Journalists' Privilege: Overview of the Law and Legislation in the 109th and 110th Congresses

Journalists’ Privilege: Overview of the Law and
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Legislation in the 109 and 110 Congresses
Updated July 29, 2008
Henry Cohen
Legislative Attorney
American Law Division
Kathleen Ann Ruane
Legislative Attorney
American Law Division

Journalists’ Privilege: Overview of the Law and
Legislation in the 109^th and 110^th Congresses
Summary
In Branzburg v. Hayes, 408 U.S. 665, 679-680 (1972), the Supreme Court wrote
journalists claim “that to gather news it is often necessary to agree either not to
identify the source of information published or to publish only part of the facts
revealed, or both; that if the reporter is nevertheless forced to reveal these
confidences to a grand jury the source so identified and other confidential sources of
other reporters will be measurably deterred from furnishing publishable information,
all to the detriment of the free flow of information protected by the First
Amendment.” The Court held, nonetheless, that the First Amendment did not
provide even a qualified privilege for journalists to refuse “to appear and testify
before state or federal grand juries.” The only situation it mentioned in which the
First Amendment would allow a reporter to refuse to testify was in the case of “grand
jury investigations ... instituted or conducted other than in good faith.... Official
harassment of the press undertaken not for purposes of law enforcement but to
disrupt a reporter’s relationship with his news sources would have no justification.”
Though the Supreme Court concluded that the First Amendment does not
provide a journalists’ privilege in grand jury proceedings, 49 states have adopted a
journalists’ privilege in various types of proceedings; 33 have done so by statute, and

16 by court decision. Journalists have no privilege in federal proceedings.

On July 6, 2005, a federal district court in Washington, DC, found Judith Miller
of the New York Times in contempt of court for refusing to cooperate in a grand jury
investigation relating to the leak of the identity of an undercover CIA agent. The
court ordered Ms. Miller to serve time in jail. Ms. Miller spent 85 days in jail. She
secured her release only after her informant, I. Lewis Libby, gave her permission to
reveal his identity.
Congress has considered creating a journalists’ privilege for federal proceedings,
and bills to adopt a journalists’ privilege have been introduced in the 109^th and 110^th
Congresses, in both the House and the Senate. These bills generally would provide
for a more narrow privilege than the privileges provided by state laws. During the
109^th Congress three bills were introduced: S. 1419, S. 2831, and H.R. 3323. Three
bills have also been introduced in the 110^th Congress: S. 1267, S. 2035, and H.R.

2102. On October 16, 2007, the House passed H.R. 2102.

Contents
In troduction ......................................................1
Overview of the Law...............................................1
In re: Grand Jury Subpoena, Judith Miller...............................4
Congressional Response in the 109^th Congress...........................5
S. 1419/H.R. 3323.............................................5
S. 2831......................................................7
Congressional Response in the 110^th Congress...........................7
H.R. 2102, as passed by the House................................8
S. 2035.....................................................11

Journalists’ Privilege: Overview of the Law
th
and Legislation in the 109
th
and 110 Congresses
Introduction
On July 6, 2005, a federal district court in Washington, DC, found Judith Miller
of the New York Times in contempt of court for refusing to cooperate in a grand jury
investigation relating to the leak of the identity of an undercover CIA agent. The
court ordered Ms. Miller to serve time in jail. Ms. Miller spent 85 days in jail. She
secured her release only after her informant, I. Lewis Libby, gave her permission to
reveal his identity.
This incident drew attention to the question whether journalists should have a
right to withhold information sought in judicial proceedings. Forty-nine states afford
journalists some protection from compelled release of their confidential sources.¹
The question remains, however, as to whether a concomitant federal privilege exists.²
The Supreme Court has addressed the issue of journalists’ privilege under the First
Amendment only once; in Branzburg v. Hayes, it held that the First Amendment
provided no privilege to refuse to testify before a grand jury, but it left open the
question of whether the First Amendment provides journalists with a privilege in any
other circumstances.³ But, whether or not the First Amendment provides a privilege
for journalists to refuse to reveal confidential sources, Congress may provide a
privilege through legislation.
Overview of the Law
The Supreme Court has written only one opinion on the subject of journalists’
privilege: Branzburg v. Hayes, in which the Court decided three cases. After
explaining the grounds on which journalists seek a privilege, the Court noted that the
reporters in the cases it was considering were seeking only a qualified privilege not
to testify: “Although the newsmen in these cases do not claim an absolute privilege
against official interrogation in all circumstances, they assert that the reporter should
not be forced either to appear or to testify before a grand jury or at trial until and

