 shall not apply to any
protected information that is reasonably necessary to stop,
prevent, or mitigate a specific case of death, kidnapping,
substantial bodily harm, conduct that constitutes a criminal
offense that is a specified offense against a minor (as defined
by Section 111 of the Adam Walsh Act), or incapacitation or
destruction of critical infrastructure. The purpose of this
section is to establish that the privilege does not apply to
any information a journalist may obtain with regard to serious
future and imminent harm. Thus, because prevention of serious
and imminent harm is so fundamental to the public interest, a
judge need not engage in the usual balancing in such
circumstances. In these cases, the qualified privilege is
inapplicable.
Section 5. Exception to prevent terrorist activity or harm to national
security
Generally, this section provides the framework for Federal
courts to use in cases involving leaks of properly classified
information, as well as cases involving national security and
acts of terrorism.
In a criminal investigation or prosecution of the allegedly
unlawful disclosure of properly classified information, Section
2's privilege does not apply if the court finds by a
preponderance of the evidence that the protected information
would materially assist the Federal Government in preventing or
mitigating an act of terrorism or other acts that are
reasonably likely to cause significant and articulable harm to
national security. (Section 5(a)(2)(A)). The potential for the
subsequent unlawful disclosure of information by the source
sought to be identified shall not, by itself, be sufficient to
demonstrate such harm. (Section 5(d)).
In any other criminal investigation or prosecution, Section
2's privilege does not apply if the court finds by a
preponderance of the evidence that the protected information
would materially assist the Federal Government in preventing,
mitigating, or identifying the perpetrator of an act of
terrorist or other acts that have caused or are reasonably
likely to cause significant and articulable harm to national
security. (Section 5(a)(2)(B)).
This section also provides that a court must give
appropriate deference to the Administration's determination of
what constitutes harm to national security, based on a
``specific factual showing . . . by the head of any executive
branch agency or department.'' (Section 5(b)). As it stands,
courts generally accord deference to the Administration's
national security determinations, and this bill is intended to
preserve that deference when a reviewable specific factual
showing is made.
This section also provides that in order to make the
showing described above, the Government may not rely
exclusively on the risk that further information may be
revealed in the future. (Section 5(d)). Rather, additional
facts and/or information must be submitted as well. This is to
prevent a court from basing an order to compel testimony based
only on a speculative assertion about future disclosures or
leaks.\31\ If the Government is not able to make these showings
in a national security case, the court would be required to
apply the standards and balancing tests applicable to ordinary
criminal cases as set forth in Section 2.
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\31\Additionally, neither this section of the Act, nor any other
section, removes or limits a court's power to hold proceedings in
camera, under seal, ex parte or use other methods provided for under
the Classified Information Protection Act (CIPA) in order to protect
vital national security information during these hearings.
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There is no question that the protection of national
security is of utmost importance to the United States.
Therefore, proper safeguards must be in place to allow the
Government to protect and defend the nation. There is also no
question that leaks of properly classified information, when
they are likely to cause harm to the nation, must be
investigated and prosecuted to the full extent of the law. This
is why there is a different analytical framework--with
heightened burdens for journalists--in Section 5, which covers
national security and classified leak-related cases, than in
Section 2, which covers run-of-the-mill criminal and civil
cases. In order to protect the public's ability to understand
the critical policy choices of the Federal Government and avoid
a chilling effect on legitimate newsgathering, Section 5 does
require the Government to make a credible showing that harm to
national security or an act of terrorism is actually at stake.
When that showing is made, the information may be obtained; a
prosecutor should not, however, be able to hide behind an
overbroad and unreasonable claim of harm. The Act allows the
Government to obtain needed and important information in every
case in which an appropriate and specific showing is made.
Section 6. Compelled disclosure from service providers
In general, the privilege applies to requests for
information about a person who is known to be, or reasonably
likely to be, a covered person under this Act. The intent of
this section is to prevent a litigant from undercutting the
Free Flow of Information Act when a covered journalist's
records are held by a third party. Therefore, the privilege
applies to any requests to any commercial entity that maintains
records related to a covered person and any person who
transmits information of the customer's choosing by electronic
means. A party or a court generally may not compel disclosure
of this information unless the covered person has received
notice of the request and an opportunity to be heard before a
Federal judge.
Section 6(a)(2) provides, however, that in the case of
national security letters that are issued under 18 U.S.C.
Sec. 2709, the requirements in Section 2 that there are
reasonable grounds to believe that a crime has occurred and
that the Attorney General has certified compliance with his or
her own guidelines do not apply.
Section 6(c) provides that a judge may delay notice and an
opportunity to be heard for up to 45 days if the judge
determines by clear and convincing evidence that such notice
would pose a clear and substantial threat to the integrity of a
criminal investigation, would risk grave harm to national
security, or would present an imminent risk of death or serious
bodily harm. A judge may extend this period by one additional
45-day period based on a new and independent determination of
such risk. Section 6(c)(3) defines ``substantial threat to the
integrity of a criminal investigation'' as occurring when ``the
target of the investigation may learn of the investigation and
destroy evidence if notice is provided.'' It is assumed and
expected that, logically, this subsection shall apply only to
non-public investigations because in public investigations the
target would have likely already heard of the investigation and
attempted to destroy evidence. Section 6(c)(4) provides that a
judge should consider whether notice to the journalist pursuant
to a protective order is sufficient to protect the government's
interests in lieu of delayed notice to the journalist.
Section 6(e) clarifies that the Act is not intended to
preempt the legal process standards in the Electronic
Communications Privacy Act (pursuant to Section 2(c)); however,
it is intended to preempt the notice and delayed notice
provisions of these acts as set forth in 18 U.S.C. Sec. 2703
and Sec. 2705(a).
The requirements under Sec. 2703 and Sec. 2705(a), which
govern when the Government seeks communications records from a
third-party service provider, include notice provisions that
vary based upon the records requested and the legal process
used by the government. By contrast, the default requirement in
Section 6 of the Act is that, regardless of the type of records
requested from a covered service provider or the type of legal
process used, the Government must notify the covered journalist
account holder that his or her account information is sought
from the service provider.
Additionally, Sec. 2703 and Sec. 2705(a) provide that
notice to a customer may be delayed for a 90-day period with
additional, unlimited extensions of 90-day increments. The Act,
however, provides for delayed notice for 45 days plus one
additional 45-day increment. Section 6(e) of the Act preempts
the delayed notice provisions of Sec. 2703 and Sec. 2705(a).
The Act does not preempt 18 U.S.C. Sec. 2705(b), which
permits the Government to obtain a court order commanding a
service provider ``not to notify any other person of the
existence of the warrant, subpoena, or court order'' seeking
the disclosure of the communications records of the account
holder when delayed notice is permitted.
Section 7. Sources and work product produced without promise or
agreement of confidentiality
Section 7 provides that the Act does not supersede, dilute,
or preclude any law or court decision regarding compelled
disclosure of information identifying a non-confidential source
(Section 7(1)) or of non-confidential journalism work product.
Section 8. Procedures for review and appeal
This section provides that upon a showing of good cause, a
judge may consider ex parte submissions; in addition, a judge
may find a covered journalist to be in contempt if the person
fails to comply with an order compelling disclosure of
protected information. This section also provides that a judge
shall make a determination under this Act within 30 days of
receiving the motion, and appeals shall be interlocutory and
expedited.
Section 9. Rule of construction
This section provides that the Act does not preempt
defamation claims; modify grand jury secrecy rules or the
Privacy Act (5 U.S.C. Sec. 552a); create new obligations or
modify authorities under the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. Sec. 1801 et seq.); or preclude the
voluntary disclosure of information.
Section 10. Audit
This section requires the Inspector General of the
Department of Justice to conduct a comprehensive audit under
the Act, covering the period beginning on the date of enactment
and ending on December 31, 2016. Such audit shall be provided
to the Committees on the Judiciary and Intelligence in both the
Senate and the House of Representatives, and shall be provided
to the Director of National Intelligence for comment.
Section 11. Definitions
(1) Covered Journalist is defined in one of three ways:
First, a covered journalist may be a person who is at
the time of receiving the subpoena or other legal
process, or was at the time of receiving the protected
information an employee, independent contractor, or
agent of an entity or service that disseminates news or
information by means of a newspaper, nonfiction book,
wire service, news agency, news website, mobile
application or other news or information service, news
program, magazine or other periodical, in a variety of
formats; or through television or radio broadcast,
multichannel video programming, or a variety of
broadcast methods. This covered journalist must have
had the primary intent to investigate and gather news
by enumerated methods, had such intent at the beginning
of the newsgathering process, and obtained the news in
order to disseminate it.
Second, a covered journalist may be a person who at
the inception of the process of gathering the news or
information, had the primary intent to investigate and
gather news and obtained the news in order to
disseminate it by a means listed in the previous
definition, and, either had a relationship with an
entity or service as outlined in subclause (i)(I)(aa)
for a continuous one-year period within the last 20
years or a continuous three-month period within the
last five years; had substantially contributed in
enumerated ways to a significant number of items within
the last five years; or was a college journalist.
Third, a covered journalist may be a person for whom
a judge ``may exercise discretion [to find] . . . based
on specific facts contained in the record'' should be
protected ``in the interest of justice'' and if
``necessary to protect lawful and legitimate news-
gathering activities under the specific circumstances
of the case.''
Covered journalist does not under any circumstance
include a foreign power, foreign terrorist
organization, or any entity that is defined or
designated by: the Foreign Terrorist Surveillance Act
of 1998 (50 U.S.C. Sec. 1801); the Immigration and
Nationality Act (8 U.S.C. Sec. 1189(a)); a Specially
Designated Global Terrorist by the Department of
Treasury under Executive Order 13224 (50 U.S.C.
Sec. 1701); 31 C.F.R. 595.311; or the Immigration
Nationality Act (8 U.S.C. Sec. 1182(a)(3)(B)(vi)(II);
or those who commit or attempt to commit the crimes of
terrorism or providing material support to terrorism,
as defined in various parts of Title 18. Aiders and
abetters of the aforementioned are also excluded from
coverage. In addition, a ``covered journalist'' does
not under any circumstance include someone whose
principal function is to publish primary source
documents that have been disclosed without
authorization.\32\ The judiciary discretion under
paragraph (B) does not include any authority to make an
exception to the exclusions under subparagraph
(A)(iii).\33\
---------------------------------------------------------------------------
\32\This carve-out is more than ample to address the issues
pertaining to Pvc. Bradley Manning in the ``Additional Views.''
\33\The authors of the ``Additional Views'' criticize the
definition of ``covered journalist'' for being too broad, but also for
being too narrow and thereby raising First Amendment concerns. In fact,
the definition of ``covered journalist'' draws a clear and
administrable line between those who are actual journalists and those
who would try to hide behind the cloak of journalism in order to harm
our country--a scenario which has never occurred. In addition, the bill
does not purport to supplant the full scope of First Amendment
protections offered to the press. The First Amendment allows everyone
to publish, and journalists cannot be licensed by the government.
However, not everyone can refuse to comply with an otherwise valid
court order to testify. Other testimonial privileges like the attorney-
client or the doctor-patient privileges are easy to apply: anyone who
is a licensed attorney or physician cannot be compelled to testify
about clients or patients. But because journalists are not licensed,
the Free Flow of Information Act must include a definition of who
qualifies to invoke the privilege to protect a confidential source.
Thus, while every citizen is free to publish pursuant to the First
Amendment, the Free Flow of Information Act would delineate who may
resist a court order to testify in federal court and who may not. State
shield laws also include similar definitions without impeding the right
of all state residents to publish, and another federal statute--the
Freedom of Information Act (FOIA)--includes a definition of ``news
media'' for purposes of determining who may be granted a fee waiver
under the law without undermining the right to publish.
---------------------------------------------------------------------------
(2) Covered Service Provider means a telecommunications
carrier or information service, an interactive computer
service, a remote computing service, an electronic
communications service, or any commercial entity that maintains
records related to a covered journalist.
(3) Document is defined as writings, recordings, and
photographs as defined by Rule 1001 of Federal Rules of
Evidence (28 U.S.C. App.)
(4) Federal Entity is defined as a Federal court,
legislative branch, or administrative agency of the Federal
Government with the power to issue or enforce a subpoena or
other compulsory process.
(5) Judge of the United States includes judges of the
courts of appeals, district courts, Court of International
Trade and any court created by an Act of Congress. The term
does not include magistrate judges or grand juries.
(6) Properly classified information means information that
is classified in accordance with any applicable Executive
orders, statutes, or regulations.
(7) Protected Information is defined as information
identifying a source or any records, contents of communication,
documents, or information obtained by a covered person engaged
in journalism under the promise or agreement that such
information would be confidential.
