A Section-by-Section Analysis of Federal Shield Law Bill

May 22, 2013


H.R. 1962, the “Free Flow of Information Act of 2013”

Section-by-Section Analysis

Sec. 1. Short Title. Section 1 sets forth the short title of the bill as the “Free Flow of Information Act of 2013.”

Sec. 2. Compelled Disclosure from Covered Persons. Section 2 establishes a procedure by which disclosure of confidential information from a journalist may be compelled.

Subsection (a) states that in any matter arising under Federal law, a Federal entity may not compel a journalist to testify or provide documents related to information obtained or created by the journalist, unless four conditions are met by a preponderance of the evidence and after notice and an opportunity to be heard.

1.     The party seeking production must have exhausted all reasonable alternative sources of the information.

2.     If the privilege pertains to a criminal investigation or prosecution, the party seeking production must have reasonable grounds to believe a crime has occurred and the information sought is critical to the investigation, prosecution, or defense of the case. If it is a civil investigation, the information must be critical to the successful completion of the case.

3.     If the information could reveal the identity of a confidential source, disclosure is only allowed if it is necessary to:

A.   prevent an act of terrorism against the United States or its allies or other significant and specified harm to national security;

B.    prevent imminent death or significant bodily harm; or

C.    identify a person who has disclosed a trade secret actionable under 18 U.S.C. Sec. 1831 or 1832; individually identifiable health information as defined in section 1171(6) of the Social Security Act; or nonpublic personal information as defined in section 509(4) of the Gramm-Leach-Bliley Act.

4.     The party seeking production must prove that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information.

Subsection (b) states that the content of any information that can be compelled should not be overbroad, unreasonable or oppressive and, where appropriate, should be limited to the purpose of verifying published information or describing surrounding circumstances relevant to the accuracy of the published information, and be tailored in subject matter and period of time so it is not peripheral, nonessential, or speculative information.

Subsection (c) states that this Act may not be construed to apply to civil defamation, slander or libel claims or defenses under State law, regardless of whether or not the claims or defenses are raised in State or Federal court. In providing for the application of State privilege law to State-law defamation, slander and libel claims or defenses, this section--like the Act as a whole--thus incorporates Federal Rule of Evidence 501, which provides that “with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.”

Sec. 3. Compelled Disclosure From Communications Service Providers. Section 3 applies when the Federal entity attempts to get information from a communications service provider (CSP) that relates to a business transaction between the CSP and the covered person.

Subsection (a) states that section 2 applies in the same manner to these transactions. Subsection (a) also clarifies that testimony or documents sought from the CSP of a non-covered person is not protected.

Subsection (b) sets out the procedures for notice and hearing. A court may compel testimony or disclosure of documents only after the covered person has notice of the subpoena (no later than the time the subpoena is issued) and an opportunity to be heard before the disclosure is compelled.

Subsection (c) provides that notice may be delayed if the court determines by clear and convincing evidence that not delaying it would pose a substantial threat to the integrity of a criminal investigation.

Sec. 4. Definitions. Section 4 defines various terms.

1.     “Communications service provider” is defined as a person who transmits information of a customer's choosing by electronic means. The term includes a telecommunications carrier, an information service provider, and an information content provider (as defined in Title 47 of the United States Code).

2.      “Covered person” is defined as a person who, for financial gain or livelihood, is engaged in journalism, including supervisors, employers, parents, subsidiaries, or affiliates of a covered person. The term does not include any person who is a “foreign power” or “agent of a foreign power” as defined in section 101 of the Foreign Intelligence Surveillance Act, or any person who is a foreign terrorist organization, designated by the Secretary of State, in accordance with section 219 of the Immigration and Nationality Act.

3.     “Document” is defined to include writings, recordings, and photographs (as defined in the Federal Rules of Evidence).

4.     “Federal entity” is defined as an entity or employee of the judicial or executive branch or an administrative agency with subpoena power.

5.     “Journalism” is defined as “gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news of information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”