This is simply an Addendum to the Previously Posted Article to give you a peek into what's "bubbling under the surface" of Acts and Bills in Congress, what's happening with TPP and more that will affect the very nature of your Internet freedoms, security, privacy and choices. I will be adding more to this, including available alternatives, in the coming days. Share this data, we're being distracted, and this WILL impact more of us in more ways, than most of us understand. If you have ven technical questions regarding this, I WILL take the time to gather that information for you, and of course, if you have experiences or data to share, we'll all be the more informed for it.
Newsvine is about Citizen Journalists sharing, discussing and debating issues of the day. We "Viners" value that freedom. All this is about a sneaky effort to curtail all this and more.
James Tracy defined this issue best[more: http://venturacountyteaparty.ning.com/profiles/blogs/free-flow-of-information-act-targets-independent-journalism?xg_source=activity]:
"The fact that the US Senate is now defining what a journalist actually is sets a dangerous precedent threatening the present marketplace of ideas that in recent history has been greatly expanded by the internet.
According to the text of an amendment sponsored by Senators Diane Feinstein and Dick Durbin to the proposed “Free Flow of Information Act” (PDF) that passed the Senate Judiciary Committee on September 12, only salaried journalists will be given the free press protections guaranteed to all US citizens by the Constitution.
Under such a law presumably only the news reporters and analysts employed by moderate-to-substantial revenue-generating news entities are regarded as “legitimate” journalists. This is because the Feinstein-Durbin amendment’s wording is especially vague on exactly what type of news organization the writer needs to be affiliated with to be able to comment and report freely.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
If such legislation achieves passage free speech will be diminished as thousands of independent journalists conducting valid research into a variety of malfeasance and corruption by major institutions may be open to government subpoenas and legal action by those they investigate and report on. Further, such a law paves the way for Congress to formally license journalists, which is close to happening in the United Kingdom.
Secondly, this measure involves more than an oblique targeting of alternative news media and the extremely important work they do. As their coverage and analysis of incidents such as the Boston Marathon bombings and the unfolding Syrian crisis suggests, independent news websites have played significant roles in helping the public to better comprehend the underlying political dynamics and import of such events."
Dell Cameron [More: http://www.vice.com/read/the-new-media-shield-law-only-shields-corporate-media] adds:
"Independent journalist Marcy Wheeler referred to a particular section of the Justice Department's review as the “WikiLeaks Exception,” which states: legal protections are “not intended to include persons and entities that simply make information available.” Individuals that simply release documents in their original form—the Justice Department insists—are not journalists because they are not using “editorial skills to turn raw materials into a distinct work.”
Likewise, Section 5 of the Free Flow of Information Act removes protections for WikiLeaks and organizations like it, stating that any “covered persons” revealing documents that may assist the federal government in “preventing or mitigating... acts that are reasonably likely to cause significant and articulable harm to national security” may be subject to “a subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information.” Should this bill be passed by Congress, this section alone is enough incentive for President Obama to sign it into law. The implications of this language for journalists like Glenn Greenwald, who revealed the broad domestic-surveillance policies of the NSA, are frightfully apparent.
The Freedom of the Press Foundation and other independent journalists have outlined a clear goal for Congress to pursue: pass a media shield law that defines journalism as an action, not a profession. You cannot protect the First Amendment and ensure that America continues to have a free press by simply narrowing the definition of what a free press is. As Marcy Wheeler put it, “If the ultimate idea is to protect news-gathering activities, then why not establish what those activities are and then actually protect them, regardless of whether they are tied to a certain kind of institution?”
Harvard Law School professor Yochai Benkler has argued in defense of the kind of journalism that is intentionally unprotected in the "Free Flow of Information Act.” A week after taking the stand during Bradley Manning's trial, Benkler pointed to several past instances where whistleblowers had committed acts of journalism. One example was Dr. Daniel Ellsberg, the former US military analyst who leaked the Pentagon Papers in 1971, revealing the misconduct of several White House administrations, particularly Lyndon Johnson's office during the Vietnam War. In a comment Benkler wrote for the Guardian, “Leak-based journalism is not the be-all-and-end-all of journalism. But ever since the Pentagon Papers, it has been a fraught but critical part of our constitutional checks in national defense. Nothing makes this clearer than the emerging bipartisan coalition of legislators seeking a basic reassessment of NSA surveillance and FISA oversight following Edward Snowden's leaks.“
As it stands, the introduction of any media shield law in Congress is not intended to protect journalists or prevent the disclosure of classified information that might place American lives in danger. It is meant to revoke the rights of journalists who have revealed threats to the American public from within their own government. They are intended to curtail the rights of independent journalists who won't oblige the White House with a sit-down before publishing vital news during a Presidential election. In the past, the industrialized news media has expressed support for this kind of law, showing their willingness to sacrifice rights of everyone but themselves. Already, organizations such as the National Press Photographers Association and the American Society of News Editors have issued statements encouraging their members to support the bill.