(8) Relevant Date means the date on which the protected
information sought was obtained or created by the person
asserting protection under this Act.
V. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S. 987,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
October 30, 2013.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 987, the Free Flow
of Information Act of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 987--Free Flow of Information Act of 2013
S. 987 would exempt journalists from being compelled to
disclose protected information (confidential sources or related
records, communications, or documents) unless a court finds
that a specified exception applies. Based on information
provided by the Department of Justice (DOJ), CBO estimates that
implementing the legislation would cost $2 million over the
2014-2017 period, subject to the availability of appropriated
funds. Enacting S. 987 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
Under the legislation, journalists could be compelled to
disclose protected information when at least one of the
following exceptions applies:
The party seeking protected information has
exhausted reasonable alternative sources.
In criminal investigations or prosecutions, there
are reasonable grounds to believe a crime has occurred; the
Attorney General has certified that the decision to request
compelled disclosure is consistent with federal regulations;
the sources or records sought are essential to the
investigation, prosecution, or defense; and the journalist has
not sufficiently shown that disclosure would be contrary to the
public interest.
The protected information sought is essential to
the resolution of the matter, and the public interest in
compelling disclosure of the information involved outweighs the
public interest in gathering or disseminating news information.
The protected information was obtained during the
alleged criminal conduct of the reporter.
The information sought is necessary to prevent
certain actions, including death and kidnapping, among others.
The information sought would materially assist the
government in preventing or mitigating an act of terrorism or
other act that could harm national security.
Under the bill, covered service providers (including
telecommunications carriers and Internet service providers)
could not be compelled to provide testimony or documents
relating to a reporter's phone, email, and computer use, unless
one of the above exceptions applies.
S. 987 also would require the DOJ Inspector General to
conduct an audit of the effects of the bill's provisions during
the period between enactment and December 31, 2016, and to
submit a report to the Congress by June 30, 2017.
Under current law, requests to subpoena journalists on
matters related to federal cases typically originate within
DOJ. Federal prosecutors can request a subpoena of a journalist
from a court after an internal review by DOJ. Information from
the department indicates that very few subpoena requests
seeking confidential-source information are approved each year
(there were a total of 12 over the 2007-2013 period) and that
it is unlikely that the bill would substantially increase the
number of such requests.
Journalists may challenge some subpoenas under current law,
and S. 987 would clarify the instances when a journalist would
be compelled to produce information or testify. The bill might
increase federal attorneys' litigation duties if more subpoenas
would be challenged than under current law, but given the small
number of potential cases, CBO estimates that any increase in
federal spending would be insignificant.
Based on information provided by DOJ, we expect that the
department would need to hire about three people to carry out
the audits required by S. 987. CBO estimates that it would cost
about $500,000 annually over the 2014-2017 period for DOJ to
complete the audits and report required by the bill. Such
spending would be subject to the availability of appropriated
funds.
S. 987 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Martin von
Gnechten. The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
VI. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 987.
VII. Conclusion
The Free Flow of Information Act establishes a clear,
uniform Federal standard for protecting confidential source
information that is long overdue. Enacting this legislation
will ensure that confidential sources will continue to speak
freely and openly to the press and ensure the free flow of
information to the American public.
VIII. Minority Views
----------
MINORITY VIEWS FROM SENATORS SESSIONS AND CORNYN
OVERVIEW
Introduction
S. 987, the ``Free Flow of Information Act of 2013,'' would
dramatically shift the process by which law enforcement goes
about compelling disclosure of information from journalists.
This bill would seriously impede important criminal
investigations and prosecutions, including those dealing with
cases of terrorism and harm to the national security.
Members of the law enforcement and intelligence communities
have had serious and longstanding concerns with similar
legislation introduced in previous Congresses. Not only does
the bill passed by the Judiciary Committee fail to address
these concerns, but the Senate has not held a hearing on the
issue of a journalist's privilege since 2006, failing to
provide a forum in which these concerns could be voiced. Nor
have members had the opportunity to hear from and pose
questions to the intelligence community in a classified
setting. As this bill would impose significant limitations upon
the ability of federal prosecutors to investigate and prosecute
serious crimes, including terrorist attacks, harms to national
security, and leaks of classified information, we strongly
oppose S. 987.
Any great nation with worldwide interests must be able to
conduct secret activities, carry on secure discussions
internally and with foreign nations. These needs have not
changed and will never change. In the last few years, we have
witnessed the proliferation of the most damaging leaks of
classified information in our country's history. For example,
the media has reported on the existence of so-called terrorist
``kill lists,'' a highly classified network of clandestine CIA
prisons in Europe for al-Qaeda captives, and a highly
classified memorandum revealing administration misgivings about
the prime minister of Iraq--a leak described by one government
official as among the most damaging in recent memory. The leak
of a highly classified report that the United States had been
monitoring a major communications channel used by al-Qaeda
leader Ayman al Zawahiri and Nasser al Wuhayshi, the head of
the Yemen-based al-Qaeda in the Arabian Peninsula, recently was
described by some Obama administration officials as having
caused ``more immediate damage to American counterterrorism
efforts than the thousands of classified documents disclosed by
Edward Snowden, the former National Security Agency
contractor.''\1\
---------------------------------------------------------------------------
\1\Lindsay Wise and Adam Baron, Leaks alerted al Qaida leaders they
were being monitored, U.S. officials claim, McClatchyDC, Sept. 30,
2013.
---------------------------------------------------------------------------
In 2010, Bradley Manning, an intelligence analyst for the
U.S. Army, committed the largest leak of classified information
in U.S. history by giving extraordinarily sensitive
information, including videos of the July 12, 2007 Baghdad
airstrike and the 2009 Granai airstrike in Afghanistan, and
hundreds of thousands of U.S. diplomatic cables and army
reports, to the website ``WikiLeaks.'' Former State Department
spokesman P.J. Crowley stated that Manning's actions ``put real
lives and real careers at risk.''\2\
---------------------------------------------------------------------------
\2\Bradley Manning's supporters relieved over verdict (MSNBC
television broadcast, July 31, 2013), available at http://
video.msnbc.msn.com/now/52632120#52632120 (last visited Oct. 17, 2013).
---------------------------------------------------------------------------
On June 5, 2013, The Guardian published a top secret court
order leaked by former NSA and CIA contractor Edward Snowden,
revealing critical details about U.S. surveillance programs.
According to current and former intelligence officials,
suspected terrorists have changed how they communicate and have
become more difficult to track as a result, leading to a
significant loss of intelligence. Director of National
Intelligence (``DNI'') James Clapper said that the leaks did
``huge, grave damage'' to U.S. intelligence gathering efforts.
Attorney General Eric Holder said ``[t]he national security of
the United States has been damaged as a result of those leaks.
The safety of the American people who reside in allied nations
have been put at risk as a result.''\3\ As of the date of this
printing, the extent of Snowden's crimes is unclear, as new
leaks of classified information directly attributable to him
continue to appear in the press.
---------------------------------------------------------------------------
\3\Holder: Leaks damaged U.S. Security, CNN, June 5, 2012,
available at http://www.cnn.com/2013/06/14/world/europe/nsa-leaks/
index.html?hpt=hp_t1 (last visited Oct. 17, 2013).
---------------------------------------------------------------------------
Recently, former FBI bomb technician Donald John Sachtleben
pleaded guilty to providing national defense information to the
Associated Press about the disruption of a terrorist plot by
al-Qaeda in the Arabian Peninsula to bring down a civilian
airliner headed for the United States.\4\ He also disclosed
that during the investigation of the plot, authorities
uncovered a bomb that was being examined at an FBI lab in
Quantico where he sometimes worked. Officials described the
disclosure, which came in the middle of a sensitive
intelligence operation, as one of the most serious national
security leaks in history, and led to the Justice Department's
decision to subpoena phone records from the Associated Press.
According to the FBI, Sachtleben was identified by its
investigators as the source of this unlawful disclosure after
analysis of the subpoenaed telephone records.
---------------------------------------------------------------------------
\4\Sari Horwitz, Former FBI agent to plead guilty in leak to AP,
The Washington Post, Sept. 23, 2013.
---------------------------------------------------------------------------
The devastating consequences of such leaks were starkly
illustrated when the Libyan Prime Minister, Ali Zeidan, was
kidnapped in retaliation for allowing the United States to
carry out a special operations raid that captured senior al-
Qaeda leader, Nazih Abdul-Hamed al Ruqai, known as Abu Anas al-
Libi.\5\ The Libyan government had denied any prior knowledge
of the raid, but on October 9, 2013, the New York Times
reported that ``[a]fter months of lobbying by American
officials, the Libyans consented `some time ago' . . . to the
United States operations.''\6\ The article cites ``more than
half a dozen American diplomatic, military, law enforcement,
intelligence and other administration officials'' as sources.
---------------------------------------------------------------------------
\5\Marc A. Thiessen, Kidnapped Libyan prime minister pays the price
for an Obama leak, The Washington Post, Oct. 10, 2013.
\6\Michael S. Schmidt and Eric Schmitt, U.S. Officials Say Libya
Approved Commando Raids, The New York Times, Oct. 9, 2013.
---------------------------------------------------------------------------
This legislation is unnecessary
S. 987 was introduced three days after the Associated Press
wrote to Attorney General Holder to object to the above-
mentioned subpoena, which it described as a ``massive and
unprecedented intrusion'' by the Department of Justice
(``DOJ''). Facing mounting criticism from the press, the White
House called for this bill to be introduced. Just days later,
it was revealed that the Attorney General had approved a
warrant application that labeled Fox News' James Rosen an
``aider and abettor and/or co-conspirator'' under the Espionage
Act for soliciting from State Department security analyst
Stephen Jin-Woo Kim the disclosure of classified defense
information regarding North Korea's response to a U.N. Security
Council resolution condemning its nuclear and ballistic missile
tests. Some have argued that, given this sequence of events,
the administration's motives in calling for this legislation
were to divert criticism and placate powerful media interests.
Others have argued that the President's support for this bill
is a tacit admission that his DOJ is unable to police itself.
There is no question that the DOJ guidelines that set forth the
procedures for obtaining information from the media are
powerfully protective, and indeed, overly prescriptive in many
cases. In fact, in response to this criticism, the DOJ
tightened the guidelines even further. If they are faithfully
adhered to, while ensuring the necessary flexibility to conduct
timely and efficient investigations, they effectively ensure
that government does not unlawfully or unfairly intrude on the
press's right to legitimately report on issues of public
controversy.
Regardless, as S. 987's lead co-sponsors have conceded,
this bill likely would not have changed the outcome of the
Associated Press or Rosen matters. Indeed, rather than
promoting the purported ``free flow of information,'' so-called
``media shield'' legislation is, in the words of former
National Security Agency (``NSA'') and Central Intelligence
Agency (``CIA'') Director General Michael Hayden, ``merely a
solution in search of a problem.''\7\
---------------------------------------------------------------------------
\7\Michael Hayden, The free flow of secrets, The Washington Times,
Dec. 10, 2009 (``In my view, and indeed in the view of many in the
American intelligence community, this seems to be a solution in search
of a problem.''). See also Testimony of Deputy Attorney Gen. Paul J.
McNulty, Reporters' Privilege Legislation: Preserving Effective Federal
Law Enforcement, 109th Cong., 2nd Sess. (Sept. 20, 2006) (written
statement) (statement of Deputy Attorney Gen. Paul J. McNulty), at 9.
---------------------------------------------------------------------------
The lack of need for such legislation was initially raised
in the September 27, 2007 DOJ views letter regarding similar
predecessor legislation introduced in the 110th Congress, which
states ``the Department believes that this legislation would
work a dramatic shift in the law with no evidence that such a
change is warranted.''\8\ The letter points out that ``[s]ince
1991, the Department has approved the issuance of subpoenas to
reporters seeking confidential source information in only 19
cases. The authorizations granted for subpoenas of source
information have been linked closely to significant criminal
matters that directly affect the public's safety and
welfare.''\9\ The letter continues: ``[t]hese numbers
demonstrate a decrease in the number of cases in which the
Department has approved the issuance of subpoenas seeking
confidential source information in recent years: of the 19
source-related matters since 1991, only four have been approved
since 2001.''\10\
---------------------------------------------------------------------------
\8\Letter from Brian A. Benczkowski, Principal Deputy Assistant
Att'y Gen., U.S. Dep't of Justice, Office of Legislative Affairs, to
the Hon. Patrick Leahy, Chairman, U.S. Senate Comm. on the Judiciary,
U.S. Senate, at 4 (Sept. 26, 2007) (Appendix I).
\9\Id. at 3.
\10\Id. at 4 (emphasis in original).