¹ For an overview of state laws that provide journalist privileges, see CRS Report RL32806,
Journalists’ Privilege to Withhold Information in Judicial and Other Proceedings: State
Shield Statutes, by Henry Cohen.
² See discussion of In re: Grand Jury Subpoena, Judith Miller, infra, note 9.
³ 408 U.S. 665 (1972).

unless sufficient grounds are shown for believing that the reporter possesses
information relevant to a crime the grand jury is investigating, that the information
the reporter has is unavailable from other sources, and that the need for the
information is sufficiently compelling to override the claimed invasion of First
Amendment interests occasioned by the disclosure.”⁴
In Branzburg v. Hayes, however, the Court held that the First Amendment did
not provide even a qualified privilege for journalists to refuse “to appear and testify
before state or federal grand juries.”⁵ The only situation it mentioned in which the
First Amendment would allow a reporter to refuse to testify was in the case of “grand
jury investigations ... instituted or conducted other than in good faith.... Official
harassment of the press undertaken not for purposes of law enforcement but to
disrupt a reporter’s relationship with his news sources would have no justification.”⁶
The reporters in all three of the cases decided in Branzburg had sought a
privilege not to testify before grand juries. At one point in its opinion, however, the
Court wrote that “reporters, like other citizens, [must] respond to relevant questions
put to them in the course of a valid grand jury investigation or criminal trial.”⁷ The
reference to criminal trials should be considered dictum, and therefore not binding
on lower courts.
Branzburg was a 5-4 decision, and, though Justice Powell was one of the five
in the majority, he also wrote a concurring opinion in which he found that reporters
have a qualified privilege to refuse to testify regarding criminal conduct:
Indeed, if the newsman is called upon to give information bearing only a remote
and tenuous relationship to the subject of the investigation, or if he has some
other reason to believe that his testimony implicates confidential source
relationships without a legitimate need of law enforcement, he will have access
to the Court on a motion to quash and an appropriate protective order may be
entered. The asserted claim to privilege should be judged on its facts by the
striking of a proper balance between freedom of the press and the obligation of⁸
all citizens to give relevant testimony with respect to criminal conduct.
Powell’s opinion leaves it uncertain whether the First Amendment provides a
qualified privilege for journalists to refuse to testify before grand juries.⁹ But “courts

⁴ Id. at 680.
⁵ Id. at 667.
⁶ Id. at 707-708.
⁷ Id. at 691.
⁸ Id. at 710.
⁹ Justice Stewart’s dissenting opinion in Branzburg referred to “Justice Powell’s enigmatic
concurring opinion.” Id. at 725. Judge Tatel of the D.C. Circuit wrote, “Though providing
the majority’s essential fifth vote, he [Powell] wrote separately to outline a ‘case-by-case’
approach that fits uncomfortably, to say the least, with the Branzburg majority’s categorical
rejection of the reporters’ claims.” In re: Grand Jury Subpoena, Judith Miller, 397 F.3d
(continued...)