If the Justice Department can simply imprison a few journalists like James Risen, perhaps even the public will call for the passage of a new media shield law—one void of dangerous terms like “compelled disclosure,” “limitations on content,” and “allegedly unlawful.”
Here's the Law S 987 IS, with sections of importance highlighted, as well as key definitions and additional data added:
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.
IN THE SENATE OF THE UNITED STATES
May 16, 2013
Mr. SCHUMER (for himself and Mr. GRAHAM) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
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.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Free Flow of Information Act of 2013’.
SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.
(a) Conditions for Compelled Disclosure- In any proceeding or in connection with any issue arising under Federal law, a Federal entity may not compel a covered person to comply with a subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information, unless a Federal court in the jurisdiction where the subpoena, court order, or other compulsory legal process has been or would be issued determines, after providing notice and an opportunity to be heard to such covered person--
(1) that the party seeking to compel disclosure of the protected information has exhausted all reasonable alternative sources (other than a covered person) of the protected information; and
(A) in a criminal investigation or prosecution--
(i) if the party seeking to compel disclosure is the Federal Government, based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that a crime has occurred;
(ii) based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution;
(iii) the Attorney General certifies that the decision to request compelled disclosure was made in a manner consistent with section 50.10 of title 28, Code of Federal Regulations, if compelled disclosure is sought by a member of the Department of Justice in circumstances governed by section 50.10 of title 28, Code of Federal Regulations(*3); and
(iv) the covered person has not established by clear and convincing evidence that disclosure of the protected 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 and the public interest in compelling disclosure (including the extent of any harm to national security); or
(B) in a matter other than a criminal investigation or prosecution, based on public information or information obtained from a source other than the covered person--
(i) the protected information sought is essential to the resolution of the matter; and
(ii) the party seeking to compel disclosure of the protected information has established 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.
(b) Limitations on Content of Information- A subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information under subsection (a) shall, to the extent possible, be narrowly tailored in purpose, subject matter, and period of time covered so as to avoid compelling disclosure of peripheral, nonessential, or speculative information.
SEC. 3. EXCEPTION RELATING TO CRIMINAL CONDUCT.
(a) In General- Section 2 shall not apply to any information, record, document, or item obtained as the result of the eyewitness observations of, or obtained during the course of, alleged criminal conduct by the covered person, including any physical evidence or visual or audio recording of the conduct.
(b) Exception- This section shall not apply, and, subject to sections 4 and 5, section 2 shall apply, if the alleged criminal conduct is the act of communicating the documents or information at issue.
SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, SUBSTANTIAL BODILY INJURY, SEX OFFENSES AGAINST MINORS, OR INCAPACITATION OR DESTRUCTION OF CRITICAL INFRASTRUCTURE.
Section 2 shall not apply to any protected information that is reasonably necessary to stop, prevent, or mitigate a specific case of--
(3) substantial bodily harm;
(4) conduct that constitutes a criminal offense that is a specified offense against a minor (as those terms are defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911)), or an attempt or conspiracy to commit such a criminal offense; or
(5) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the USA PATRIOT Act (42 U.S.C. 5195c(e))).
SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE NATIONAL SECURITY.
(a) In General- Section 2 shall not apply to any protected information if--
(1) the party seeking to compel disclosure is the Federal Government; and
(2)(A) in a criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information, the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would materially assist the Federal Government in preventing or mitigating--
(i) an act of terrorism; or
(ii) other acts that are reasonably likely to cause significant and articulable harm to national security; or
(B) in any other criminal investigation or prosecution, the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would materially assist the Federal Government in preventing, mitigating, or identifying the perpetrator of--
(i) an act of terrorism; or
(ii) other acts that have caused or are reasonably likely to cause significant and articulable harm to national security.
