Lamar Smith

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, H.R. 2102 presumes that a journalist is entitled to a reporter's privilege unless the government can show a court otherwise. The government can only do this by meeting certain threshold requirements set forth in the bill. After all those requirements are met, the judge must then apply a balancing test. The judge must find that ``the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.'' My motion to recommit provides further guidance to the judge as to what criteria should be considered in weighing that decision. The motion to recommit simply states that the judge may consider the extent of any harm to national security. It does not dictate any result. The manager's amendment partly addresses this issue by creating an additional exception to the privilege that excludes from the privilege leaks of classified information that harm national security in criminal cases. I agree with that idea as far as it goes. This motion to recommit, though, goes further. It allows the judge to consider this factor in any case, not just a criminal case. It allows a judge to consider any leak that harms national security, not just a leak in violation of the laws on classified information. There are many kinds of information that can harm national security. One example is grand jury information. Suppose that the government is conducting a grand jury investigation of a suspected terrorist ring. If a grand juror were to reveal that to a reporter, it might allow the terrorist to escape to strike another day. Another example is information covered by various common law privileges like the attorney/client privilege. Suppose that an attorney knew his client, a former terrorist, was cooperating with authorities to avoid prosecution. If he revealed this to the press, it could reveal to the terrorist's former compatriots that they needed to change their plans. Another example is confidential business information that is protected by contractual relationships. Employees of a computer company might know and reveal without authorization that a certain new chip is coming to the market in a matter of months. This might allow a foreign enemy to stop their research on that type of chip and devote their resources to some other project. The problem is that any of these kinds of information could harm national security. If they do, a judge ought to be able to consider that in deciding what the public interest requires. In short, I think we are going in the same direction, but the manager's amendment does not go far enough. The motion to recommit protects national security against harmful leaks in all cases, not just criminal cases. When national security is threatened by leaks, we must protect ourselves in all cases, not just criminal cases. I urge my colleagues to adopt this motion and protect our national security. Mr. Speaker, I yield back the balance of my time.

Mr. SMITH of Texas. I thank the gentleman from Indiana for his answer to my question. That is much appreciated. Mr. Speaker, I am the last speaker on this side, and I know the chairman of the Judiciary Committee has the right to close. I wonder if he has any additional speakers.

Mr. SMITH of Texas. Mr. Speaker, may I ask how much time remains on each side.

Mr. SMITH of Texas. Mr. Speaker, I offer a motion to recommit.

Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my time. I support the manager's amendment offered by the gentleman from Virginia (Mr. Boucher). The provisions of the amendment do improve the bill by addressing some of the Justice Department's concerns. Despite this, it still does not cure the bill's fundamental flaws. The legislation will still make it impossible to enforce certain criminal laws and will impede national security investigation. While I commend the sponsors of the amendment for trying to address the Justice Department's concern, even if the amendment is adopted, the bill should still be opposed. So I urge Members to support the amendment and oppose the underlying bill. Mr. Speaker, I yield back the balance of my time.

Mr. SMITH of Texas. I am opposed in its current form.

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Pence). (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, let me summarize the objections to this legislation. The White House, the Justice Department, the Acting Director of National Intelligence and many law enforcement officials oppose H.R. 2102 because they believe it diminishes legal rights, public safety and endangers national security. The Department of Justice is concerned that this legislation will impede its efforts to conduct investigations and prosecute criminals. For 200 years, information has flowed freely to the press. Congress need not enact H.R. 2102, when the status quo is working and the legislation's potential harm to our national security is so significant. Our Founders created a legal system where no one is above the law. But if the media shield bill passes, we will be carving out a special exception to that rule for reporters, tabloids and bloggers. This is not what our Founders intended when they created a free press. No one should be above the law, not even the press. We must err on the side of caution and not support legislation that could make it harder to apprehend criminals and terrorists or deter their activities. I urge my colleagues to oppose this legislation. Mr. Speaker, I yield back the balance of my time.

Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes for the purpose of engaging in a colloquy with my friend from Indiana (Mr. Pence). I have a question I would like to ask him. The bill states that the determination as to whether the testimony or document is critical to the underlying matter is to be made ``based on information obtained from a person other than the covered person,'' the covered person being the journalist. There has been some confusion as to what is meant by ``information from the covered person.'' In the Washington Post on October 4, Patrick Fitzgerald, who was the U.S. Attorney in the Scooter Libby case, wrote, ``The bill puzzlingly requires that agents prove that the leak occurred without relying on the newspaper article.'' Is Mr. Fitzgerald right? Does this provision mean that the party seeking the subpoena cannot use the very newspaper article at issue in the lawsuit to show why the reporter's testimony is needed? I yield to the gentleman from Indiana.

Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentleman from Iowa (Mr. King), who is the ranking member of the Immigration Subcommittee of the Judiciary Committee.

Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes. Mr. Speaker, I would like to read for my colleagues an excerpt of a letter we received from the Office of the Director of National Intelligence: ``We are joining the Department of Justice in opposing H.R. 2102, the Free Flow of Information Act of 2007. We share the Department's strong opposition to H.R. 2102 articulated in its letter of July 31, 2007. ``The government must retain the ability to obtain information from the press that would both prevent harm to the United States and its citizens and to identify and bring to justice those who cause such harm. Unfortunately, press reports on U.S. intelligence activities have been a valuable source of intelligence to our adversaries. Former Russian military intelligence Colonel Stanislav Lunev wrote: `I was amazed, and Moscow was very appreciative, at how many times I found very sensitive information in American newspapers. In my view, Americans tend to care more about scooping their competition than about national security, which made my job easier.'' What an indictment. Finally, and I am quoting from the letter: ``The bill, as drafted, would require that identification of the source be necessary to prevent an act of terrorism or other significant and specified harm to the national security. It would not, however, allow the government to compel the identification of a source if it was necessary to identify the perpetrators of a completed act of terrorism or an act that harmed the national security. Similarly, the bill could authorize the government to compel the identification of a source in order to prevent imminent death or bodily harm, but would not allow the government to compel disclosure of a source in order to identify a murderer. ``For these reasons and for the reasons set out in the letter from the Department of Justice, we urge the Congress to reject this bill.'' Mr. Speaker, that is a letter from the Office of the Director of National Intelligence.

Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my distinguished colleague from Oregon (Mr. Walden).

Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my friend and colleague from Texas (Mr. Poe).

Mr. SMITH of Texas. Mr. Speaker, I yield myself 1 minute. Mr. Speaker, I would like to read an excerpt from the Department of Justice's letter in opposition to the bill we are discussing: ``Given the extensive safeguards already in place, the Department strongly opposes H.R. 2102 and similar legislative efforts to provide a `journalist's privilege' that would prevent the disclosure of relevant testimony and evidence critical to the fair disposition of investigations and trials. ``H.R. 2102 would make it virtually impossible to enforce certain Federal criminal laws, particularly those pertaining to the unauthorized disclosure of classified information, and would seriously impede other national security investigations and prosecutions, including terrorism prosecutions. ``H.R. 2102 would undermine national security and other law enforcement investigations by permitting compelled disclosure of a media source only when necessary to prevent a terrorist attack against the United States and only when the bill's other burdensome prerequisites are satisfied.'' But the problem here is that it would not allow us to get to the information after the fact. You could not force a journalist to disclose information, for instance, after a terrorist attack when you want to find out who was involved in that attack. For that reason, we should oppose the bill.

Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to the gentleman from Florida (Mr. Keller), a diligent member of the Judiciary Committee.

Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my friend from North Carolina (Mr. Coble), a distinguished member of the Judiciary Committee and the ranking member of the Intellectual Property Subcommittee of the Judiciary Committee.

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from Indiana, a distinguished member of the Judiciary Committee and one of the original sponsors of the legislation we are debating today. (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SMITH of Texas. Mr. Speaker, before I yield to a colleague, I want to yield myself 1 minute. Mr. Speaker, what I want to do is read an excerpt from the Statement of Administration Policy that might respond to some of the points that have been made. The administration said that if H.R. 2102 were presented to the President in its current form, his senior advisers would recommend that he veto the bill, and here's one of the reasons why: ``The bill would impose an unreasonable and unjustified evidentiary burden on prosecutors seeking to issue a subpoena to a member of the news media, placing authorities in an untenable position. ``In order to satisfy the bill's requirements, prosecutors essentially must prove the existence of specific criminal activity in a hearing before a judge, with notice to the subjects of the investigation, before they will be able to undertake the necessary investigative steps to determine whether a crime has occurred. Thus, in many cases, prosecutors will have to conduct a minitrial before their investigation has concluded, and in some cases, even before their investigation has gotten off the ground.'' Mr. Speaker, I am now happy to yield to the gentleman from Missouri, the minority whip (Mr. Blunt).

