Free Flow of Information Act of 2007--Motion to Proceed--Resumed

Floor Speech

FREE FLOW OF INFORMATION ACT OF 2007--MOTION TO PROCEED--Resumed -- (Senate - July 29, 2008)

BREAK IN TRANSCRIPT

Mr. SCHUMER. Madam President, I will be brief. I know Senator Grassley has been waiting as well. I will not speak for very long.

I rise to speak about S. 2035, the Free Flow of Information Act, a bill that Senator Specter and I have spent a lot of time on, worked on, and is cosponsored by many in the House and notably Senators DODD and LUGAR who had a previous bill, as well as, of course, Senator Leahy who led the charge on so many different issues and has been very helpful in us moving this legislation forward.

I am going to speak tomorrow when we address the bill, but I wanted to let my colleagues know of a substitute amendment that Senator Specter, I, and others will offer because it will modify the bill and meet some of the objections.

First let me say the bill is very much needed. We have to find the right balance between the free flow of information and the ability of reporters to get that information from those in Government and, at the same time, not be so far in that direction that we allow people to either break the law or harm the security of the United States.

This has been much more difficult than it appears to achieve, but we are very close. The bill codifies and standardizes existing tests used by Federal courts so that journalists, say, in Illinois are not subject to different treatment than journalists in California.

It certainly allows whistleblowers to be protected when they tell somebody about something untoward. We certainly don't want, if a test is being fixed in the FDA because a drug company wants it, to prevent some public servant in the Government from letting a reporter know to prevent harm. But at the same time, there is no absolute privilege and there are exceptions in terms of harming national security, acts of terrorism, and other matters, such as kidnaping or murder.

Again, I will talk about this bill at some length tomorrow. But I do want to go over some of the changes we have made so my colleagues are aware of them before we vote.

As I said, Senator Specter and I have put together a substitute which if we adopt the motion to proceed--and I hope we will--we will immediately offer, and that will be the base bill we will discuss. Let me talk about the changes made.

First, the intelligence community had concern that it would be too difficult to prosecute leaks of classified information. The new bill moves consideration of leaks of classified information from section 2 of the bill to section 5, and that removes two major hurdles for Federal prosecutors.

Under the new law, prosecutors will not have to prove any longer that they have exhausted all options for finding the information or that the information is essential to their investigation. These hurdles still remain in the Department of Justice internal guidelines, but the bill is not as strict in that regard.

The bill also no longer requires that the person who leaked the information was authorized to have it.

This substitute clarifies that the act will have zero impact on intelligence gathering under the Foreign Intelligence Surveillance Act. This bill does not affect FISA.

Third, the substitute explicitly provides that sensitive Government information will not be disclosed in open court. There was worry that under a whistleblower law, that might happen. We make it clear that security has to come first, but there also has to be balance in the test.

Four, the definition of a covered person--and this has been one of two areas of some controversy--has been narrowed to ensure that it protects only legitimate journalists, first used in the Second Circuit case of von Bulow v. von Bulow to determine who qualifies as a covered person. Someone who blogs occasionally is not going to get the protection here. Of course, someone on a blog who is a regular journalist but happens to use the blog as a medium will be protected. And that is how it ought to be.

Five, the substitute creates an expedited appeals process ensuring that litigation regarding whether the protection applies will be resolved as quickly as possible. In section 8, we expedite the appeals process.

These are the changes made. They make the bill better. The bill has the support of the journalistic community. It has the support of 41 sitting States attorneys general, both Democrats and Republicans. It is one of those rare bipartisan moments. It has the support of Senator Obama and Senator McCain and, of course, passed out of the Judiciary Committee 15 to 4. A similar bill passed out of the House by 398 to 21 and, obviously, it has been endorsed by 100 newspapers. That is easy to say, but in this town both the Washington Post, a more liberal paper, and the Washington Times, a more conservative paper, have endorsed it.

This bill has taken lots of time and lots of work to achieve a careful balance. This is a rare moment, praise God, a broad consensus, and I hope we can move this bill forward tomorrow.

Madam President, I will speak at greater length tomorrow when we are on the bill, but I wanted to let my colleagues know the substitute changes which we will publish in the Record this evening so people will have a chance to look at it.

I yield the floor so that my colleague from Iowa can speak.

Source