(b) Deference- In assessing the existence or extent of the harm described in subsection (a), a Federal court shall give appropriate deference to a specific factual showing submitted to the court by the head of any executive branch agency or department concerned.
(c) Relationship to Section 2- Subsection (a) shall not apply, and, subject to sections 3 and 4, section 2 shall apply, to any criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information other than one in which the protected information is sought by the Federal Government to prevent or mitigate the harm specified in subsection (a)(2)(A). In considering the extent of any harm to national security when applying section 2 to such cases, a Federal court shall give appropriate deference to any specific factual showing submitted to the court by the head of any executive branch agency or department concerned.
(d) Subsequent Unlawful Disclosure- The potential for a subsequent unlawful disclosure of information by the source sought to be identified shall not, by itself and without any showing of additional facts beyond such potential disclosure, be sufficient to establish that compelled disclosure of the protected information would materially assist the Federal Government in preventing or mitigating--
(1) an act of terrorism; or
(2) other acts that are reasonably likely to cause significant and articulable harm to national security.
SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.
(a) Conditions for Compelled Disclosure-
(1) IN GENERAL- Except as provided in paragraph (2), if any document or other information from the account of a person who is known to be, or reasonably likely to be, a covered person is sought from a communications service provider, sections 2 through 5 shall apply in the same manner that such sections apply to any document or other information sought from a covered person.
(2) EXCEPTION- If any document or other information from the account of a person who is known to be, or reasonably likely to be, a covered person is sought from a communications service provider under section 2709 of title 18, United States Code, the provisions of sections 2 through 5 governing criminal investigations and prosecutions shall apply in the same manner that such sections apply to any document or other information sought from a covered person in the course of a criminal investigation or prosecution, except that clauses (i) and (iii) of section 2(a)(2)(A) and the phrase ‘particularly with reference to directly establishing guilt or innocence’ in section 2(a)(2)(A)(ii) shall not apply.
(b) Notice and Opportunity Provided to Covered Persons- A Federal court may compel the disclosure of a document or other information described in this section only after the covered person from whose account the document or other information is sought has been given--
(1) notice from the party seeking the document or other information through a subpoena or other compulsory request, not later than the time at which such subpoena or request is issued to the communications service provider; and
(2) an opportunity to be heard before the court before compelling testimony or the disclosure of a document.
(c) Exception to Notice Requirement- Notice under subsection (b)(1) may be delayed for not more than 45 days if the Federal court involved determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation, a national security investigation, or intelligence gathering, or that exigent circumstances exist. This period may be extended by the court for an additional period of not more than 45 days each time the court makes such a determination.
(d) Notice to Communications Service Provider- In all cases in which notice is required to be provided to the covered person under this section, a copy of such notice shall be provided simultaneously to the communications service provider from whom disclosure is sought. Once it has received such notice, the communications service provider shall not comply with the request for disclosure unless and until disclosure is either ordered by the court or authorized in writing by the covered person.
SEC. 7. SOURCES AND WORK PRODUCT PRODUCED WITHOUT PROMISE OR AGREEMENT OF CONFIDENTIALITY.
Nothing in this Act shall supersede, dilute, or preclude any law or court decision compelling or not compelling disclosure by a covered person or communications service provider of--
(1) information identifying a source who provided information without a promise or agreement of confidentiality made by the covered person as part of engaging in journalism; or
(2) 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.
SEC. 8. PROCEDURES FOR REVIEW AND APPEAL.
(a) Conditions for Ex Parte Review or Submissions Under Seal- With regard to any determination made by a Federal court under this Act, upon a showing of good cause, that Federal court may receive and consider submissions from the parties in camera or under seal, and if the court determines it is necessary, ex parte.
(b) Contempt of Court- With regard to any determination made by a Federal court under this Act, a Federal court may find a covered person to be in civil or criminal contempt if the covered person fails to comply with an order of a Federal court compelling disclosure of protected information.
(c) To Provide for Timely Determination- With regard to any determination to be made by a Federal court under this Act, that Federal court, to the extent practicable, shall make that determination not later than 30 days after the date of receiving a motion requesting the court make that determination.