---------------------------------------------------------------------------
In 2008, then-Attorney General Michael Mukasey and then-DNI
Michael McConnell submitted a views letter noting that similar
predecessor legislation was ``unnecessary because all evidence
indicates that the free flow of information has continued
unabated in the absence of a Federal reporter's
privilege.''\11\ The letter further states that the bill is
``unnecessary because, in the more than thirty-five years since
the Supreme Court held in Branzburg v. Hayes, 408 U.S. 665
(1972), that there is no First Amendment reporter's privilege
to avoid a grand jury subpoena issued in good faith, there has
been a dramatic increase in the flow of information available
to the public on every conceivable topic through an ever-
growing number of outlets.''\12\
---------------------------------------------------------------------------
\11\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, to the Hon.
Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch McConnell,
Minority Leader, U.S. Senate (Apr. 2, 2008), at 1 (Appendix II).
\12\Id. at 7.
---------------------------------------------------------------------------
Judge Mukasey and Mr. McConnell pointed out that supporters
of a journalist privilege make ``essentially the same arguments
the litigants in Branzburg made,'' suggesting that ``without a
reporter's privilege, journalists' sources will dry up,
important news will go unreported, and the country will suffer
as a result.'' Proponents of media shield legislation ``often
punctuate this cautionary tale about the necessity of a Federal
reporter's privilege by emphasizing the critical role played by
confidential sources in informing the public about a long line
of historic events--from Watergate and the Pentagon Papers to
Enron and Abu Ghraib.'' As Judge Mukasey and Mr. McConnell
emphasized, ``[t]here can be no doubt those confidential
sources came forward even though there was no Federal media
shield law in place to provide them with the protection that,
if this bill's supporters are to be believed, is essential to
ensuring that such stories continue to be reported.''\13\
---------------------------------------------------------------------------
\13\Id. (emphasis in original).
---------------------------------------------------------------------------
An examination of the facts reveals that subpoenas to
journalists are rare. As indicated above, the DOJ approved 19
source-related subpoenas from 1992 to 2006.\14\ According to
the DOJ, since 2006, it has approved only 12 source-related
subpoenas:
---------------------------------------------------------------------------
\14\Letter from Brian A. Benczkowski, Principal Deputy Assistant
Att'y Gen., U.S. Dep't of Justice, Office of Legislative Affairs, supra
note 8, at 3 (emphasis added); see also n.2 (``In only two of those
nineteen matters was the Government seeking to question a reporter
under oath to reveal the identity of a confidential source. In one of
the two matters, the media member was willing to identify his source in
response to the subpoena. In the other matter, the Department withdrew
the media subpoenas after it had obtained other evidence concerning the
source of the information and that source agreed to plead guilty. Of
the nineteen source-related matters since 1991, only four have been
approved since 2001. While the nineteen source-related matters
referenced above do not include any media subpoenas issued in matters
from which the Attorney General was recused, the only recusal matter in
which subpoenas were issued involved facts where all four federal
judges to review the subpoena--the Chief Judge of the District Court
and the three judge panel of the appeals court--found that the facts of
the case warranted enforcement of the subpoena under any version of a
qualified privilege, no matter how stringent. See In re Grand Jury
Subpoena, Judith Miller, 438 F.3d 1141, 1150 (D.C. Cir. 2006). In that
same case, it is important to note, the Special Prosecutor adhered to--
and was found by the Court to have complied with--the Department's
guidelines as set forth at 28 C.F.R. Sec. 50.10. See In re Special
Counsel Investigation, 332 F. Supp.2d 26, 32 (D.D.C. 2004) (``Assuming,
arguendo, that the DOJ Guidelines [for the issuance of subpoenas to the
news media] did vest a right in the movants in these cases, this court
holds that the DOJ guidelines are fully satisfied by the facts of this
case as presented to the court in the ex parte affidavit of Patrick
Fitzgerald.``)).
----------------------------------------------------------------------------------------------------------------
Number of Cases in Which Source- Related Subpoenas Were
Year Approved
----------------------------------------------------------------------------------------------------------------
2007................................................. 1
2008................................................. 4
2009................................................. 2
2010................................................. 3
2011................................................. 1
2012................................................. 0
2013................................................. 1
----------------------------------------------------------------------------------------------------------------
It should be noted that some supporters of media shield
confuse matters by lumping together the DOJ's statistics on
subpoenas seeking source-related information with subpoenas
that either did not seek confidential source information or
were issued by non-DOJ attorneys.\15\ If the supporters of such
legislation are concerned about an increase in subpoenas from
private litigants, they ought to make that argument--and they
ought to have data to back it up. But to use subpoenas from
non-DOJ attorneys as a justification for severely constraining
the ability of federal prosecutors to seek such subpoenas is a
non-sequitur, especially when there is simply no evidence that
the DOJ is approving such subpoenas in anything but a cautious
manner. For the purposes of a discussion of the present
legislation, the only relevant data are those data that concern
federal subpoenas and other compulsory process that seek
confidential source information--because, quite simply, that is
the only information for which the current legislation would
provide a shield.
---------------------------------------------------------------------------
\15\See, e.g., American Society of News Editors, Number of
subpoenas issued, Nov. 2, 2007, available at http://asne.org/
blog_home.asp?display=661 ``761 responding news organizations reported
receiving a total of 3,602 subpoenas seeking information or material
relating to newsgathering activities in calendar year 2006'') (last
visited Oct. 17, 2013). For example, a study conducted by Professor
RonNell Jones of Brigham Young University Law School simply does not
bear the weight that some media shield supporters claim. See RonNell A.
Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas
Received by the News Media, 93 Minn. L. Rev. 585 (2008), available at
http://ssrn.com/abstract=1125500. As an initial matter, the study
relies on self-reporting from newspapers and broadcast outlets, and, as
such, must assume the accuracy of those outlets' characterizations and
descriptions of the subpoenas they received. Id. at 622. And regardless
of how thorough and accurate the survey that the author of the study
conducted, the author still must rely on earlier data in order to
provide a point of comparison by which a determination can be made as
to whether the number of subpoenas is going up or down. The survey the
author uses as this point of comparison is a 2001 survey by the
Reporters' Committee on the Freedom of the Press, a survey that the
author herself readily admits ``did not purport to be scientific or
neutral.'' Id. at 621. And even assuming that the reported results are
accurate, it is important to note that the author of the study states:
``Overall, the data does not reveal an `avalanche' of subpoenas, and it
may well be that journalists in the country are alarmed about the
subpoena issue to a greater degree than is warranted by the actual
numerical increases.'' Id. at 667.
---------------------------------------------------------------------------
Previous concerns go unaddressed
Similar predecessor legislation was opposed by a host of
executive branch agencies in the 110th and 111th Congresses.
Although supporters of S. 987 may argue that, after a change at
the Presidential level, these agencies are no longer opposed--
which is not at all clear given that the Committee has yet to
hear from any of the heads of these agencies, other than
Attorney General Holder--what is relevant is that the reasons
for the agencies' past and well-founded opposition have not
been substantively addressed in the bill passed by the
Judiciary Committee.
As noted above, in the fall of 2007, the DOJ issued a
letter expressing strong opposition to similar predecessor
legislation ``because it would impose significant limitations
upon--and in some cases would completely eviscerate--the
ability of Federal prosecutors to investigate and prosecute
serious crimes, while creating significant national security
risks.''\16\
---------------------------------------------------------------------------
\16\See Letter from Brian A. Benczkowski, Principal Deputy
Assistant Att'y Gen., U.S. Dep't of Justice, Office of Legislative
Affairs, supra note 8, at 4.
---------------------------------------------------------------------------
The next day, the Office of the DNI also issued a letter
``strongly opposing'' media shield legislation.\17\ According
to the letter, ``press reports on U.S. intelligence activities
have been a valuable source of intelligence to our
adversaries.'' Amplifying this point, the DNI letter referred
to former Russian military intelligence colonel Stanislav
Lunev, who wrote, ``I was amazed--and Moscow was very
appreciative--at how many times I found very sensitive
information in American newspapers. In my view, Americans tend
to care more about scooping their competition than about
national security, which made my job easier.''\18\
---------------------------------------------------------------------------
\17\Letter from Ronald L. Burgess, Jr., Acting Principal Deputy
Dir. of Nat'l Intelligence, Office of the Dir. of Nat'l Intelligence,
to the Hon. John D. Rockefeller, Chairman, and the Hon. Christopher S.
Bond, Vice Chairman, Senate Select Comm. on Intelligence, U.S. Senate,
at 1 (Sep. 27, 2007) (Appendix III).
\18\Id. (quoting Stanislav Lunev with Ira Winkler, Through the Eyes
of the Enemy: The Autobiography of Stanislav Lunev (Regnery Publishing
1998)).
---------------------------------------------------------------------------
In April 2008, then-Attorney General Mukasey and then-DNI
McConnell issued the above-mentioned views letter reiterating
their strong opposition to similar predecessor legislation.\19\
In that letter, Judge Mukasey and Mr. McConnell stated that the
legislation is:
---------------------------------------------------------------------------
\19\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 11,
at 1.
both unwise and unnecessary: unwise because the
statutory privilege created by this legislation would
work a significant change in existing Federal law with
potentially dramatic consequences for our ability to
protect the national security and investigate other
crimes; and unnecessary because all evidence indicates
that the free flow of information has continued
unabated in the absence of a Federal reporter's
privilege.\20\
---------------------------------------------------------------------------
\20\Id.
Judge Mukasey and Mr. McConnell emphasized that the similar
bill ``goes far beyond its stated purpose and could severely
frustrate the Government's ability to investigate and prosecute
those who harm national security.''\21\ According to them, the
most significant deficiencies include:
---------------------------------------------------------------------------
\21\Id.
---------------------------------------------------------------------------
``The circumstances where the bill would permit
the Government to obtain testimony, documents, and other
information from journalists related to national security
investigations are far too restrictive. In the vast majority of
leak cases, for example, the extraordinary burden placed on the
Government could be met, if at all, only by revealing even more
sensitive and classified information.''\22\
---------------------------------------------------------------------------
\22\Id.
---------------------------------------------------------------------------
``[T]he purported [national security] exception
only applies prospectively to prevent acts of terrorism and
significant harm to national security. It does not apply to
investigations of acts of terrorism and significant harm to
national security that have already occurred.''\23\
---------------------------------------------------------------------------
\23\Id.
---------------------------------------------------------------------------
``The bill cedes to judges the authority to
determine what does and does not constitute `significant and
articulable harm to the national security.' It also gives
courts the authority to override the national security interest
where the court deems that interest insufficiently compelling--
even when harm to national security has been established.''\24\
---------------------------------------------------------------------------
\24\Id. at 2.
---------------------------------------------------------------------------
``One need not even be a professional journalist
in order to derive protections from this bill. It effectively
provides a safe haven for foreign spies and terrorists who
engage in some of the trappings of journalism but are not known
to be part of designated terrorist organizations or known to be
agents of a foreign power--no matter how closely linked they
may be to terrorist or other criminal activity.''\25\
---------------------------------------------------------------------------
\25\Id.
---------------------------------------------------------------------------
In an August 2008 letter, sent after the predecessor
legislation had been amended in a failed attempt to address
some of their concerns, Judge Mukasey and Mr. McConnell wrote:
[W]e still have several serious concerns, especially
with regard to the bill's effect on our ability to
protect national security and investigate and prosecute
the perpetrators of serious crimes.
* * *
[T]his bill only encourages and facilitates further
degradation of the tools used to protect the nation. We
have been joined by the Secretary of Defense, the
Secretary of Energy, the Secretary of Homeland
Security, the Secretary of the Treasury, and every
senior Intelligence Community leader in expressing the
belief, based on decades of experience, that, by
undermining the investigation and deterrence of
unauthorized leaks of national security information to
the media, this legislation will gravely damage our
ability to protect the Nation's security. This amended
version of the bill does not resolve those concerns, or
other serious concerns raised in our previous letters.
As a result, if this legislation were presented to the
President in its current form, his senior advisors
would recommend that he veto the bill.\26\
---------------------------------------------------------------------------
\26\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, to the Hon.
Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch McConnell,
Minority Leader, U.S. Senate (Aug. 22, 2008), at 1 (emphasis in
original) (Appendix IV).
As we explain below, none of these inadequacies set out by
Judge Mukasey and Mr. McConnell have been addressed in the
Committee-reported version of S. 987.