in almost every circuit around the country interpreted Justice Powell’s concurrence,
along with parts of the Court’s opinion, to create a balancing test when faced with
compulsory process for press testimony and documents outside the grand jury
contex t.”¹⁰
Whether or not the First Amendment provides a journalists’ privilege, Congress
and state legislatures may enact statutory privileges, and federal and state courts may
adopt common-law privileges.¹¹ Congress has not enacted a journalists’ privilege,
though bills that would do so have been introduced in the 110^th Congress and are
discussed below. Thirty-three states and the District of Columbia have enacted
journalists’ privilege statutes, which are often called “shield” statutes.¹²
As for federal courts, Federal Rule of Evidence 501 provides that “the privilege
of a witness ... shall be governed by the principles of the common law as they may
be interpreted by the courts of the United States in the light of reason and
experience.”¹³ The federal courts have not resolved whether the common law
provides a journalists’ privilege. The U.S. Court of Appeals for the District of
Columbia, for one, “is not of one mind on the existence of a common law privilege
[in federal court].... However, all [three judges on the panel for the case] believe that
if there is any such privilege, it is not absolute and may be overcome by an
appropriate showing.”¹⁴
As for state courts, those in 16 states provide common law protection, making
a total of 49 states plus the District of Columbia that have a journalists’ privilege.¹⁵
Wyoming is the state without either a statutory or common-law privilege.

⁹ (...continued)
964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc
denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150
(2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006).
¹⁰ Association of the Bar of the City of New York, The Federal Common Law of Journalists’
Privilege: A Position Paper (2005) at 4-5 [http://www.abcny.org/pdf/report/White%20paper
%20on%20reporters%20privilege.pdf]
¹¹ Branzburg v. Hayes, 408 U.S. at 706.
¹² These statutes are set forth in CRS Report RL32806, Journalists’ Privilege to Withhold
Information in Judicial and Other Proceedings: State Shield Statutes. Eighteen of these
statutes existed at the time of Branzburg; 15 states and the District of Columbia have
enacted them since 1972. Laurence B. Alexander, Looking Out for the Watchdogs: A
Legislative Proposal Limiting the Newsgathering Privilege to Journalists in the Greatest
Need of Protection for Sources and Information, 20 Yale Law and Policy Review 97, 110
(2002).
¹³ Rule 501 also provides that, in civil actions and proceedings brought under state law, the
privilege shall be determined in accordance with state law. The Federal Rules of Evidence
are codified in title 28 of the U.S. Code.
¹⁴ In re: Grand Jury Subpoena, supra, note 9, at 972.
¹⁵ The figure of 18 appears in In re: Grand Jury Subpoena, supra, note 9, at 994, but after
the decision in this case, two more states enacted shield statutes. Citations to 14 of these

18 appear in footnote 6 on page 18 of Association of the Bar, supra, note 10.

In 1980, the Department of Justice adopted a rule, which remains in effect
without amendment, providing in part, “In determining whether to request issuance
of a subpoena to a member of the news media, or for telephone toll records of any
member of the news media, the approach in every case must be to strike the proper
balance between the public’s interest in effective law enforcement and the fair
administration of justice.”¹⁶
In re: Grand Jury Subpoena, Judith Miller
In re: Grand Jury Subpoena, Judith Miller is the federal court of appeals
decision that declined to overturn the finding of civil contempt against journalists
Judith Miller and Matthew Cooper for refusing to give evidence in response to
subpoenas served by Special Counsel Patrick Fitzgerald in his investigation of the
disclosure of the identity of a CIA agent.¹⁷ After the Supreme Court declined to
review the decision, Matthew Cooper agreed to testify, but Judith Miller continued
to refuse and was imprisoned as a result.
The case was decided by a three-judge panel that issued an opinion for the court
written by Judge Sentelle, with all three judges — Sentelle, Henderson, and Tatel —
issuing separate concurring opinions. The court’s opinion, citing Branzburg, held
that the First Amendment does not permit journalists to refuse to testify before a
grand jury and said (as quoted above) that the court was not of one mind on the
existence of a common-law privilege but that, even if there is one, the special counsel
had overcome it.
As for the three concurring opinions, Judge Sentelle expressed his view that
there is no common-law privilege; Judge Henderson expressed her view that, in the
interest of judicial restraint, the court should not “decide anything more today than
that the Special Counsel’s evidentiary proffer overcomes any hurdle, however high,
a federal common-law reporter’s privilege may erect”; and Judge Tatel addressed the
issues of both the constitutional privilege and the common-law privilege.¹⁸
As for the constitutional privilege, Judge Tatel said that he was “uncertain,” in
the light of Justice Powell’s “enigmatic concurring opinion” in Branzburg, that there
is no “constitutional reporter privilege in the grand jury context.” Even if there is,
however, he agreed that such a privilege would not benefit Miller or Cooper in the
case before the court. As for the common-law privilege, Judge Tatel concluded that