(d) Expedited Appeal Process-
(1) IN GENERAL- The courts of appeal shall have jurisdiction--
(A) of appeals by a Federal entity or covered person of an interlocutory order of a Federal court under this Act; and
(B) in an appeal of a final decision of a Federal court by a Federal entity or covered person, to review any determination of a Federal court under this Act.
(2) EXPEDITION OF APPEALS- It shall be the duty of a Federal court to which an appeal is made under this subsection to advance on the docket and to expedite to the greatest possible extent the disposition of that appeal.
SEC. 9. RULE OF CONSTRUCTION.
Nothing in this Act may be construed to--
(1) preempt any law or claim relating to defamation, slander, or libel;
(2) modify the requirements of section 552a of title 5, United States Code, or Federal laws or rules relating to grand jury secrecy (except that this Act shall apply in any proceeding and in connection with any issue arising under that section or the Federal laws or rules relating to grand jury secrecy);
(3) 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.); or
(4) preclude voluntary disclosure of information to a Federal entity in a situation that is not governed by this Act.
SEC. 10. AUDIT.
(a) In General- The Inspector General of the Department of Justice shall perform a comprehensive audit of the use of this Act during the period beginning on the date of enactment of this Act and ending on December 31, 2016. The audit shall include an examination of each instance in which a court failed to compel the disclosure of protected information under this Act, and whether this Act has created any procedural impediments that have had a detrimental operational impact on the activities of the Federal Bureau of Investigation.
(b) Report- Not later than June 30, 2017, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under subsection (a).
(c) Review- Not later than 30 days before the submission of the report under subsection (b), the Inspector General of the Department of Justice shall provide the report to the Attorney General and the Director of National Intelligence. The Attorney General or the Director of National Intelligence may provide such comments to be included in the report submitted under subsection (b) as the Attorney General or the Director of National Intelligence may consider necessary.
(d) Form- The report submitted under subsection (b) and any comments included under subsection (c) shall be in unclassified form, but may include a classified annex.
SEC. 11. DEFINITIONS.
In this Act:
(1) COMMUNICATIONS SERVICE PROVIDER- The term ‘communications service provider’--
(A) means any person that transmits information of the customer’s choosing by electronic means; and
(B) includes a telecommunications carrier, an information service provider, an interactive computer service provider, and an information content provider (as such terms are defined in section 3 or 230 of the Communications Act of 1934 (47 U.S.C. 153 and 230)*1).
(2) COVERED PERSON- The term ‘covered person’--
(A) means a person who--
(i) 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, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by--
(I) conducting interviews;
(II) making direct observation of events; or
(III) 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;
(ii) has such intent at the inception of the process of gathering the news or information sought; and
(iii) obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means;
(B) includes a supervisor, employer, parent company, subsidiary, or affiliate of a person described in subparagraph (A); and
(C) does not include any person who is or is reasonably likely to be--
(i) a foreign power or an agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);
(ii) a member or affiliate of a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a));
(iii) designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order No. 13224 (50 U.S.C. 1701);
(iv) a specially designated terrorist, as that term is defined in section 595.311 of title 31, Code of Federal Regulations (or any successor thereto);
(v) a terrorist organization, as that term is defined in section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II));
(vi) committing or attempting to commit the crime of terrorism, as that offense is defined in section 2331(5) or 2332b(g)(5) of title 18, United States Code;
(vii) committing or attempting the crime of providing material support, as that term is defined in section 2339A(b)(1) of title 18, United States Code, to a terrorist organization; or
(viii) aiding, abetting, or conspiring in illegal activity with a person or organization defined in clauses (i) through (vii).
(3) DOCUMENT- The term ‘document’ means writings, recordings, and photographs, as those terms are defined by rule 1001 of the Federal Rules of Evidence (28 U.S.C. App.)(*2).
(4) FEDERAL ENTITY- The term ‘Federal entity’ means 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.
(5) PROPERLY CLASSIFIED INFORMATION- The term ‘properly classified information’ means information that is classified in accordance with any applicable Executive orders, statutes, or regulations regarding classification of information.
(6) PROTECTED INFORMATION- The term ‘protected information’ means--
(A) 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
(B) any records, contents of a communication, documents, or information that a covered person obtained or created--
(i) as part of engaging in journalism; and
(ii) upon a promise or agreement that such records, contents of a communication, documents, or information would be confidential.