As noted in Judge Mukasey and Mr. McConnell's letter, on
January 23, 2008, 12 members of the intelligence community--six
of whom continue to serve or previously served in the Obama
administration--issued a joint letter expressing their ``strong
opposition'' to the similar predecessor legislation.\27\
Signatories to that letter included: (1) Mr. McConnell; (2)
General Hayden, then-CIA Director; (3) James R. Clapper, Jr.,
then-Under Secretary of Defense for Intelligence and current
DNI; (4) Robert Mueller, then--and until September 2013--
Director of the Federal Bureau of Investigation (``FBI''); (5)
Randall M. Fort, then-Assistant Secretary of State for
Intelligence and Research; (6) Janice Gardner, then-Assistant
Secretary for Intelligence and Analysis at the Department of
the Treasury; (7) Charlie Allen, then-Under Secretary for
Intelligence and Analysis at the Department of Homeland
Security; (8) Lieutenant General Keith Alexander, then-and-
current Director of the National Security Agency (``NSA''); (9)
Scott Large, then-Director of the National Reconnaissance
Office; (10) Lieutenant General Michael Maples, then-Director
of the Defense Intelligence Agency; (11) Vice Admiral Robert
Murrett, then-Director of the National Geospatial-Intelligence
Agency; and (12) Rolf Mowatt-Larssen, then-Director for
Intelligence and Counterintelligence at the Department of
Energy. They wrote that the legislation ``will undermine our
ability to protect intelligence sources and methods and could
seriously impede national security investigations'' and ``will
impair our ability to collect vital foreign intelligence,
including through critical relationships with foreign
governments which are grounded in confidence in our ability to
protect information from public disclosure.''
---------------------------------------------------------------------------
\27\Letter from J.M. McConnell, Dir. of Nat'l Intelligence et al.,
to the Hon. Harry Reid, Majority Leader, U.S. Senate, & the Hon. Mitch
McConnell, Minority Leader, U.S. Senate (Jan. 23, 2008), at 1 (Appendix
V).
---------------------------------------------------------------------------
On March 31, 2008, then-Defense Secretary Robert Gates
issued a views letter expressing the Department of Defense's
``strong opposition'' to the similar predecessor
legislation.\28\ In the letter, Secretary Gates stated that the
Defense Department is ``concerned that this bill will undermine
our ability to protect national security information and
intelligence sources and methods and could seriously impede
investigations of unauthorized disclosures.'' Secretary Gates
emphasized that ``[d]isclosures of classified information about
military operations directly threaten the lives of military
members and the success of current and future military
operations'' as well as ``the lives and safety of American
citizens and the welfare of the Nation.'' Secretary Gates
concluded that, by providing ``a broadly defined class of
`covered persons' with extraordinary legal protections against
having to reveal any confidential sources,'' the bill would
``have the unintended consequence of encouraging unauthorized
disclosures and increasing our nation's vulnerability to
adversaries' counterintelligence efforts to recruit `covered
persons.'''
---------------------------------------------------------------------------
\28\Letter from Robert Gates, Sec'y of Defense, U.S. Dep't of
Defense, to the Hon. Harry Reid, Majority Leader, U.S. Senate (Mar. 31,
2008), at 1 (Appendix VI).
---------------------------------------------------------------------------
On April 3, 2008, then-Homeland Security Secretary Michael
Chertoff issued a views letter on behalf of the Department of
Homeland Security expressing the Department's ``strong
opposition'' to the legislation.\29\ According to the letter,
the Department ``believes that [the bill] will make the United
States both less secure and less free by subverting the
enforcement of criminal laws and the Federal Government's
investigatory powers.'' As evidence, Mr. Chertoff, a former
federal prosecutor and federal appeals court judge, pointed out
that media shield legislation ``erects significant evidentiary
burdens to obtaining critical information from anyone who can
claim to be a journalist, including bloggers, and
communications service providers, such as internet service
providers.'' As a result of that significant evidentiary
burden, Mr. Chertoff stated that the bill would ``delay the
collection of critical information and ensure that criminals
have opportunities to avoid detection, continue their
potentially dangerous operations, and further obfuscate their
illegal activities.''
---------------------------------------------------------------------------
\29\Letter from Michael Chertoff, Sec'y of Homeland Security, U.S.
Dep't of Homeland Security, to the Hon. Joseph Lieberman, Chairman,
Comm. on Homeland Security and Governmental Affairs, U.S. Senate (Apr.
3, 2008) (Appendix VII).
---------------------------------------------------------------------------
Views letters of opposition to the similar predecessor
legislation were also submitted by then-Energy Secretary Samuel
Bodman\30\ and then-Treasury Secretary Henry Paulson.\31\
---------------------------------------------------------------------------
\30\Letter from Samuel W. Bodman, Sec'y of Energy, U.S. Dep't of
Energy, to the Hon. Carl Levin, Chairman, Senate Comm. on Armed
Services, U.S. Senate & the Hon. Jeff Bingaman, Chairman, Comm. on Nat.
Resources, U.S. Senate (Apr. 7, 2008) (Appendix VIII).
\31\Letter from Henry M. Paulson, Jr., Sec'y of the Treasury, U.S.
Dep't of the Treasury, to the Hon. Max Baucus, Chairman, Comm. on
Finance, U.S. Senate (Apr. 15, 2008) (Appendix IX).
---------------------------------------------------------------------------
S. 987 remains substantively the same to the aforementioned
legislation that was vigorously opposed by executive branch
agencies in the 110th and 111th Congresses. The short letter
submitted by Attorney General Holder to Chairman Leahy
regarding S. 987 is light on analysis and does not answer the
longstanding concerns raised by his predecessor and the
intelligence and law enforcement community.\32\ As set forth
below, these concerns remain unaddressed.
---------------------------------------------------------------------------
\32\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice, to
Hon. Patrick J. Leahy, Chairman, Comm. on the Judiciary, U.S. Senate
(July 29, 2013).
---------------------------------------------------------------------------
CORE OBJECTIONS TO S. 987
S. 987 places a substantial and unwarranted burden on the Government to
obtain information
S. 987 places an extremely heavy burden on a prosecutor or
litigator seeking information from a journalist by in effect
forcing the government to wage a mini-trial to meet its burden
under various tests. In order to do this, federal prosecutors
may have to reveal extremely sensitive information, including
information that could imperil national security.
Under the bill, in order to obtain confidential source
information, the government must generally prove that all
reasonable alternative sources have been exhausted, that the
testimony or document sought is ``essential'' to a prosecution,
and that nondisclosure 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.''\33\ If a court, correctly
or incorrectly, comes to the conclusion that the government
still has a potential avenue for further investigation other
than disclosure from the journalist, the government has no
choice but to undertake that avenue of investigation.
Similarly, if a court decides that the information sought is
not ``essential'' to the government's case, the government
cannot go forward. As former United States Attorney Patrick
Fitzgerald wrote in 2007 concerning similar predecessor
legislation, ``[i]n many cases, authorities would face the
Catch-22 of being required to prove specific criminal
activity--in a hearing before a judge, often resulting in
notice to the subjects of investigation or their associates--
before they could take the investigative steps to determine
whether criminal activity had occurred. In effect, the law
would require `trial before investigation.'''\34\
---------------------------------------------------------------------------
\33\S. 987, 113th Cong. Sec. 2 (as reported by S. Comm. on the
Judiciary, Sept. 12, 2013).
\34\Patrick J. Fitzgerald, Shield Law Perils . . . Bill Would Wreak
Havoc on a System That Isn't Broken, The Washington Post (Oct. 4,
2007).
---------------------------------------------------------------------------
S. 987 also generally limits the government to using public
information or information from a third party to establish the
factual predicate for overcoming the journalist's
privilege.\35\ As noted by Judge Mukasey and Mr. McConnell,
``[g]iven that in many cases publication by the [journalist] is
the only evidence for seeking source information, this
requirement is certain to cause serious practical difficulties
in criminal and civil matters.''\36\
---------------------------------------------------------------------------
\35\S. 987, supra note 33, at Sec. 2(a)(2).
\36\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26,
at 6.
---------------------------------------------------------------------------
Also, other than the circumstances enumerated in Sections 4
and 5, the bill makes no provision whatsoever for exigent
circumstances that would cause a reasonable person to believe
that prompt action was necessary. As the procedure for
overcoming the privilege is both burdensome and time-consuming,
it is not difficult to envision a scenario wherein the
assertion of the privilege could derail a critical, fast-moving
investigation. Suppose a journalist publishes a story about an
al-Qaeda sleeper cell currently in the United States. The
journalist's source is one of the terrorists. The government,
trying to learn more about the cell, subpoenas the journalist,
the journalist refuses to comply, and the government moves for
a disclosure order. No one would dispute that prompt action is
necessary in a case like this. However, because the government
cannot articulate a specific terrorist act that will be
prevented by taking action, a court could determine that the
Section 4 and 5 exceptions to the privilege do not apply, and
set a hearing to determine whether to order disclosure under
Section 2. Even if the government prevails in this scenario,
the journalist can appeal, which consumes even more time. All
the while, the cell continues to operate freely.
S. 987 will endanger classified information
In order for the government to meet the statute's burdens,
it will almost certainly have to disclose sensitive national
security information. Although S. 987 exempts certain types of
information from its coverage, these exceptions are extremely
narrow--in cases relating to alleged criminal or tortious
conduct by the journalist; prevention of death, kidnapping,
substantial bodily injury, a child sex crime, or destruction of
critical infrastructure; and prevention of future terrorist
activity or harm to national security.\37\
---------------------------------------------------------------------------
\37\Id. at Sec. Sec. 3-5.
---------------------------------------------------------------------------
In order to prove the existence of a valid exception for
national security in a classified leak case, the government
would likely have to contextualize that leak for the court. As
a result, Judge Mukasey and Mr. McConnell warned that ``the
Government will often be required to introduce still more
sensitive and classified information, potentially compounding
the harm of the initial leak.''\38\ This is unacceptable, and
largely the result of the bill's failure to explicitly set
forth guidelines to protect the sensitive national security
information with which it deals. As General Hayden wrote
regarding similar predecessor legislation, ``[t]his new
judicial process likely will require the disclosure of even
more classified information in order to meet the bill's
requirements. Even with such additional disclosure, there is no
assurance that a judge, now occupying this new and uncharted
role of national security decision-maker, would understand the
stakes involved.''\39\
---------------------------------------------------------------------------
\38\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 11,
at 3.
\39\Hayden, supra note 7.
---------------------------------------------------------------------------
Further, S. 987 severely hinders the government's ability
to identify the sources of leaked classified information and to
investigate past and potential future terrorist attacks.
Sources that hide behind journalists' promises of
confidentiality in order to perpetrate wrongdoings, such as the
leaking of classified information, will receive protection
under S. 987. Former Senator Charles Robb and Judge Laurence
Silberman, a former member of the Foreign Intelligence
Surveillance Court of Review, expressed concerns about the
negative impact of unauthorized disclosures of classified
information on national security in the report to the President
by the Commission on the Intelligence Capabilities of the
United States Regarding Weapons of Mass Destruction. According
to the Commission's report, ``[t]he scope of damage done to our
collection capabilities from media disclosures of classified
information is well documented. Hundreds of serious press leaks
have significantly impaired U.S. capabilities against our
hardest targets.''\40\
---------------------------------------------------------------------------
\40\The Commission on the Intelligence Capabilities of the United
States Regarding Weapons of Mass Destruction, Report to the President
of the United States, at 381 (Mar. 31, 2005).
---------------------------------------------------------------------------
No one would dispute that such disclosures pose a serious
threat to national security. However, this bill sets forth
special standards that place protecting a leaker's identity
ahead of the safety and security of the country. Such special
standards are highly inappropriate, as noted by former U.S.
Attorney Patrick Fitzgerald with respect to similar predecessor
legislation:
The proposed shield law poses real hazards to national
security and law enforcement. The bipartisan Sept. 11
commission and the Robb-Silberman commission on prewar
intelligence both found our national security at great
risk because of the widespread leaking of classified
information. The proposed law would have the unintended
but profound effect of handcuffing investigations of
such leaks.\41\
---------------------------------------------------------------------------
\41\Fitzgerald, supra note 34.
It is axiomatic that if Congress protects leakers of
classified and other sensitive information by passing S. 987,
what will result is more leaks of such information. For
example, in his 2008 views letter regarding similar predecessor
legislation, then-Secretary of Defense Robert Gates stated that
the Defense Department was concerned that a journalist's
privilege ``will undermine our ability to protect national
security information and intelligence sources and methods and
could seriously impede investigations of unauthorized
disclosures.''\42\ Secretary Gates rightly emphasized that
``[d]isclosures of classified information about military
operations directly threaten the lives of military members and
the success of current and future military operations'' as well
as ``the lives and safety of American citizens and the welfare
of the Nation.''\43\
---------------------------------------------------------------------------
\42\Letter from Robert Gates, Sec'y of Defense, U.S. Dep't of
Defense, supra note 28, at 1.