¹⁶ 28 C.F.R. § 50.10.
¹⁷ In re: Grand Jury Subpoena, supra, note 9.
¹⁸ Judge Tatel also wrote that, to conclude, as Judge Henderson had, “that the Special
Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-law
reporter’s privilege may erect,” requires the adoption of a standard by which to determine
when the privilege is overcome. But, to adopt a standard without first determining that a
privilege exists would be, if a privilege does not exist, to “establish a precedent, potentially
binding on future panels, regarding the scope of the assumed privilege, even though
resolving that question was entirely unnecessary.” This would be “an undertaking hardly
consistent with principles of judicial restraint.” Id. at 989-990.

“‘reason and experience’ [quoting Federal Rule of Evidence 501] as evidenced by the
laws of forty-nine states and the District of Columbia, as well as federal courts and
the federal government, support recognition of a privilege for reporters’ confidential
sources.” Judge Tatel found, however, that, in the present case, “the special counsel
has established the need for Miller’s and Cooper’s testimony.”
Congressional Response in the 109^th Congress
On July 18, 2005, identical bills were introduced in the Senate and the House
(S. 1419 and H.R. 3323), introduced by Senator Lugar and Representative Pence,¹⁹
respectively, but both with bipartisan support. On October 19, 2005, the Senate
Committee on the Judiciary held a hearing on S. 1419. Previously, on July 20, 2005,
the Committee held a hearing on “Reporters’ Shield Legislation: Issues and
Implications.” Matthew Cooper, mentioned above in connection with In re: Grand
Jury Subpoena, Judith Miller, reportedly testified that, “[w]ithout whistle-blowers
who feel they can come forward to the reporters with a degree of confidence, we
might never have known the extent of the Watergate scandal or Enron’s deceptions
or events that needed to be exposed.”²⁰ The Department of Justice, however,
opposed the legislation, with Deputy Attorney General James Comey stating in
written testimony that “[t]he bill is bad public policy primarily because it would bar
the government from obtaining information about media sources — even in the most
urgent of circumstances affecting the public’s health or safety or national security.”
S. 1419/H.R. 3323
S. 1419/H.R. 3323 would establish a qualified privilege with respect to both the
identity of a source and other information, but it would impose greater limitations on
the ability to compel disclosure of the identity of a source than of other information.
We will pose and answer questions about its salient features.
Where would the privilege apply? S. 1419/H.R. 3323 would apply in any
“Federal entity,” which the bill defines to include the executive branch, the judicial
branch, and administrative agencies, but not the legislative branch. The bill would
not apply in state courts or other state entities.
What would be protected from disclosure? S. 1419/H.R. 3323 would
protect (subject to qualifications discussed below) any testimony and any documents.
Its privilege would not apply to “any testimony or document that consists only of
commercial or financial information that is not related to news gathering or the
dissemination of news and information by the covered person.”

¹⁹ S. 1419 is a revision of Sen. Lugar’s S. 340, 109^th Cong., and H.R. 3323 is a revision of
Rep. Pence’s H.R. 581, 109^th Cong. The two earlier bills are identical to each other.
Another journalists’ shield bill, S. 369, was introduced by Sen. Dodd, but Sen. Dodd later
cosponsored S. 1419.
²⁰ Eunice Moscoso, “Proposed media shield law draws fire,” Atlanta Journal-Constitution
(July 21, 2005).

