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                                                       Calendar No. 238
113th Congress                                                   Report
                                 SENATE
 1st Session                                                    113-118

======================================================================



 
                   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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \9\See Rachel Smolkin, ``Under Fire,'' American Journalism Review, 
February/March 2005, available at http://www.ajr.org/
article.asp?id=3810.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \10\Letter from Principal Deputy Attorney General Peter J. Kadzik 
to Hon. Bob Goodlatte, June 4, 2013.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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/.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \12\See United States v. Sterling, No. 11-5028, Order, October 15, 
2013.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

   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.
---------------------------------------------------------------------------
    \14\8 Wigmore, Evidence 2191, 2192, 2285 (McNaughton rev. 1961).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

  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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                  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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

          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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \91\Id. at Sec. 7.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \92\Id. at Sec. 8(a).
    \93\Id. at Sec. 8(c).
    \94\Id. at Sec. 8(d).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \97\See 18 U.S.C. app. 3, Sec. Sec. 1, 4.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \98\S. 987, supra note 33, at Sec. 9.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \99\Id. at Sec. 3(b).
    \100\Id. at 9(2).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \103\Letter from Eric Holder, Att'y Gen., U.S. Dep't of Justice, 
supra note 32.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.