(*1) 47 USC § 230 - Protection for private blocking and screening of offensive material
As used in this section:
The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3) Information content provider
The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4) Access software provider
The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(*2) RULE 1001. DEFINITIONS THAT APPLY TO THIS ARTICLE
In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form.
(d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.
(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1945; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
In an earlier day, when discovery and other related procedures were strictly limited, the misleading named “best evidence rule” afforded substantial guarantees against inaccuracies and fraud by its insistence upon production of original documents. The great enlargement of the scope of discovery and related procedures in recent times has measurably reduced the need for the rule. Nevertheless important areas of usefulness persist: discovery of documents outside the jurisdiction may require substantial outlay of time and money; the unanticipated document may not practically be discoverable; criminal cases have built-in limitations on discovery. Cleary and Strong, The Best Evidence Rule: An Evaluation in Context, 51 Iowa L.Rev. 825 (1966).
Paragraph (1). Traditionally the rule requiring the original centered upon accumulations of data and expressions affecting legal relations set forth in words and figures. This meant that the rule was one essentially related to writings. Present day techniques have expanded methods of storing data, yet the essential form which the information ultimately assumes for usable purposes is words and figures. Hence the considerations underlying the rule dictate its expansion to include computers, photographic systems, and other modern developments.
Paragraph (3). In most instances, what is an original will be self-evident and further refinement will be unnecessary. However, in some instances particularized definition is required. A carbon copy of a contract executed in duplicate becomes an original, as does a sales ticket carbon copy given to a customer. While strictly speaking the original of a photograph might be thought to be only the negative, practicality and common usage require that any print from the negative be regarded as an original. Similarly, practicality and usage confer the status of original upon any computer printout. Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965).
Paragraph (4). The definition describes “copies” produced by methods possessing an accuracy which virtually eliminates the possibility of error. Copies thus produced are given the status of originals in large measure by Rule 1003, infra. Copies subsequently produced manually, whether handwritten or typed, are not within the definition. It should be noted that what is an original for some purposes may be a duplicate for others. Thus a bank's microfilm record of checks cleared is the original as a record. However, a print offered as a copy of a check whose contents are in controversy is a duplicate. This result is substantially consistent with 28 U.S.C. §1732(b). Compare 26 U.S.C. §7513(c), giving full status as originals to photographic reproductions of tax returns and other documents, made by authority of the Secretary of the Treasury, and 44 U.S.C. §399(a), giving original status to photographic copies in the National Archives.
Notes of Committee on the Judiciary, House Report No. 93–650
The Committee amended this Rule expressly to include “video tapes” in the definition of “photographs.”
Committee Notes on Rules—2011 Amendment
The language of Rule 1001 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
(*3) § 50.10 Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and the interrogation, indictment, or arrest of, members of the news media.
- Effective: Tuesday, November 01, 2011
Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function. In balancing the concern that the Department of Justice has for the work of the news media and the Department's obligation to the fair administration of justice, the following guidelines shall be adhered to by all members of the Department in all cases
(a) 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 the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.
(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.
(c) Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. These negotiations should attempt to accommodate the interests of the trial or grand jury with the interests of the media. Where the nature of the investigation permits, the government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the media.
(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.
(e) No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General: Provided, That, if a member of the news media with whom negotiations are conducted under paragraph (c) of this section expressly agrees to provide the material sought, and if that material has already been published or broadcast, the United States Attorney or the responsible Assistant Attorney General, after having been personally satisfied that the requirements of this section have been met, may authorize issuance of the subpoena and shall thereafter submit to the Office of Public Affairs a report detailing the circumstances surrounding the issuance of the subpoena.
(f) In requesting the Attorney General's authorization for a subpoena to a member of the news media, the following principles will apply:
(1) In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation—particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
(2) In civil cases there should be reasonable grounds, based on nonmedia sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
(3) The government should have unsuccessfully attempted to obtain the information from alternative nonmedia sources.
(4) The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.
(5) Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment.
(6) Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.
(g) In requesting the Attorney General's authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply:
(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.
(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.
(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days.
(4) Any information obtained as a result of a subpoena issued for telephone toll records shall be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes.