Who could refuse to disclose? S. 1419/H.R. 3323 provides that a
“covered person” — a person who may assert the privilege that the bill would create
— is “an entity that disseminates information by print, broadcast, cable, satellite,
mechanical, photographic, electronic, or other means and that — (i) publishes a
newspaper, book, magazine, or other periodical in print or electronic form; (ii)
operates a radio or television broadcast station ... cable system, or satellite carrier, or
... (iii) operates a news agency or wire service.” A “covered person” under the bill
would also include “a parent, subsidiary, or affiliate of such an entity to the extent
that such parent, subsidiary, or affiliate is engaged in news gathering or the
dissemination of news and information; or ... an employee, contractor, or other
person who gathers, edits, photographs, records, prepares, or disseminates news or
information for such an entity.”
The bill’s privilege would “apply to any testimony or document that a third party
or a federal entity seeks from a communications service provider if such testimony
or document consists of any record, information, or other communication that relates
to a business transaction between a communications service provider and a covered
person.” A “communications service provider” would be defined as “any person that
transmits information of the customer’s choosing by electronic means; and ...
includes a telecommunications carrier, an information service provider, an interactive
computer service provider, and an information content provider (as such terms are
defined in the sections 3 and 230 of the Communications Act of 1934 (47 U.S.C.
153, 230)).” In other words, this provision would allow a covered person’s telephone
company or Internet service provider, for example, to assert a privilege not to
disclose the covered person’s phone or e-mail records.
The third party or federal entity seeking to compel testimony or a document
from a communications service provider would have to give notice to the covered
person who is a party to the business transaction with the communications service
provider, and the covered person would be entitled to be heard by the court before the
testimony or disclosure is compelled.
The bill’s requirement as to what an entity must publish or operate to be a
covered person would limit the bill’s coverage so that it apparently would not protect
bloggers or others who post on the Internet, except those who write for Webzines
(unless a blog were considered a magazine). It would apparently also not protect a
freelance reporter who gathered information while having no contract with an entity
to do so. If he subsequently sold the information to an entity, however, he might be
viewed as a “contractor” or as a “person who gathers ... news or information for such
an entity”; this would depend upon how the quoted terms are construed.
S. 1419 apparently would also not protect people who gather news to
disseminate solely on street corners, or who gather news that they attempt to publish
solely in letters to the editor.
What exceptions would permit disclosure to be compelled? S.
1419/H.R. 3323’s privilege would be qualified with respect both to the identity of a
source and to other information, but it would impose additional limitations on
compelling disclosure of the identity of a source. A federal entity would not be
permitted to compel disclosure of any testimony or document — that would reveal

sources or other information — unless a court determines by clear and convincing
evidence that the entity “has unsuccessfully attempted to obtain such testimony or
document from all persons from which such testimony or document could reasonably
be obtained other than a covered person.” In addition, “in a criminal investigation
or prosecution based on information obtained from a person other than the covered
person,” the court would have to find, for disclosure to be compelled, that “there are
reasonable grounds to believe that a crime occurred” and that “the testimony or
document sought is essential to the investigation, prosecution, or defense.... [I]n a
matter other than a criminal investigation or prosecution, based on information
obtained from a person other than a covered person, the testimony or document
sought [would have to be] essential to a dispositive issue of substantial importance
to the matter.” To compel disclosure of the identity of a source or of information that
could reasonably be expected to lead to the discovery of the identity of a source, the
court would have to find, in addition to the above items, that disclosure is (1)
“necessary to prevent imminent and actual harm to national security,” (B) “would
prevent such harm,” and (C) “the harm sought to be redressed ... outweighs the public
interest in protecting the free flow of information.”
S. 2831
On May 18, 2006, Senator Lugar introduced a new journalists’ privilege bill —
S. 2831, 109^th Congress. The Senate Committee on the Judiciary held hearings on
it on September 20, 2006.
Congressional Response in the 110^th Congress
Members of the 110^th Congress have introduced bills similar to those introduced
in the 109^th Congress. In comparison with the 109^th Congress bill, however, the bills
in the 110^th Congress expand the definition of “covered persons” but narrow the
scope of the privilege that they would provide.
On May 2, 2007, companion bills, titled the “Free Flow of Information Act of
2007,” were introduced in the Senate and the House (S. 1267 and H.R. 2102) by
Senator Lugar and Representative Boucher, respectively. On August 1, 2007, after
lengthy debate, the House Judiciary Committee approved H.R. 2102 with
amendments added by voice vote, despite reports of concern expressed by some
Members that the definition of “journalist” remained unclear in the final version of
the bill.²¹ The bill was reported on October 10, 2007,²² and the House passed it with
amendments on October 16, 2007, by a vote of 398-21.
The companion bill, S. 1267, remains in committee, and a new version of the
Free Flow of Information Act of 2007, S. 2035, was introduced in the Senate on