\43\Id. ``Past investigations into unauthorized disclosures through
the media have found that significant details were revealed to our
adversaries concerning a wide array of national security matters on
different occasions. Some examples include a Department of Defense
surveillance platform's capabilities; war plans that could have allowed
Saddam Hussein's forces to more effectively position defensive assets;
plans to insert Special Operations Forces into a battlefield; and the
capabilities of U.S. imaging satellites'').
---------------------------------------------------------------------------
Congress enacted the relevant criminal laws regarding the
leaking of classified information precisely to prevent leaks
from occurring. But instead of making it easier for
investigators and prosecutors to bring to justice those who
would imperil our national security, the Committee has endorsed
legislation that would do the exact opposite by explicitly
protecting leakers of classified information and increasing the
burden on those who seek to bring these leakers to justice. The
cumulative effect of this burden would cripple the government's
ability to identify and prosecute leakers of classified
information, and in the process would encourage more leaks that
threaten national security.
S. 987 protects an extraordinarily broad class of individuals
Given the strong and unprecedented protections that this
bill confers, it is essential to know exactly who will qualify
for those protections. Recognizing the inherent difficulty, if
not impossibility, of defining ``journalist'' consistent with
the First Amendment, the Committee adopted Senator Feinstein's
amendment, which attempted to narrow the definition of
``covered journalist'' to a person who
is, or on the relevant date, was, an employee,
independent contractor, or agent of an entity or
service that disseminates news or information by means
of newspaper; nonfiction book; wire service; news
agency; news website, mobile application or other news
or information service (whether distributed digitally
or otherwise); news program; magazine or other
periodical, whether in print, electronic, or other
format; or through television or radio broadcast,
multichannel video programming distributor . . . or
motion picture for public showing; 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, engages, or as of the
relevant date engaged, in the regular gathering,
preparation, collection, photographing, recording,
writing, editing, reporting or publishing on such
matters by conducting interviews; making direct
observations of events; or 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; had such intent at the
inception of the process of gathering the news or
information sought; and obtained the news or
information sought in order to disseminate the news or
information to the public.\44\
---------------------------------------------------------------------------
\44\S. 987, supra note 33, at Sec. 11(l)(A)(i)(I)(aa)-(dd).
This confusing and lengthy definition would nonetheless appear
to cover almost anyone, including criminals and other
individuals with countless opportunities to leak damaging
information without worrying about any sort of consequence.
Regardless, this definition inserts yet another factual
question into the investigative mini-trials that, under this
bill, will replace the use of ordinary and basic law
enforcement investigative techniques.
Perhaps most alarming, the protections could apply to media
or websites that are linked to terrorists and criminals. The
bill purports to exempt agents of foreign powers and designated
terrorist organizations from the definition of ``covered
journalist.''\45\ However, many terrorist media are neither
``designated'' terrorist organizations nor other non-covered
entities under the bill. It is indisputable that the bill would
protect ``professional journalists'' employed by the Al Jazeera
network or the Chinese Communist party's People's Daily or
``Russia Today,'' the Russian-based television network funded
and run by the Federal Agency on Press and Mass Communications
of the Russian Federation. Thus, all individuals and entities
who ``gather'' or ``publish'' information about ``matters of
public interest'' but who are not technically designated
terrorist organizations, foreign powers, or agents of a foreign
power will be entitled to S. 987's protections--no matter how
closely tied they may be to terrorists or other criminals. It
is not difficult to anticipate the scenarios under which the
robust protections of S. 987 would be easily abused by those
who wish to harm our safety and national security.\46\
---------------------------------------------------------------------------
\45\Id. at Sec. 11(l)(A)(iii).
\46\See, e.g., Gabriel Schoenfeld, Journalism or Espionage,
National Journal, Issue 17 (Fall 2013) (``The Foreign Press Association
of New York offers press credentials to anyone who pays its membership
fee, describing it `as the best $100 value in Town.' It is indeed a
highly attractive offer if it also comes complete with a fundamental
right to assume an alias, communicate with U.S. officials in code or
encrypted emails, and solicit secrets from them with impunity'').
---------------------------------------------------------------------------
S. 987 could be construed to protect other wrongdoers as
well. As noted in its letter in opposition to the bill, the
U.S. Chamber of Commerce stated that it is concerned
with a narrow set of sources who are bad-actors and use
the media to illegally disseminate confidential
information. When Congress considered a similar bill in
2005, the ombudsman for the San Francisco Chronicle
warned that there is ``danger of mischief on the part
of sources who know they can escape accountability.''
Evidentiary privileges should not protect individuals
who willfully use them to commit and cover up crimes.
S. 987 would not only protect these individuals, but by
doing so, would embolden their illegal activities.
S. 987 would protect people who violate laws that
safeguard the confidential information of private
individuals, businesses, and other entities. This
confidential information includes federally protected
trade secrets, personal health information, customer or
employee data, and information sealed under judicial
protective orders, among others. In these
circumstances, the public policy decision has been made
that this information should not be subject to public
disclosure. When protected information is leaked, there
is no way to limit the damage of the disclosure. Yet,
S. 987 would protect those who violate these laws.
* * *
S. 987 would also unintentionally undermine other
aspects of the First Amendment. Under the bill,
information like a group's member or donor list would
potentially be unprotected if the information were
stolen and leaked to a reporter. This is exacerbated
when the definition of reporter is extended to non-
traditional news sources that often have a politically
motivated agenda. The disclosure of this information
would violate the rights of individuals to freely
associate and could be used to target and silence those
who support disfavored causes. As a result, this bill,
which is aimed at protected First Amendment speech,
would ultimately undermine those principles by
facilitating retaliation against certain speakers.\47\
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\47\Letter from R. Bruce Josten, Executive Vice President of
Government Affairs, U.S. Chamber of Commerce, to the Hon. Patrick
Leahy, Chairman, and the Hon. Chuck Grassley, Ranking Member, Comm. on
the Judiciary, U.S. Senate (July 29, 2013) (Appendix X).
S. 987 also protects a broad array of individuals in the
media, including the journalist's employer and parent
company.\48\ There is no need for this broad protection, as
standard media sourcing rules generally dictate that a source's
identity should only be disclosed by a journalist to his or her
immediate supervisor.\49\
---------------------------------------------------------------------------
\48\S. 987, supra note 33, at Sec. 11(l)(A)(ii).
\49\See Reuters, Handbook of Journalism, available at http://
handbook.reuters.com/index.php?title=The_Essentials_
of_Reuters_sourcing (last visited Sept. 25, 2013) (noting that
``[r]eporters are expected to disclose their sources, when asked, to
their immediate supervisor, whether bureau chief or reporting unit
head," and that "the supervisor should not disclose the name of the
source [to others] but may discuss the nature, position, access and
track record of the source'').
---------------------------------------------------------------------------
SECTION-BY-SECTION DISCUSSION OF CONCERNS
Section 2: Compelled disclosure from covered journalists
Subsection (a) of Section 2 lists the conditions for
compelled disclosure of protected information. In any federal
proceeding or in connection with any issue arising under
federal law, a federal entity may not generally compel
disclosure of testimony or documents when they relate to
protected information possessed by a ``covered
journalist.''\50\ However, a court may compel disclosure if it
determines that the party seeking to compel production has
``exhausted all reasonable alternative sources'' of the
testimony or documents (other than the covered journalist) and,
in criminal cases, that:
---------------------------------------------------------------------------
\50\S. 987, supra note 33, at Sec. 2(a).
---------------------------------------------------------------------------
Based on public information or information
obtained from a source other than the covered
journalist, there are ``reasonable grounds to believe a
crime has occurred;''
Based on public information or information
obtained from a source other than the covered
journalist, there are reasonable grounds to believe
that the testimony or documents sought are ``essential
to the investigation or prosecution or to the defense
against the prosecution;''
The Attorney General certifies that the
decision to request compelled disclosure was consistent
with 28 C.F.R. Sec. 50.10 (in circumstances governed by
that rule); and
The covered journalist 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.''\51\
---------------------------------------------------------------------------
\51\Id.
The bill also requires the subpoena or court order to be
``narrowly tailored in purpose, subject matter, and period of
time covered so as to avoid compelling disclosure or
peripheral, nonessential, or speculative information.''\52\
---------------------------------------------------------------------------
\52\Id. at Sec. 2(b).
---------------------------------------------------------------------------
As discussed previously, Section 2 sets an extremely high
bar for a prosecutor or litigator to obtain critical
information from a journalist by in effect forcing the
government to wage a mini-trial to meet its burden under
various tests. In order to do this, federal prosecutors may
have to reveal extremely sensitive information, including
information that could imperil national security. Specifically,
the government must prove that the information it seeks is both
``essential'' to the case and that it has exhausted all
reasonable alternatives.\53\ These requirements, which are not
defined in the bill, put a federal judge in the position of
micromanaging a criminal investigation, even those in the early
stages when subpoenas are most commonly used to ascertain
whether a (or which) federal crime has even been committed. If
a court, correctly or incorrectly, concludes that the
government has another potential avenue for further
investigation besides disclosure from the journalist, the
government has no choice but to undertake that avenue of
investigation, regardless of the time, expense, and potential
for compromise involved. Similarly, if a judge decides that the
information sought is not essential to the government's case,
the government cannot go forward. Moreover, Section 2 not only
erects new barriers against law enforcement, but it also
requires the Attorney General to certify that Justice
Department policy procedures limiting subpoenas on the press
were followed.\54\ Notably, apart from generally summarizing
Section 2's strictures, Attorney General Holder's letter does
not even mention the operational impact of these two
requirements.\55\
---------------------------------------------------------------------------
\53\Id. at Sec. 2(a)(1).
\54\Id. at Sec. 2(a)(2)(iii).
\55\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice,
supra note 32.
---------------------------------------------------------------------------
Fundamentally, Section 2 charges federal judges--who
generally lack the training and expertise necessary to weigh
the sort of national security considerations often at play--
with making the ultimate decisions concerning which
investigations are sensitive enough to get access to a
journalist's information.\56\ A federal judge is tasked with
balancing the public interest in the evidence being gathered
with the ``public interest in gathering and disseminating the
information or news at issue and maintaining the free flow of
information.''\57\ Notably, these terms are nowhere defined in
the bill.
---------------------------------------------------------------------------
\56\See, e.g., Testimony of Deputy Att'y Gen. Paul J. McNulty,
supra note 7 (``It shifts law enforcement decisions from the executive
branch to the judiciary. This shift is extraordinarily serious in the
national security area where the executive officials have access to the
full array of information necessary to make informed and balanced
national security judgments. . . . As numerous judges have recognized,
the courts lack the institutional resources and expertise to make those
decisions.'') (emphasis added).
\57\S. 987, supra note 33, at Sec. 2(a)(2)(A)(iv).
---------------------------------------------------------------------------
Judge Mukasey and Mr. McConnell expressed significant
concern with respect to nearly identical language in
predecessor legislation: ``These amorphous factors will defy
consistent or coherent balancing. Indeed, we would submit that
the open-ended nature of the bill's balancing tests virtually
guarantees that there will be as many different interpretations
of its terms as there are Federal judges--with serious
consequences not just for law enforcement but for journalists
and the public at large.''\58\ They also emphasized that the
``balancing test for a judge in a leak case would rest on the
relative import he or she placed on the substance of the
published leak, and whether its disclosure, though unlawful,
outweighed a demonstrated harm to national security. . . . This
. . . would effectively give judges authority to immunize
leakers as a perverse reward for divulging classified
information that is, in the judge's personal estimation,
sufficiently enlightening.''\59\
---------------------------------------------------------------------------
\58\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 11,
at 5.
\59\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26,
at 4.
---------------------------------------------------------------------------
We agree with Judge Mukasey and Mr. McConnell that media
shield legislation unwisely ``transfers key national security
and prosecutorial decision-making authority--including
decisions about what does and does not constitute harm to the
national security--from the executive branch to the judiciary,
and it gives judges virtually limitless discretion to make such
determinations by imposing standardless and highly subjective
balancing tests that could be used to override national
security interests.''\60\
---------------------------------------------------------------------------
\60\Id. at 2.
---------------------------------------------------------------------------
We also agree with their sentiment that the ``Rule of
Construction,'' ``which purports to limit any construction of
the Act that would affect the Foreign Intelligence Surveillance
Act or the Federal laws or rules relating to grand jury
secrecy--is insufficient to preserve the range of authorities
on which the Government relies to conduct national security
investigations.''\61\
---------------------------------------------------------------------------
\61\Id.
---------------------------------------------------------------------------
Section 3: Exception relating to criminal conduct
Section 3 provides that the general journalists' privilege
in Section 2 does not apply to protected information obtained
as the result of the journalist's eyewitness observations of
alleged criminal conduct, or any alleged criminal conduct
committed by a journalist.\62\ However, pursuant to Section
3(b), this exception does not apply ``if the alleged criminal
conduct is the act of communicating the documents or
information at issue.''\63\
---------------------------------------------------------------------------
\62\S. 987, supra note 33, at Sec. 3(a).
