The Senate bill

From the Summer 2006 issue of The News Media & The Law, page 5.

• Section 4 defines the scope of the privilege when a subpoena has been issued by federal prosecutors in criminal proceedings. When a journalist has gathered information under a promise of confidentiality, the privilege can only be overcome when the prosecutors show that, among other things, alternative sources have been exhausted, and nondisclosure would be “contrary to the public interest” — which is determined by considering “both the public interest in compelling disclosure and the public interest in newsgathering and maintaining a free flow of information to citizens.”

• Section 5 provides a similar privilege when a subpoena has been issued by a defendant in a criminal proceeding, but includes consideration of the defendant’s interest in a fair trial.

• Section 6 defines the privilege in civil cases, which is similar to the criminal context.

• Section 7 creates an “eyewitness” exception which would allow a subpoena when the journalist is a witness to a crime or is engaged in a criminal act or tortious conduct — acts that violate a person’s rights for which they could sue — but notably first requires exhaustion of alternative sources and disallows this exception when the illegal act witnessed is the revealing of the documents or information at issue.

• Section 8 creates an exception to the privilege when the information is “reasonably necessary to stop or prevent reasonably certain (i) death or (ii) substantial bodily harm.”

• Section 9 creates a national security exception, allowing the privilege to be overcome when disclosure “(i) is necessary to prevent an act of terrorism or to prevent significant and actual harm to the national security, and (ii) the value of the information that would be disclosed clearly outweighs the harm to the public interest and the free flow of information that would be caused by compelling the disclosure.” A second provision related to leaks of classified information allows the privilege to be overcome when the disclosure has seriously damaged the national security, alternative sources have been exhausted, and the harm caused by the disclosure “clearly outweighs the value to the public of the disclosed information.”