²¹ Elaine S. Povich, Journalist Shield Legislation Moves to the House Floor, CongressDaily,
August 1, 2007, available at [http://nationaljournal.com/members/markups/2007/08/
mr _20070801_7.htm] .
²² H.Rept. 110-370, 110^th Cong., 1^st sess. (2007).

September 10, 2007, by Senator Arlen Specter. On October 22, 2007, the Senate
Committee on the Judiciary reported it with amendments but without a written report.
The motion to proceed to consideration of S. 2035 on the Senate floor was withdrawn
on July 28, 2008.
S. 1267, S. 2035, and H.R. 2102 would establish a qualified privilege with
respect to both the identity of a source and other information obtained by covered
persons with the assurance of confidentiality.
H.R. 2102, as passed by the House
Where would the privilege apply? H.R. 2102 would apply the privilege
in cases arising under federal law in which a “Federal entity” seeks disclosure. The
bill defines a “Federal entity” as “an entity or employee of the judicial or executive
branch or an administrative agency of the Federal Government with the power to
issue a subpoena or issue other compulsory process,” but not the legislative branch.
The privilege provision in the bill would not apply in state courts or other state
entities.
What would be protected from disclosure? H.R. 2102 would protect
(subject to qualifications discussed below) any testimony and any documents, defined
as “writings, recordings, and photographs, as those terms are defined by Federal Rule
of Evidence 1001 (28 U.S.C. App.),” that are obtained or created by a “covered
person as part of engaging in journalism.”
Even if one of the exceptions outlined below applies, H.R. 2102 would place
limitations on compelled disclosure. Disclosure that is compelled shall “not be
overbroad, unreasonable, or oppressive and, as appropriate, be limited to the purpose
of verifying published information or describing any surrounding circumstances
relevant to the accuracy of such published information; and be narrowly tailored ...
so as to avoid production of peripheral, nonessential, or speculative information.”
Who could refuse to disclose? H.R. 2102 provides that a “covered
person” means “a person who regularly gathers, prepares, collects, photographs,
records, writes, edits, reports, or publishes news or information that concerns local,
national, or international events or other matters of public interest for dissemination
to the public for a substantial portion of the person’s livelihood or for substantial
financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of
such covered person.” This definition is narrower than the definition of “covered
person” in H.R. 2102 as it was introduced. The version of H.R. 2102 that passed the
House also would provide that “covered persons” shall not include foreign powers
or agents of foreign powers, any organization designated by the Secretary of State as
a foreign terrorist organization, any person included on the Annex to Executive Order
No. 13224, any person who is a specially designated terrorist, or any terrorist
organization. H.R. 2102 would define “journalism” as “the gathering, preparing,
collecting, photographing, recording, writing, editing, reporting, or publishing of
news or information that concerns local, national, or international events or other
matters of public interest for dissemination to the public.”