\63\Id. at Sec. 3(b).
---------------------------------------------------------------------------
Although this section purports to remove some information
from the scope of the journalists' privilege, it actually
protects information if the crime under investigation is a leak
of classified or grand jury information to a journalist. As a
result, S. 987 will encourage leakers of classified or grand
jury information to get away with clear violations of federal
law, so long as the recipient of the information promises to
keep the leaker's identity a secret.
The language in Section 3(b) is remarkable, as we have been
unable to find another example in federal criminal law where
Congress has specified that an individual can seek the
protection of a court privilege even if that person has
committed a crime in the process.\64\ Presumably, then, S. 987
would be the first such court privilege that protects
lawbreakers. An individual who leaks classified or grand jury
information commits a grievous crime and does not deserve the
protection afforded by a journalist's successful assertion of
privilege. If leakers of classified or grand jury information
are protected under S. 987, we believe that more leaks will
result and it will be harder to prosecute them.
---------------------------------------------------------------------------
\64\See Seth Leibsohn & Andrew C. McCarthy, Press That Shield Back,
National Review, Oct. 18, 2007 (``With this privilege, the media,
unlike the rest of us, can now skirt a core obligation of citizenship:
the duty to provide testimony when they witness crimes. Indeed, even if
they aid and abet certain crimes, our lawmakers would provide them
cover.'').
---------------------------------------------------------------------------
Grand jury secrecy is one of the cornerstones of our
federal justice system. As the Supreme Court observed in
Pittsburgh Plate Glass Co. v. United States,\65\ the secrecy of
grand jury proceedings: (1) prevents the accused from escaping
before he is indicted or arrested or from tampering with
witnesses; (2) prevents disclosure of derogatory information
presented to the grand jury against an accused who has not been
indicted; (3) encourages complainants and witnesses to come
before the grand jury and speak freely without fear of
reprisal; and (4) encourages the grand jurors to engage in
uninhibited investigation and deliberation by barring
disclosure of their votes and comments during the proceedings.
---------------------------------------------------------------------------
\65\360 U.S. 395, 405 (1959).
---------------------------------------------------------------------------
S. 987 protects journalists from having to disclose
information to the government, even if the crime under
investigation is the leak of grand jury information to a
journalist. Specifically, Section 3 states that a journalist
engaged in criminal conduct cannot take advantage of the
privilege in this bill. However, subsection (b) provides:
``This section shall not apply, and, subject to section 4 and
5, section 2 shall apply, if the alleged criminal conduct is
the act of communicating the documents or information at
issue.''\66\ Therefore, it would appear that Section 3(b) is
intended to provide a privilege whenever the transmission of
the information is a crime.
---------------------------------------------------------------------------
\66\S. 987, supra note 33, at Sec. 5.
---------------------------------------------------------------------------
Many grand jury leaks to journalists are made with the goal
of exposing an ongoing investigation, often with the intention
of derailing it, or simply because the leaker craves attention.
Reputations of many innocent Americans have been ruined by
leaks of sensitive information that later turned out to be
untrue, such as Richard Jewell, who was falsely alleged to be
the Olympic Park bomber, and Steven Hatfill, who was falsely
alleged to have committed the 2001 anthrax attacks.
Even the bill's lead sponsor has acknowledged the harm that
can be caused by grand jury leaks. During the Committee's last
hearing on this topic in 2006, Senator Schumer said: ``When a
person leaks secret grand jury information, that is against the
law. Society has made a determination: You leak grand jury
information, that is against the law. There is no
countervailing issue here because we have made that--and it is
routinely done by prosecutors to aid their cases. We have all
seen it.'' He further stated: ``Leaking the identity of a
covert CIA agent is against the law. There is no justification
for a reporter holding information. In cases like these, the
harm done by the leak and the need to punish the leaker often
far outweighs the need to keep a source confidential.'' We
agree.
Since most grand jury leaks are made to journalists, this
bill will effectively override Rule 6(e)(2) of the Federal
Rules of Criminal Procedure, which states that matters
occurring before a federal grand jury must be kept secret. The
majority argues that that the rule of construction in Section 9
that ``Nothing in this Act may be construed to . . . modify the
requirements of . . . Federal laws or rules relating to grand
jury secrecy,'' protects grand jury secrecy. However, what
Section 9 gives with one hand, it takes away with the other,
stating: ``Except that this Act shall apply in any proceeding
and in connection with any issue arising under . . . the
Federal laws or rules relating to grand jury secrecy.''
In other words, as Judge Mukasey and Mr. McConnell noted
regarding identical language, this ``does nothing to restrict
the application of the bill from sheltering violations of
longstanding and important protections for grand jury
deliberations. In other words, this privilege can and will be
used to protect leakers of grand jury information.''\67\
---------------------------------------------------------------------------
\67\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26, at
5.
---------------------------------------------------------------------------
The Committee rejected an amendment by Senator Sessions to
exclude federal grand jury information from the privilege by a
vote of 7 to 11. The majority argued that the amendment would
apply in cases of leaks made in an attempt to expose grand jury
corruption and therefore would protect prosecutorial misconduct
or grand jury bribery. However, instead of leaking sensitive
grand jury information to a reporter, a source has several
alternatives to ensure integrity of a trial--a judge, the
Department of Justice, defense attorneys.
Notably, Attorney General Holder's letter contains not one
mention of this ``act of communicating the documents or
information'' language, which explicitly creates a court
privilege for those committing federal crimes.\68\
---------------------------------------------------------------------------
\68\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice,
supra note 32.
---------------------------------------------------------------------------
Section 4: Exception to prevent death, kidnapping, substantial bodily
injury, sex offenses against minors, or incapacitation or
destruction of critical infrastructure
Section 4 states that the general privilege in Section 2
does not apply to any protected information that is reasonably
necessary to stop, prevent, or mitigate a specific case of
death, kidnapping, substantial bodily harm, child sex crime, or
incapacitation or destruction of critical infrastructure.\69\
This exception is entirely prospective, as it would protect
sources in instances where law enforcement was investigating or
solving violent acts or incapacitation or destruction of
critical infrastructure that had already occurred.
---------------------------------------------------------------------------
\69\S. 987, supra note 33, at Sec. 4.
---------------------------------------------------------------------------
This limitation makes Section 4's so-called exception
largely worthless, as most of the investigations that will be
implicated by this privilege will naturally concern incidents
that have already occurred. As much as we would like to hope
that government officials will be able to stop crimes from
occurring in the first place, the reality is that most law
enforcement work deals with bringing wrongdoers to justice
after they have committed a crime, not before. Because of this
reality, the exceptions in this bill will apply only to a small
subset of cases--those where the attack or crime has not yet
occurred. Here is but one real-life example from the Justice
Department that illustrates the folly of this approach:
In 2004, the notorious ``BTK Strangler'' emerged from
years of silence to begin corresponding with media
representatives and law enforcement entities in
Wichita, Kansas. The killer calling himself ``BTK'' had
terrorized Wichita with a string of violent homicides,
but 13 years had elapsed since his last murder. In
repeated correspondence, ``BTK'' described previously
nonpublic details of the past murders and provided
corroborating evidence such as photographs taken during
the crimes. Yet authorities were not able to identify a
suspect. ``BTK'' then sent a computer disk to a
television station. The television station turned over
the disk to police, and forensic experts were able to
extract hidden information from the disk that tied it
to a particular computer and user. This enabled law
enforcement officers to arrest Dennis Rader, who
eventually pled guilty to 10 murders.
If the television station had refused to disclose the
computer disk, and [media shield legislation] had
applied in the case, Rader might never have been
apprehended and the families of the murder victims
would still be awaiting justice. Because all of the
information related to long-past killings, law
enforcement would not be able to demonstrate that
disclosure was necessary to prevent imminent death.
Even if it is assumed that a responsible media outlet
would voluntarily turn over information related to a
serial killer, we cannot expect that criminals will
always provide information to responsible media, or
that a ``mainstream'' publication will always turn over
information related to a less sensational crime.\70\
\70\Letter from Brian A. Benczkowski, Principal Deputy Assistant
Att'y Gen., U.S. Dep't of Justice, to Rep. Lamar Smith, Ranking
Member., Comm. on the Judiciary, U.S. House (July 31, 2007) (emphasis
in original) (Appendix XI).
Excluding the investigation or solving of violent crimes
from Section 4 is a serious oversight.
Section 5: Exception to prevent terrorist activity or harm to the
national security
Section 5 creates two classes of exceptions to Section 2's
general privilege. In a criminal investigation or prosecution
of the disclosure of ``properly classified'' information,
Section 2 will not apply if a court finds by a preponderance of
the evidence that the protected information sought would
``materially assist'' the federal government in ``preventing or
mitigating'' an act of terrorism or ``other acts that have
caused or are reasonably likely to cause significant and
articulable harm to national security.''\71\ In any other
criminal investigation or prosecution for the leak of
classified or otherwise privileged information, Section 2 will
not apply if a court finds by a preponderance of the evidence
that the information sought would ``materially assist'' the
federal government in ``preventing or mitigating,'' or
``identifying the perpetrator'' of an act of terrorism or
``other acts that have caused or are reasonably likely to cause
significant and articulable harm to national security.''\72\ In
making this determination, a court is instructed to give
``appropriate deference'' to a specific factual showing by the
head of any executive branch agency or department
concerned.\73\
---------------------------------------------------------------------------
\71\S. 987, supra note 33, at Sec. 5(a)(2)(A).
\72\Id. at Sec. 5(a)(2)(B).
\73\Id. at Sec. 5(b).
---------------------------------------------------------------------------
Section 5 also states that any other investigation or
prosecution having to do with the disclosure of classified
information is covered by Section 2's general privilege unless
it prevents or mitigates a terrorist act or harm to national
security. Additionally, Section 5 provides that the potential
for additional unlawful disclosure of the protected information
by the source, shall not, without an additional factual
showing, be sufficient to establish that disclosure of the
information would materially assist the federal government in
``preventing or mitigating'' an act of terrorism.
Although Section 5 provides a limited exception to the
journalist privilege for acts of terrorism or ``significant and
articulable'' harm to the national security, this exception is
far too narrow. On its face, the classified information
exception extends only to potential or future harms to national
security--harms that still can be ``prevented'' or
``mitigated.'' As noted by Judge Mukasey and Mr. McConnell with
respect to similar predecessor legislation, this exception
``expressly would not apply in cases where the Government is
investigating serious harms (other than leaks of classified
information) that have already occurred, including acts of
sabotage and outright attacks on the United States. In such
cases, the Government could seek to compel disclosure only as
authorized under the more onerous provisions of Section
2.''\74\
---------------------------------------------------------------------------
\74\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26,
at 3.
---------------------------------------------------------------------------
Even in other cases involving national security, the
exception only permits investigation into past events to
``identif[y] the perpetrator.'' It would not apply to
investigations of attacks that have already occurred once the
perpetrator has been identified. Investigation into the
perpetrator's terrorist ties and finances, or to cull together
evidence for a future criminal prosecution, would not be
covered by the exception. Thus, for instance, Section 5 would
not cover investigation into the Fort Hood shooting or the
attempted bombing of Northwest Flight 253 on Christmas Day 2009
or the attempted attack on Times Square in 2010, as the
perpetrators of these terrorist acts have already been
identified.
The inclusion of a materiality requirement and a
``significant and articulable harm to national security''
standard in Section 5 is also cause for concern. Essentially,
the government must show, by a preponderance of the evidence,
both that the information sought will be sufficiently
significant to influence the outcome of the investigation and
that the harm under investigation is itself significant. It is
not coincidence that the standard for most investigative
authorities--such as a subpoena--is relevance, with only the
most intrusive requiring a heightened probable cause standard.
This reasoned approach recognizes that in the early stages of
an investigation, a higher standard is often incompatible with
the facts that can or should be expected to be known about a
specific offense when it first comes to light. But S. 987 turns
this long-standing and well-tested investigative pyramid on its
head by requiring the higher standard of preponderance of the
evidence for the use of basic methods that, in turn, are
supposed to provide the foundation for an investigation. The
significance and scope of a national security threat is often
not apparent at the early stages of an investigation and could
be impossible to prove. S. 987 would require investigators and
prosecutors to conduct a mini-trial to prove the nature of a
threat, well before the full picture has become clear.
Investigators are supposed to gather information to assess
threats, not prove threats in court to get access to
information about the same threat. As Judge Mukasey and Mr.