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I thank the gentlewoman for her comments, and I yield back the balance of my time.

Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Eshoo), who is the original sponsor of H.R. 743, which would make the Internet tax moratorium permanent. We appreciate her leadership in writing such a bill, and we appreciate her support.

Mr. SMITH of Texas. Mr. Speaker, I am happy to yield 2 minutes to the gentleman from California (Mr. Campbell).

Mr. SMITH of Texas. Mr. Speaker, I yield 10 minutes to the gentleman from Virginia (Mr. Goodlatte) who is a senior member of the Judiciary Committee, ranking member of the Agriculture Committee, chairman of the high-tech working caucus and co-chairman of the Congressional Internet Caucus, as well, in the House.

Mr. SMITH of Texas. Mr. Speaker, how much time remains on each side?

Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I could use my time today to discuss the bill before us because it does some good things, as the gentleman from North Carolina has pointed out. For example, it clarifies a definition of ``Internet access'' to ensure that States do not tax Internet access, including the acquisition of transmission capabilities. But instead, Mr. Speaker, I'm going to talk more about what this bill does not do. This bill does not permanently ban taxes on Internet access and e- commerce. Only by making the ban on Internet access taxes permanent can we give businesses the certainty they need to spend billions of dollars to construct, maintain and update the broadband Internet infrastructure throughout the country. And only by extending the moratorium permanently can we continue to keep the cost of Internet access down so that low-income individuals, those who are most sensitive to cost, can continue to use the great informational tool that is called ``the Internet.'' More than 240 Members have cosponsored bills H.R. 743 and H.R. 1077, which provide for a permanent extension of the Internet Tax Freedom Act. This support is broad and bipartisan. A permanent extension is also consistent with the past actions of the House, which passed a permanent ban in 2003. Hundreds of companies and groups, including AOL, Apple, Americans for Tax Reform, AT&T, Comcast, eBay, Electronics Industry Alliance, Level 3 Communications, the National Association of Manufacturers, the National Cable and Telecommunications Association, the National Taxpayers Union, Sprint/Nextel, Time Warner Communications, T-Mobile, U.S. Chamber of Commerce, U.S. Telecom Association, U.S. Internet Industry Association, Verizon, Yahoo, the Business Software Alliance, and the Hispanic Technology & Telecommunications Partnership, among many, many others, have called for a permanent ban on Internet access taxes; but this bill contains no such provision. At the markup of this bill at the Judiciary Committee, Mr. Goodlatte, the gentleman from Virginia, offered an amendment to extend the moratorium permanently. Even though 21 members of the committee, a majority, cosponsored H.R. 743, the Permanent Internet Tax Freedom Act of 2007, five of the six Democratic cosponsors reversed themselves and voted against the permanent extension. Mr. Speaker, to paraphrase a one-time Presidential candidate, I guess they must have been for permanence before they were against it. After the Democrats defeated that amendment, Mr. Goodlatte offered the next best thing, an 8-year extension of the moratorium. The 8-year amendment subsequently failed on a more or less straight party-line vote as did a similar amendment to extend the moratorium for 6 years. If we are going to have a healthy economy in America, if we are going to continue to create jobs, if we are going to continue to enjoy a high standard of living, if we are going to continue to increase productivity, we have to do everything we can to encourage and help the high-tech industry. To that end, I, along with Republican Leader Boehner, Republican Whip Blunt, Mr. Goodlatte and Mr. Cannon, sent a letter to the majority leader on Friday urging him to bring this bill to the floor under a rule that allowed for a vote on permanence. By denying the 242 Members who cosponsored a permanent ban on Internet taxes, Republicans and Democrats alike, the opportunity to vote for permanence, the Democratic leadership has shown that they oppose a permanent Internet tax moratorium that would help high-tech companies and that they want to leave the door open for taxing the Internet in the future. I hope the American people and high-tech employers are watching today. Mr. Speaker, I reserve the balance of my time.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I yield back the balance of my time.