The bill’s privilege also would apply to compelled disclosure from
communications service providers. The privilege would apply to any document,
record, information, or other communication that relates to a business transaction
between a communications service provider and a covered person, if that document
or testimony would fall under the privilege when sought from the covered person.
A “communications service provider” would be defined as “any person that transmits
information of the customer’s choosing by electronic means; and ... includes a
telecommunications carrier, an information service provider, an interactive computer
service provider, and an information content provider (as such terms are defined in
the sections 3 and 230 of the Communications Act of 1934 (47 U.S.C. 153, 230)).”
In other words, this provision would allow a covered person’s telephone company or
Internet service provider, for example, to assert a privilege not to disclose the covered
person’s phone or e-mail records.
The third party or federal entity seeking to compel testimony or a document
from a communications service provider would have to give notice to the covered
person who is a party to the business transaction with the communications service
provider. The covered person would be entitled to be heard by the court before the
testimony or disclosure is compelled.
What exceptions would permit disclosure to be compelled? H.R.
2102’s privilege would be qualified with respect both to the identity of a source and
to other information. A federal entity would not be permitted to compel disclosure
of any testimony or document that would reveal sources or other information, unless
a court determines by a preponderance of the evidence, after providing notice and an
opportunity to be heard to the covered person, that the entity “has exhausted all
reasonable alternative sources (other than a covered person) of the testimony or
document.”
In addition, “in a criminal investigation or prosecution based on information
obtained from a person other than the covered person,” the court would have to find,
for disclosure to be compelled, that “there are reasonable grounds to believe that a
crime has occurred” and that “the testimony or document sought is critical to the
investigation or prosecution or to the defense against the prosecution.... [I]n a matter
other than a criminal investigation or prosecution, based on information obtained
from a person other than the covered person, the testimony or document sought
[would have to be] critical to the successful completion of the matter.”
To compel disclosure of the identity or of information that could reasonably be
expected to lead to the discovery of the identity of a source, the court would have to
find that disclosure is (A) “necessary to prevent, or to identify any perpetrator of, an
act of terrorism against the United States or its allies or other significant and
specified harm to national security”; (B) “necessary to prevent imminent death or
significant bodily harm”; (C) “necessary to identify a person who has disclosed” a
trade secret, individually identifiable health information, or nonpublic personal
information; or (D) “essential to identify in a criminal investigation or prosecution
a person who without authorization disclosed properly classified information and
who at the time of such disclosure had authorized access to such information; and
such unauthorized disclosure has caused or will cause significant and articulable
harm to national security.”

After determining that the evidence satisfies one of the above provisions, the
court would then determine, before compelling disclosure of the information, “that
the public interest in compelling disclosure of the information or document involved
outweighs the public interest in gathering or disseminating news or information.”
For the purposes of making this determination “a court may consider the extent of
any harm to national security.”
H.R. 2102 would create a further exception from the privilege for information,
records, documents, or items “obtained as the result of the eyewitness observation by
the covered person of alleged criminal conduct or as the result of the commission of
alleged criminal or tortious conduct by the covered person”; it would permit
disclosure in such cases if a federal court determines that the party seeking disclosure
has exhausted all other reasonable efforts to obtain the information from alternative
sources. This exception to the privilege does not apply in cases where “the alleged
criminal conduct observed by the covered person or the alleged criminal or tortious
conduct committed by the covered person is the act of transmitting or communicating
the information, record, document or item sought for disclosure.”
S. 1267²³
Where would the privilege apply? S. 1267 would apply the privilege in
any “Federal entity,” which the bill defines to include the executive branch; the
judicial branch; and any “administrative agency of the Federal Government with the
power to issue a subpoena or other compulsory process,” but not the legislative
branch. The privilege provision in the bill would not apply in state courts or other
state entities.
What would be protected from disclosure? S. 1267 would protect
(subject to qualifications discussed below) any testimony and any documents, defined
as “writings, recordings and photographs as defined by Federal Rule of Evidence

1001 (28 U.S.C. App.).”

Who could refuse to disclose? S. 1267 provides that a “covered person”
means “a person engaged in journalism and includes a supervisor, employer, parent,
subsidiary, or affiliate of such covered person.” Journalism is defined as “the
gathering, preparing, collecting, photographing, recording, writing, editing, reporting,
or publishing of news or information that concerns local, national, or international
events or other matters of public interest for dissemination to the public.”
The bill’s privilege also would apply to compelled disclosure from
communications service providers. The privilege would apply to any document,
record, information or other communication that relates to a business transaction
between a communications service provider and a covered person, if that document
or testimony would fall under the privilege when sought from the covered person.
A “communications service provider” would be defined as “any person that transmits
information of the customer’s choosing by electronic means; and ... includes a
telecommunications carrier, an information service provider, an interactive computer

²³ S. 1267 is identical to H.R. 2102 as introduced in the House.