McConnell noted with respect to a similar provision in similar
predecessor legislation, this provision ``transfers to the
courts such core determinations as when investigative subpoenas
are necessary and what constitutes harm to the national
security. Not only is this shift made, but in many cases, the
Government will need to make its showing at an early state of
investigation. This is precisely backwards.''\75\
---------------------------------------------------------------------------
\75\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 11,
at 5.
---------------------------------------------------------------------------
Further, the ``appropriate deference'' that courts must
show to executive branch agencies is an extremely vague
standard and is likely to be interpreted in different ways by
different courts. In the fall of 2009, in the USA PATRIOT Act
reauthorization context, this Committee voted to reject a
similar standard--including the same use of the word
``appropriate''--in the context of the nondisclosure of
national security letters.\76\ S. 987 brings back this
meaningless ``appropriate deference'' language, which the
Committee rejected during that debate in favor of a more
meaningful ``substantial weight'' standard.\77\
\76\S. 1692, 111th Cong. (as reported by S. Comm. on the Judiciary,
Oct. 13, 2009).
\77\Executive Business Meeting, S. Comm. on the Judiciary, 111th
Cong. (Oct. 1, 2009).
---------------------------------------------------------------------------
In addition, Section 5 requires the government to show in
most cases involving leaked classified information that the
information was ``properly classified'' and that the leak was
``reasonably likely to cause significant and articulable harm
to national security.''\78\ As Judge Mukasey and Mr. McConnell
noted with respect to the use of this phrase in similar
predecessor legislation, this ``raises the troubling prospect
of every leak investigation becoming a mini-trial over the
propriety of the Government's classification decision.''\79\ It
will ``invite litigants and courts to second-guess the
classification decision [by intelligence and law enforcement
officials] without the benefit of either experience or
expertise in--to say nothing of legal responsibility for--
matters of national security.''\80\ During the Committee's last
hearing on this topic in 2006, then-Deputy Attorney General
Paul McNulty testified regarding the problem with giving judges
the authority to determine what is ``properly classified'':
\78\ S. 987, supra note 33 at Sec. 5(a)(2)(A) (2013).
\79\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 5, at
3.
\80\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice, & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 22,
at 3.
---------------------------------------------------------------------------
I think a significant problem . . . [is] the court
also has to make a decision that this information has
been properly classified. And that in itself is a big
undertaking because it then puts the judge in the
position of making--or exercising the kind of judgment
that experts in the field have to exercise, which is to
know that if this information were to get into the
hands of the enemy or do harm to the United States and
other aspects of classification.\81\
---------------------------------------------------------------------------
\81\Testimony of Deputy Attorney Gen. Paul J. McNulty, supra note
7, at 8.
As one commentator has noted, ``[t]he main effect of a shield
law would thus be to the [sic] draw the judicial branch into
the very heart of foreign-policy decisionmaking, requiring
judges to evaluate matters that they lack either the expertise
or the experience to assess. As a result, the confusion that
now exists among the various federal circuit courts would not
be cleared up; it would be deepened.''\82\
---------------------------------------------------------------------------
\82\Gabriel Schoenfeld, Why Journalists Are Not Above the Law,
Commentary Magazine, February 2007.
---------------------------------------------------------------------------
Moreover, as noted by Judge Mukasey and Mr. McConnell,
such second-guessing would involve the application of a
novel standard that does not even track the standards
that are used in national security classifications.
Specifically, to persuade a judge to compel disclosure
. . . the Government will have to show that the leak
caused or will cause ``significant and articulable
harm'' to the national security. This standard has no
analogue in the intelligence community. Pursuant to
Executive Order 12958, as amended, the Government
classifies information at three basic levels:
``Confidential,'' ``Secret,'' and ``Top Secret.'' By
definition, those terms apply, respectively, to
information the unauthorized disclosure of which
reasonably could be expected to cause ``damage''
(Confidential), ``serious damage'' (Secret), and
``exceptionally grave damage'' (Top Secret) to national
security. Thus, a leak of properly classified
[information] by definition constitutes harm to the
national security. Particularly with respect to
``Confidential'' information, however, the harm is
arguably less severe than the Government would be
required to demonstrate under Section 5. The bill could
thus expose large amounts of properly classified
information to unauthorized disclosure while
effectively blocking any investigation or prosecution
of those who leak such information.
This is not only a major oversight, but also could
effectively render null and void the existing classification
system without establishing any safeguards in its place.
Finally, it is disconcerting that the fact that the source
is likely to leak classified or other sensitive information
again is not enough to remove a case from Section 2's general
privilege. This means that information that the government
cannot tie to a future act of terrorism, or harm to national
security, would be covered under the privilege both in the
present and in the future. The Committee rejected an amendment
by Senator Sessions by a vote of 6 to 11 with Senator Feinstein
voting ``present,''\83\ to exempt from S. 987 any cases
concerning classified information. It also rejected by a vote
of 7 to 11 an amendment by Senator Cornyn to exempt from S. 987
material support of terrorism cases.
---------------------------------------------------------------------------
\83\In explaining her vote, Senator Feinstein stated:
``[C]lassified information may seem harmless to one person where it may
unveil the possibility of a source, the identification of a source, or
a method, and if it is classified, it is classified, and there is a
prison sentence of up to 10 years. The problem is it is hard to
investigate and convict this. So I do not want to make that more
difficult. . . . I want to talk to Director [of National Intelligence]
Clapper about his recommendation. . . . But there is every reason to
believe every one of us really ought to be concerned about leaks.''
Executive Business Meeting, S. Comm. on the Judiciary, 113th Cong.
(Sept. 12, 2013), available at: http://www.judiciary.senate.gov/
hearings/hearing.cfm?id=6225bf1b82 d2592b6b470bc0d4b52acb (last visited
Sept. 30, 2013).
---------------------------------------------------------------------------
Section 6: Compelled disclosure from communications service providers
Section 6 applies the protections from Sections 2 through 5
to records and other information related to a business
transaction between a communications service provider and a
journalist.\84\ A court seeking disclosure must provide the
journalist who is a party to the business transaction notice of
the request and subpoena as well as an opportunity to be
heard.\85\ The notice provision may be delayed for not more
than 45 days only if the court determines by clear and
convincing evidence that notice would pose a ``clear and
substantial threat to the integrity of a criminal
investigation, would risk grave harm to national security, or
would present an imminent risk of death or serious bodily
injury.''\86\ The delayed notification period is limited to one
45-day period and one renewal of the initial 45-day period, if
the judge makes a new determination by clear and convincing
evidence.\87\ This section provides that a ``clear and
substantial threat to the integrity of a criminal
investigation'' exists if a judge finds by clear and convincing
evidence that the target may learn of the investigation and
destroy evidence if notice is provided.\88\
---------------------------------------------------------------------------
\84\S. 987, supra note 33, at Sec. 6(a).
\85\Id. at Sec. 6(b).
\86\Id. at Sec. 6(c)(1).
\87\Id. at Sec. 6(c)(2).
\88\Id. at Sec. 6(c)(3).
---------------------------------------------------------------------------
Section 6 also extends the protections of this bill to 18
U.S.C. Sec. 2709, which authorizes the issuance of national
security letters (``NSL'') for subscriber information, toll
billing records information, and electronic communication
transactional records. The provisions of Sections 2 through 5
apply to NSL requests for information under Sec. 2709, except
that in criminal investigations, the court will have to
determine that there are reasonable grounds to believe that a
crime has occurred or that the DOJ complied with its
regulations in Section 50.10 of title 28, Code of Federal
Regulations (``Policy on Issuing Subpoenas to Members of the
News Media''), which include the requirement that the
government exhausted all reasonable alternative sources.
However, the court would still have to determine that: (1)
there are reasonable grounds to believe that the information
sought is essential to the investigation; and (2) the
journalist failed to establish by clear and convincing evidence
that the disclosure of information identifying his or her
source or the information obtained from that source would be
contrary to the public interest.\89\
---------------------------------------------------------------------------
\89\Id. at Sec. 6(a)(2).
---------------------------------------------------------------------------
Unless a journalist is given notice and an opportunity to
be heard, this section prohibits a judge from compelling: (1) a
covered service provider to comply with an NSL or other legal
process related to a journalist's account with such service
provider, or (2) a journalist to testify or disclose a
document. Although subsection (c) allows the government to
delay this hearing for up to two 45-day periods, the covered
service provider cannot provide the requested documents until
it receives a court order or the consent of the journalist.
Section 6 again will force the government to wage a mini-
trial to meet its burden, not only to overcome the general
privilege set forth in Section 2, but even to delay notice by
proving by clear and convincing evidence that notice ``would
pose a clear and substantial threat to the integrity of a
criminal investigation, would risk grave harm to national
security, or would present an imminent risk of death or serious
bodily injury.''\90\
---------------------------------------------------------------------------
\90\Id. at Sec. 6(c)(1).
---------------------------------------------------------------------------
Under current law, notice of a subpoena in general may be
delayed for indefinitely renewable 90-day periods. It is
unclear why delay in this context should be limited to only one
45-day renewal period. This limitation presents a significant
administrative burden on the government, as the information
obtained in the first 45 days of an investigation may not
produce sufficient evidence to show a ``clear and substantial
threat'' to the integrity of the investigation exists. This
could result in federal investigators delaying subpoenaing
records in time-sensitive investigations to prevent the target
from finding out about the investigation. Additionally,
investigations into terrorist recruiting and financing can take
years to unravel. Such cases likely involve subpoenaing bank
and telephone records. If the government can only delay such
notification to covered journalists for a maximum of 90 days,
it could easily end or expose the entire investigation. For
instance, in May of this year, two Somali men, Omar Mohamed and
Kamal Hassan, were convicted of recruiting individuals in
Minnesota for the designated terrorist organization al-Shabab.
The FBI's investigation lasted four years, which resulted in 18
individuals being charged with material support to al-Shabab.
One has to wonder whether the same outcome would have been
reached had this bill been law. Moreover, if this bill were to
become law, it is not hard to imagine a new effort to require
unyielding notification of all subpoenas, regardless of the
recipient or type of investigation.
Finally, the definition of ``clear and substantial threat
to the integrity of a criminal investigation'' leaves out
several categorical situations that are found under current
subpoena authority under Title 18 of the United States Code,
including flight, tampering with evidence and intimidation of a
potential witness. Limiting the delayed notification to only
cases of ``destruction of evidence'' could seriously hamper law
enforcement's ability to delay notification, even when the
facts of a particular investigation demand it.
Section 7: Sources and work product produced without promise or
agreement of confidentiality
Section 7 states that nothing in S. 987 ``shall supersede,
dilute, or preclude any law or court decision compelling or not
compelling disclosure'' of ``information identifying a source
who provided information without a promise or agreement of
confidentiality made by the covered journalist as part of
engaging in journalism'' or ``records, other information, or
contents of a communication obtained without a promise or
agreement that such records, other information, or contents of
a communication would be confidential.''\91\ Thus, S. 987
appears to protect only confidential communications.
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\91\Id. at Sec. 7.
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Although Section 7 is presumably intended to limit S. 987
to confidential communications between a source and a
journalist, it does not put the burden on the journalist to
demonstrate that he or she is acting under a promise of
confidentiality. Rather, Section 2 appears to put the
government to its high burden without requiring the journalist
to demonstrate any such promise or agreement, making the
limitation of ``protected information'' to confidential
communications entirely toothless. As the purpose of the
privilege set forth in S. 987 is to permit a journalist to
protect a confidential source, there is no need for this
privilege to exist in instances where the source has waived
confidentiality.
Section 8: Procedures for review and appeal
Pursuant to Section 8, upon a showing of good cause, a
federal court can receive and consider a submission from the
parties in camera, under seal, or, ``if the court determines it
is necessary, ex parte.''\92\ A court can find the covered
journalist in civil or criminal contempt if he or she fails to
comply with an order of a federal court compelling disclosure
of protected information. ``To the extent practicable,'' a
court must make its determination within 30 days after
receiving such a motion.\93\ All appeals under this section
must be ``expedite[d] to the greatest extent possible.''\94\
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\92\Id. at Sec. 8(a).
\93\Id. at Sec. 8(c).
\94\Id. at Sec. 8(d).
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Section 8, however, does not prevent a journalist from
defying a contempt order, even after a federal court concludes
that the government has met the extremely high bar for
compelling disclosure. Journalists can continue to invoke the
privilege even after the source to which they promised
confidentiality has released the journalist from the agreement.
In short, S. 987 would impose significant burdens upon the
government while leaving ``covered journalists'' free to flout
the very law that protects them. This is inequitable. If a
journalist is going to seek protection under a shield statute,
he or she should have to comply with the statute in its
entirety: if the court concludes that the government has met
its high burden, the information should be turned over.
