Budget rider would create Mass. shield law

As the Massachusetts Senate takes up debate this week on the state budget, two Republican lawmakers have proposed an amendment that would create a shield law for reporters in the state. Senate Republican Leader Brian P. Lees and Sen. Scott P. Brown filed the rider, which would provide qualified protection against reporters being compelled to testify.

Following is the text:

Clerk Number: 603

BROWN- REPORTER SHIELD LAW

Messrs. Brown and Lees moved that the bill be amended by inserting, after Section ___, the following new Section:-

“SECTION ____. Notwithstanding and special or general law to the contrary the following will be known as the “Free Flow of Information Act.”

Section 1. Definitions: the following words used in this chapter shall have the following meanings, unless a different meaning is clearly apparent from the language or context, or unless such construction is inconsistent with the manifest intention of the legislature:

Covered Person: (A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that (i) publishes a newpaper, book, magazine, or other periodical; (ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or (iii)_ operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) and employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

Document: The term “document” means writings, recordings, and photographs, records, prepares, or disseminates news or information for such an entity.

State Entity: shall mean an entity or employee of the judicial, legislative, or executive branch of the Federal Government with the power to issue a subpoena or provide other compulsory process.

Third Party: a person other than a covered person.

Section 2. Conditions for Compelled Disclosure.

(a) No state entity may compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under State Law unless a court determines by clear and convincing evidence, after providing notice and an opportunity to be heard to covered person:

(1) 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; and

(2) that

(A) in a criminal investigation or prosecution, based on information obtained from a person other that a covered person (i) there are reasonable grounds to believe that a crime has occurred; and (ii) the testimony or document sought is essential to the investigation, prosecution or defense; or

(B) in 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 is essential to a dispositive issue of substantial importance to that matter.

(b) Limitations on Content of Information. The content of any testimony or document that is compelled under subsection (a) shall, to the extent possible

(1) be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy of such published information; and

(2) be narrowly tailored in subject matter and period of time covered.

Section 3. Commercial or Financial Information. The provisions of Section 2 do not apply to a request by a State entity for any testimonial or document that consists of only commercial or financial information unrelated to newsgathering or news and information dissemination by a covered person.

Section 4. Commercial or Financial Information. The provisions of section 2 do not apply to a request by a State entity for any testimony or document that consists of only commercial or financial information unrelated to newsgathering or news and information dissemination by a covered person.

Section 5. Compelled Disclosure Prohibited. Notwithstanding any provision of section 2, in any proceeding or in connection with any issue arising under State Law, no State entity may compel a covered person to disclose-

the identity of a source of information-

from whom the covered person obtained the information; and

who the covered person believes to be a confidential source; or

any information that could reasonably be expected to lead to the discovery of the identity of such a source.

Section 5. Compelled Disclosure from Third Parties.

(a) Conditions for Compelled Disclosure.- The provisions of sections 2, 3, and 4 shall apply to any testimony or document that a State entity seeks from a third party if such testimony or document consists of any record, information, or other communication tat relates to a business transaction between such third party and a covered person. Such record, information, or other communication includes any telephone record or other record held by a telecommunications service provider, Internet service provider, or operator of an interactive computer service for a business purpose.

(b) Notice and Opportunity Provided to Covered Persons. A court may compel the testimony or disclosure of a document under this section only after the party seeking such a document provides the covered person who is a party to the business transaction described in subsection (a)-

(1) notice of the subpoena or other compulsory request for such testimony of disclosure from the third party not later than the time at which such subpoena or request is issued to the third party; and

(2) an opportunity to be heard before the court before the time at which the testimony or disclosure is compelled.

Section 6. Activities not Constituting a Waiver. The publication or dissemination of any testimony or document (or portion of such testimony or document) sought under section 2 shall not waive the requirements of such section. The publication or dissemination of any testimony or document (or portion of such testimony or document), identity, or information described in section 4 shall not waive the prohibition described in such section.