(h) No member of the Department shall subject a member of the news media to questioning as to any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General: Provided, however, That where exigent circumstances preclude prior approval, the requirements of paragraph (l) of this section shall be observed.
(i) A member of the Department shall secure the express authority of the Attorney General before a warrant for an arrest is sought, and whenever possible before an arrest not requiring a warrant, of a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media.
(j) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General.
(k) In requesting the Attorney General's authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking a bill of indictment or to file an information against, a member of the news media for an offense which he is suspected of having committed during the course of, or arising out of, the coverage or investigation of a news story, or committed while engaged in the performance of his official duties as a member of the news media, a member of the Department shall state all facts necessary for determination of the issues by the Attorney General. A copy of the request shall be sent to the Director of Public Affairs.
(l) When an arrest or questioning of a member of the news media is necessary before prior authorization of the Attorney General can be obtained, notification of the arrest or questioning, the circumstances demonstrating that an exception to the requirement of prior authorization existed, and a statement containing the information that would have been given in requesting prior authorization, shall be communicated immediately to the Attorney General and to the Director of Public Affairs.
(m) In light of the intent of this section to protect freedom of the press, news gathering functions, and news media sources, this policy statement does not apply to demands for purely commercial or financial information unrelated to the news gathering function.
(n) Failure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action. The principles set forth in this section are not intended to create or recognize any legally enforceable right in any person.
[Order No. 916–80, 45 FR 76436, Nov. 19, 1980]
Trans Pacific Partnership Agreement
What is the Trans-Pacific Partnership Agreement (TPP)?
The Trans-Pacific Partnership (TPP) is a secretive, multi-national trade agreement that threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement. The main problems are two-fold:
(1) IP chapter: Leaked draft texts of the agreement show that the IP chapter would have extensive negative ramifications for users’ freedom of speech, right to privacy and due process, and hinder peoples' abilities to innovate.
(2) Lack of transparency: The entire process has shut out multi-stakeholder participation and is shrouded in secrecy.
The twelve nations currently negotiating the TPP are the US, Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. The TPP contains a chapter on intellectual property covering copyright, trademarks, patents and perhaps, geographical indications. Since the draft text of the agreement has never been offically released to the public, we know from leaked documents, such as the February 2011 draft US TPP IP Rights Chapter [PDF], that US negotiators are pushing for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement(ACTA).
The TPP Will Rewrite Global Rules on Intellectual Property Enforcement
All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act[DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector. The recently leaked US-proposed IP chapter also includes provisions that appear to go beyond current US law.
The leaked US IP chapter includes many detailed requirements that are more restrictive than current international standards, and would require significant changes to other countries’ copyright laws. These include obligations for countries to:
- Place Greater Liability on Internet Intermediaries: The TPP would force the adoption of the US DMCA Internet intermediaries copyright safe harbor regime in its entirety. For example, this would require Chile to rewrite its forward-looking 2010 copyright law that currently establishes a judicial notice-and-takedown regime, which provides greater protection to Internet users’ expression and privacy than the DMCA.
- Regulate Temporary Copies: Treat temporary reproductions of copyrighted works without copyright holders' authorization as copyright infringement. The language reveals a profound disconnect with the reality of the modern computer, as all routine computer functions rely upon the regular creation of temporary copies of programs and files. As drafted, the related provision creates chilling effects not just on how we behave online, but also on the basic ability of people and companies to use and create on the Web.
- Expand Copyright Terms: Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TPP could extend copyright term protections from life of the author + 50 years, to Life + 70 years for works created by individuals, and either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).
- Enact a "Three-Step Test" Language That Puts Restrictions on Fair Use: The United States Trade Representative (USTR) is putting fair use at risk with restrictive language in the TPP's IP chapter. US and Australia have proposed very restrictive text, while other countries such as Chile, New Zealand, and Malaysia, have proposed more flexible, user-friendly terms.
- Escalate Protections for Digital Locks: It will compel signatory nations to enact laws banning circumvention ofdigital locks (technological protection measures or TPMs)[PDF] that mirror the DMCA and treat violation of the TPM provisions as a separate offense even when no copyright infringement is involved. This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law, as well as override Australia’s carefully-crafted 2007 TPM regime exclusions for region-coding on movies on DVDs, videogames, and players, and for embedded software in devices that restrict access to goods and services for the device—a thoughtful effort by Australian