service provider, and an information content provider (as such terms are defined in
the sections 3 and 230 of the Communications Act of 1934 (47 U.S.C. 153, 230)).”
In other words, this provision would allow a covered person’s telephone company or
Internet service provider, for example, to assert a privilege not to disclose the covered
person’s phone or e-mail records.
The third party or federal entity seeking to compel testimony or a document
from a communications service provider would have to give notice to the covered
person who is a party to the business transaction with the communications service
provider. The covered person would be entitled to be heard by the court before the
testimony or disclosure is compelled.
What exceptions would permit disclosure to be compelled? S.
1267’s privilege would be qualified with respect both to the identity of a source and
to other information. A federal entity would not be permitted to compel disclosure
of any testimony or document — that would reveal sources or other information —
unless a court determines by a preponderance of the evidence, after providing notice
and an opportunity to be heard to the covered person, that the entity “has exhausted
all reasonable alternative sources (other than a covered person) of the testimony or
document.”
In addition, “in a criminal investigation or prosecution based on information
obtained from a person other than the covered person,” the court would have to find,
for disclosure to be compelled, that “there are reasonable grounds to believe that a
crime has occurred” and that “the testimony or document sought is essential to the
investigation or prosecution or to the defense against the prosecution.... [I]n a matter
other than a criminal investigation or prosecution, based on information obtained
from a person other than the covered person, the testimony or document sought
[would have to be] essential to the successful completion of the matter.”
To compel disclosure of the identity or of information that could reasonably be
expected to lead to the discovery of the identity of a source, the court would have to
find, in addition to the above items, that disclosure is (A) “necessary to prevent
imminent and actual harm to national security;”; (B) “is necessary to prevent
imminent death or significant bodily harm”; or (C) “disclosure of a source is
necessary to identify a person who has disclosed” a trade secret of significant value,
individually identifiable health information, or nonpublic personal information.
The court must also find “that nondisclosure of the information would be
contrary to the public interest, taking into account both the public interest in
compelling disclosure and the public interest in gathering news and maintaining the
free flow of information.”
S. 2035
S. 2035 is substantially similar to both S. 1267 and H.R. 2102, but differs from
those two in the exceptions it would create to the privilege. Under the exceptions,
the federal entity would not be required to make the initial showing in order to
compel testimony of a covered person. S. 2035 also seeks to more precisely define

what types of information, sources, and work product would be protected by the
privilege.
What circumstances are excepted from the privilege? S. 2035 would
create three situations that would be excepted from the protections the bill would
provide. First, the privilege would not apply to
any information, record, document, or item obtained as the result of the
eyewitness observations of criminal conduct or commitment of criminal or
tortious conduct by the covered person, including any physical evidence or audio
recording of the observed conduct, if a Federal court determines that the party
seeking to compel disclosure has exhausted reasonable efforts to obtain the
information from alternative sources.
However, when “the alleged criminal or tortious conduct is the act of communicating
the documents or information at issue,” this exception to the privilege would not
apply.
S. 2035 would not apply the privilege to “any protected information that is
reasonably necessary to stop, prevent or mitigate a specific case of death; kidnapping;
or substantial bodily harm.”
S. 2035 also would provide an exception for the prevention of terrorist activity
or harm to national security. The privilege would not apply “to any protected
information that a Federal court has found by a preponderance of the evidence would
assist in preventing a specific case of terrorism against the United States; or
significant harm to national security that would outweigh the public interest in
newsgathering and maintaining the free flow of information to citizens.”
What sources are considered confidential? S. 2035 would provide that
only those sources who provide information, records, communication data, or
documents with the promise of confidentiality would be covered by the privilege.
What is protected information? S. 2035 defines protected information as
information identifying a source who provided information under a promise or
agreement of confidentiality made by a covered person as part of engaging in
journalism; or any records, communications data, documents or information that
a covered person obtained or created as part of engaging in journalism; and upon
a promise or agreement that such records, communication data, documents, or
information would be confidential.
On October 4, 2007, the Senate Judiciary Committee approved S. 2035 with
minor amendments, according to the National Journal, and ordered it to be reported
to the full Senate.