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Free Flow of Information Act of 2007

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Date:
Location: Washington, DC

FREE FLOW OF INFORMATION ACT OF 2007 -- (House of Representatives - October 16, 2007)

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Mr. UDALL of Colorado. Mr. Speaker, I support this legislation and urge its passage.

The bill is intended to provide journalists with a limited, qualified shield against efforts by prosecutors or other officials to compel public disclosure of the identities of whistleblowers or other sources of information.

Like 48 other States (and the District of Columbia), Colorado has already provided a similar protection for journalists, but of course that State law does not apply in Federal cases--for that a Federal statute is required, which is the purpose of this legislation.

And while I recognize that the Justice Department thinks no such law is needed--their view is that their own guidelines adequately deal with the subject--I think our experience in Colorado shows that it is possible to provide the assured protection that comes with a statutory shield without compromising the investigation of wrongdoing or the vigorous prosecution of crime.

I think this legislation does a good job of achieving a similar balance between protection for investigative journalists and their sources while maintaining the ability of the government to protect national security and conduct effective law enforcement.

Under the bill, journalists would be required to testify if a judge finds that a prosecutor, criminal defendant or civil litigant has shown by a preponderance of the evidence that an applicable test for compelled disclosure has been met.

For a prosecutor, that means showing that he or she had exhausted alternative sources before demanding information, that the sought-after material was relevant and critical to proving a case, and that the public interest in requiring disclosure would outweigh the public interest in news gathering.

The bill includes special rules for cases involving leaks of classified information or involving a journalist's being an eye witness to a crime.

The bill will enable federal law enforcement authorities to obtain an order compelling disclosure of the identity of a source in the course of an investigation of a leak of properly classified information. It also provides that disclosure of a leaker's identity can be compelled whenever the leak has caused or will cause ``significant and articulable harm to the national security.''

And the bill also permits law enforcement to obtain an order compelling disclosure of documents and information obtained as the result of eyewitness observations by journalists of alleged criminal or tortious conduct, as well as cases involving alleged criminal conduct by journalists themselves.

And, in addition to provisions designed to guard against impairing efforts to prevent acts of terrorism, threats to national security, and death or bodily harm to members of the public, there are similar provisions to guard and make sure the legislation will not thwart efforts to identify those who disclose significant trade secrets or certain financial or medical information in violation of current law.

Mr. Speaker, the need for this legislation was well expressed by former Solicitor General Theodore B. Olsen in an article published in the October 4th edition of the Washington Post.

In that article, Mr. Olsen said:

..... journalists reporting on high-profile controversies cannot function effectively without offering some measure of confidentiality to their sources. Their ability to do so yields substantial benefits to the public in the form of stories that might otherwise never be written about corruption and abuse of power. A person with information about wrongdoing is often vulnerable to retaliation if exposed ..... Yet it has become almost routine for journalists to be slapped with federal subpoenas seeking the identity of their sources.

Reporters do not expect to be above the law. But they should receive some protection so they can perform their public service in ensuring the free flow of information and exposing improper conduct without risking jail sentences.

The lack of federal protection makes for an especially strange state of affairs because the Justice Department has had internal standards providing protection to journalists and their sources for 35 years, and Special Counsel Patrick J. Fitzgerald claimed to be adhering to those standards when he subpoenaed reporters in the Plame affair. Thus, as Judge Robert Sack of the U.S. Court of Appeals for the 2nd Circuit has noted, the only real question is whether federal courts should be given some supervisory authority to ensure that prosecutors have, in fact, met governing standards before forcing reporters to testify. The answer seems obvious: yes.

The District and the 49 states with shield laws have experienced no diminution of law enforcement efforts as a result of those laws. The legislation would not give reporters special license beyond the type of common-sense protection we already accord to communications between lawyers and clients, between spouses and in other contexts where we believe some degree of confidentiality furthers societal goals.

This legislation is well balanced and long overdue, and it should be enacted.

I agree with Mr. Olson, and I urge all our colleagues to join me in voting for this bill.

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