Also, Section 8 states that ``upon a showing of good cause,
[a] judge of the United States may receive and consider
submissions from the parties in camera, under seal, and if the
court determines it is necessary, ex parte.''\95\ It is not
sufficient to give unfettered discretion to the court to air
sensitive and classified information in public. The 2008 views
letter from Judge Mukasey and Mr. McConnell stated that leaving
this decision to the court's discretion will require the
government to ``almost certainly have to reveal additional
sensitive and classified information.''\96\ The lack of a
mandatory language (e.g., ``upon a showing of good cause . . .
[a] judge of the United States shall receive and consider
submissions from the parties'') could leave the government in
the untenable situation of having to either expose sensitive or
classified information in open court, or drop the case. In
other words, even if the government has shown good cause, the
court can still tell the government it has to litigate in open
court. Supporters of S. 987 have not justified the need for a
judge to be able to force the government to expose sensitive
information in open court, even where the government has shown
good cause for proceedings to be secret.
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\95\Id. at Sec. 8(a) (emphasis added).
\96\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26, at
7.
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The majority views argue that under the Classified
Information Protection Act (``CIPA''), federal district courts
have the ability to make some accommodation of the government's
interest in non-disclosure. But CIPA only applies to criminal
matters,\97\ and therefore would not apply in a case involving
the subpoena of a journalist, which is a civil proceeding. In
civil proceedings, the government must assert the state secrets
privilege to protect against the disclosure of classified
information. Regardless, CIPA and the state secrets privilege
apply to cases involving classified information, but many cases
involve sensitive information that is not necessarily
classified, e.g., white collar criminal investigations that
take years to develop and could be undone if the nature of the
investigation is released prematurely; cases involving gangs
and organized crime where, if sensitive information were
prematurely released, could lead to the intimidation of or
physical harm to witnesses.
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\97\See 18 U.S.C. app. 3, Sec. Sec. 1, 4.
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Section 9: Rule of construction
Section 9 provides that nothing in S. 987 may be construed
to preempt any law or claim to defamation, slander or libel;
modify the laws regarding grand jury secrecy--``except that
this Act shall apply to in any proceeding and in connection
with any issue arising under that section or the Federal laws
or rules relating to grand jury secrecy''; create new
obligations or modifications with respect to Foreign
Intelligence Surveillance Act (``FISA''), or preclude voluntary
disclosure to a federal entity in a situation that is not
governed by S. 987.\98\
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\98\S. 987, supra note 33, at Sec. 9.
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This section is mere window-dressing, as it in no way
modifies Section 3's proviso that where ``the alleged criminal
or tortious conduct is the act of communicating the documents
or information at issue,''\99\ the privilege set forth in
Section 2 remains available to the journalist. If there was any
doubt on this point, the ``Rule of Construction'' makes clear
that ``this Act shall apply in any proceeding and in connection
with any issue arising under . . . rules relating to grand jury
secrecy.''\100\
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\99\Id. at Sec. 3(b).
\100\Id. at 9(2).
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Further, similar language was criticized by Judge Mukasey
and Mr. McConnell in their 2008 views letter:
First, the provision leaves out key, non-FISA tools
that are essential to the protection of the national
security. The wire-tapping provisions of Title III
[and] pen-register trap-and-trace authority . . . are
as important, and in some cases more important, to the
Government's ability to investigate those who have
caused or would cause harm to our national security (to
say nothing of other serious crimes unrelated to the
national security). Yet this bill remains silent as to
them, leaving one with the distinct impression that
this legislation can and will--and indeed is intended
to--interfere with the Government's use of those tools
in cases where it seeks information provided to a
journalist by a confidential source. Prior to September
11, 2001, it was precisely this type of ambiguity
between application of tools available to intelligence
and law enforcement that created ``the wall''--a series
of barriers to information sharing that had serious
consequences for our counterterrorism efforts.
Second, it is unclear that the additional
language\101\ will in fact protect the Government's
ability to use FISA effectively. The goal, we are told,
is to ensure that the Government can continue to gather
and disseminate intelligence and surveillance
information pursuant to a FISA court order. Why not
then simply say, ``The provisions of this Act shall not
apply to the use of the authorities provided for in the
Foreign Intelligence Surveillance Act or to any
information acquired thereunder''?\102\
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\101\The ``additional language'' referred to by Judge Mukasey and
Mr. McConnell, which was included in similar predecessor legislation in
an attempt to address concerns expressed by them and others in the
intelligence and law enforcement communities, appears in Section 9 of
S. 987 verbatim: ``Nothing in this Act may be construed to . . . create
new obligations, or affect or modify the authorities or obligations of
a Federal entity with respect to the acquisition or dissemination of
information pursuant to the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.).''
\102\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26, at
4-5 (emphasis added).
Notably, Attorney General Holder's letter does not address
how this language, which was deemed woefully inadequate by his
predecessor, is now acceptable.\103\
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\103\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice,
supra note 32.
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Section 11: Definitions
As discussed previously, the definitions of ``covered
journalist'' covers an astonishingly broad class of persons.
Although the Committee accepted an amendment introduced by
Senators Feinstein and Durbin by a vote of 13 to 5, which
purports to narrow that definition, significant concerns
remain.
For example, although S. 987 purports to carve out agents
of foreign powers and designated terrorist organizations from
the definition of ``covered journalist,'' many terrorist media
are neither ``designated terrorist organizations'' nor covered
entities under the bill. Thus, all individuals and entities who
``gather'' or ``publish'' information about ``matters of public
interest'' but who are not technically designated terrorist
organizations, foreign powers, or agents of a foreign power
will be entitled to S. 987's protections--no matter how closely
linked they may be to terrorists or other criminals.
However, in his 2008 views letter, then-Secretary of
Defense Gates warned about a nearly identical exception in
similar predecessor legislation: ``This would have the
unintended consequence of encouraging unauthorized disclosures
and increasing our nation's vulnerability to adversaries'
counterintelligence efforts to recruit covered persons.''\104\
Similarly, Judge Mukasey and Mr. McConnell warned that the
prohibition on a ``designated terrorist organization'' from
being covered is insufficient and that ``individuals seeking to
avail themselves of this privilege will be able to do so as
long as they can stay one step ahead of the agencies
responsible for designating terrorist organizations.''\105\
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\104\Letter from Robert Gates, Sec'y of Defense, U.S. Dep't of
Defense, supra note 28, at 1.
\105\Letter from Michael B. Mukasey, Att'y Gen., U.S. Dep't of
Justice & J.M. McConnell, Dir. of Nat'l Intelligence, supra note 26, at
6.
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Also, the definition of protected information makes
multiple references to the term ``journalism,'' which is not
defined in S. 987.
Finally, the definition of ``covered journalist'' raises
serious First Amendment concerns, as discussed in the
Additional Views submitted herein by Senators Cornyn, Sessions,
Lee, and Cruz.
CONCLUSION
S. 987, the ``Free Flow of Information Act of 2013,'' would
dramatically shift the process by which law enforcement goes
about compelling disclosure of information from journalists. By
establishing a nearly impenetrable privilege at the federal
level, it would seriously impede criminal investigations and
prosecutions, including those dealing with cases of terrorism
and national security.
There is no question that a free press is vital to our
democracy. Nevertheless, we must remember that the Constitution
also speaks of securing the ``blessings of liberty to ourselves
and our posterity,'' insuring ``domestic tranquility,'' and
providing ``for the common defense.'' In the face of the most
devastating leaks of classified information in our nation's
history and a continued struggle to protect ourselves from
another terrorist attack, we should not respond to overreaches
by the Obama administration with an overbroad piece of
legislation that does not even address those transgressions--as
the bill's sponsors concede--at the expense of the rule of law
and the security of the American people.
In their 2008 letter, the heads of the CIA, FBI, NSA,
Defense Intelligence Agency, Department of Homeland Security,
and the Departments of Defense, State, and Treasury, among
others, relayed serious concerns about similar predecessor
legislation, many of which are relevant to this bill:
[T]he bill will undermine our ability to protect
intelligence sources and methods and could seriously
impede national security investigations . . . The high
burden placed on the Government . . . will make it
difficult, if not impossible, to investigate harms to
the national security and only encourage others to
illegally disclose the Nation's sensitive secrets.
These problems, in turn, will impair our ability to
collect vital foreign intelligence, including through
critical relationships with foreign governments which
are grounded in confidence in our ability to protect
information from public disclosure.
Safeguarding classified information in a free and
open society already is a challenge for the
intelligence community. We ask that Congress not make
that challenge even more daunting.
Now more than ever, in the face of historic breaches of our
nation's security, Congress should heed this warning. Before
proceeding with this or any similar legislation, we must first
determine how it will affect the ability of the United States
to keep critical classified and sensitive information from our
enemies, and to identify and hold accountable those who
willfully jeopardize the security of this nation by leaking
classified information.
Jeff Sessions.
John Cornyn.
ADDITIONAL MINORITY VIEWS FROM SENATORS CORNYN, SESSIONS, LEE, AND CRUZ
On December 15, 1791, the United States of America ratified
the Bill of Rights--the first ten amendments to the U.S.
Constitution. The first among them states: ``Congress shall
make no law . . . abridging the freedom . . . of the press[.]''
United States Constitution, amend. I.
The freedom of the press does not discriminate amongst
groups or individuals--it applies to all Americans. As the
Supreme Court has long recognized, it was not intended to be
limited to an organized industry or professional journalistic
elite. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (the
``liberty of the press is the right of the lonely pamphleteer
who uses carbon paper or a mimeograph just as much as of the
large metropolitan publisher who utilizes the latest
photocomposition methods. Freedom of the press is a fundamental
personal right[.]''); Lovell v. Griffin, 303 U.S. 444, 452
(1938) (``The liberty of the press is not confined to
newspapers and periodicals. It necessarily embraces pamphlets
and leaflets. . . . The press in its historic connotation
comprehends every sort of publication which affords a vehicle
of information and opinion.'').
The Founders recognized that selectively extending the
freedom of the press would require the government to decide who
was a journalist worthy of protection and who was not, a form
of licensure that was no freedom at all. As Justice White
observed in Branzburg, administering a privilege for reporters
necessitates defining ``those categories of newsmen who
qualified for the privilege.'' 408 U.S. at 704 That inevitably
does violence to ``the traditional doctrine that liberty of the
press is the right of the lonely pamphleteer who uses carbon
paper or a mimeograph just as much as of the large metropolitan
publisher who utilizes the latest photocomposition methods.''
Id.
The First Amendment was adopted to prevent--not further--
the federal government licensing of media. See Lovell, 303 U.S.
at 451 (striking an ordinance ``that . . . strikes at the very
foundation of the freedom of the press by subjecting it to
license and censorship. The struggle for the freedom of the
press was primarily directed against the power of the
licensor.'').
But federal government licensing is exactly what the Free
Flow of Information Act would create. The bill identifies
favored forms of media--``legitimate'' press--by granting them
a special privilege. That selective grant of privilege is
inimical to the First Amendment, which promises all citizens
the ``freedom of the press.'' See Branzburg, 408 U.S. at 704
(``Freedom of the press is a fundamental personal right[.]'')
(emphasis added). It also threatens the viability of any other
form of press. The specially privileged press will gain easier
access to news. That will tip the scales against its
competitors and make it beholden to the government for that
competitive advantage. A law enacted to protect the press from
the state will, in fact, make that press dependent upon the
federal government--anything but free.
Proponents of this bill suggest that, because the
Constitution does not provide a reporter's privilege,
Congress's provision of a limited privilege cannot raise any
constitutional concerns. Those proponents misunderstand--and
thus run afoul of--the First Amendment. The First Amendment was
adopted to prevent press licensure. While it does not create a
``reporter's privilege'' on its own, it abhors the selective
grant of privilege to one medium over another. The American
Revolution was stoked by renegade pamphleteers and town criers
who used unlicensed presses to overthrow tyranny. Today, ``any
person with a phone line can become a town crier with a voice
that resonates farther than it could from any soapbox. Through
the use of Web pages, mail exploders, and newsgroups, the same
individual can become a pamphleteer.'' Reno v. Am. Civil
Liberties Union, 521 U.S. 844, 870 (1997). If today's town
crier or pamphleteer must meet a test set by the federal
government to avail themselves of liberty, we have gone less
far from tyranny than any of us want to admit.
This bill runs afoul of the First Amendment to the United
States Constitution and amounts to de facto licensing. It would
weaken the newly-illegitimate press, render the specially
privileged press supplicant to the federal government and
ultimately undermine liberty.
This legislation also raises a number of serious national
security concerns, as discussed in the minority views authored
by Senator Sessions.
For these reasons, we oppose this bill.
John Cornyn.
Jeff Sessions.
Michael S. Lee.
Ted Cruz.
IX. Changes to Existing Law Made by the Bill, as Reported
The bill makes no changes to existing Federal law.
