[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2471 Reported in Senate (RS)]

                                                       Calendar No. 556
112th CONGRESS
  2d Session
                                H. R. 2471


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 7, 2011

  Received; read twice and referred to the Committee on the Judiciary

                           November 29, 2012

 Reported by Mr. Leahy, with an amendment and an amendment to the title
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 AN ACT


 
To amend section 2710 of title 18, United States Code, to clarify that 
a video tape service provider may obtain a consumer's informed, written 
 consent on an ongoing basis and that consent may be obtained through 
                             the Internet.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. AMENDMENT.</DELETED>

<DELETED>    Section 2710(b)(2) of title 18, United States Code, is 
amended by striking subparagraph (B) and inserting the 
following:</DELETED>
        <DELETED>    ``(B) to any person with the informed, written 
        consent (including through an electronic means using the 
        Internet) in a form distinct and separate from any form setting 
        forth other legal or financial obligations of the consumer 
        given at one or both of the following times--</DELETED>
                <DELETED>    ``(i) the time the disclosure is sought; 
                and</DELETED>
                <DELETED>    ``(ii) in advance for a set period of time 
                or until consent is withdrawn by such 
                consumer;''.</DELETED>

                   TITLE I--VIDEO PRIVACY PROTECTION

SEC. 101. SHORT TITLE .

    This title may be cited as the ``Video Privacy Protection Act 
Amendments Act of 2012''.

SEC. 102. VIDEO PRIVACY PROTECTION ACT AMENDMENT.

    Section 2710(b)(2) of title 18, United States Code, is amended by 
striking subparagraph (B) and inserting the following:
            ``(B) to any person with the informed, written consent 
        (including through an electronic means using the Internet) of 
        the consumer that--
                    ``(i) is in a form distinct and separate from any 
                form setting forth other legal or financial obligations 
                of the consumer;
                    ``(ii) at the election of the consumer--
                            ``(I) is given at time the disclosure is 
                        sought; or
                            ``(II) is given in advance for a set period 
                        of time, not to exceed 2 years or until consent 
                        is withdrawn by the consumer, which ever is 
                        sooner; and
                    ``(iii) the video tape service provider has 
                provided an opportunity, in a clear and conspicuous 
                manner, for the consumer to withdraw on a case-by-case 
                basis or to withdraw for ongoing disclosures, at the 
                consumer's election;''.

              TITLE II--ELECTRONIC COMMUNICATIONS PRIVACY

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Electronic Communications Privacy 
Act Amendments Act of 2012''.

SEC. 202. CONFIDENTIALITY OF ELECTRONIC COMMUNICATIONS.

    Section 2702(a)(3) of title 18, United States Code, is amended to 
read as follows:
            ``(3) a provider of remote computing service or electronic 
        communication service to the public shall not knowingly divulge 
        to any governmental entity the contents of any communication 
        described in section 2703(a), or any record or other 
        information pertaining to a subscriber or customer of such 
        service.''.

SEC. 203. ELIMINATION OF 180-DAY RULE; SEARCH WARRANT REQUIREMENT; 
              REQUIRED DISCLOSURE OF CUSTOMER RECORDS.

    (a) In General.--Section 2703 of title 18, United States Code, is 
amended by striking subsections (a), (b), and (c) and inserting the 
following:
    ``(a) Contents of Wire or Electronic Communications.--A 
governmental entity may require the disclosure by a provider of 
electronic communication service or remote computing service of the 
contents of a wire or electronic communication that is in electronic 
storage with or otherwise stored, held, or maintained by the provider 
only if the governmental entity obtains a warrant issued using the 
procedures described in the Federal Rules of Criminal Procedure (or, in 
the case of a State court, issued using State warrant procedures) that 
is issued by a court of competent jurisdiction directing the 
disclosure.
    ``(b) Notice.--Except as provided in section 2705, not later than 
10 business days, in the case of a law enforcement agency, or not later 
than 3 days, in the case of any other governmental entity, after a 
governmental entity receives the contents of a wire or electronic 
communication of a subscriber or customer from a provider of electronic 
communication service or remote computing service under subsection (a), 
the governmental entity shall serve upon, or deliver to by registered 
or first-class mail, electronic mail, or other means reasonably 
calculated to be effective, as specified by the court issuing the 
warrant, the subscriber or customer--
            ``(1) a copy of the warrant; and
            ``(2) a notice that includes the information referred to in 
        clause (i) and (ii) of section 2705(a)(4)(B).
    ``(c) Records Concerning Electronic Communication Service or Remote 
Computing Service.--
            ``(1) In general.--Subject to paragraph (2), a governmental 
        entity may require a provider of electronic communication 
        service or remote computing service to disclose a record or 
        other information pertaining to a subscriber or customer of the 
        provider or service (not including the contents of 
        communications), only if the governmental entity--
                    ``(A) obtains a warrant issued using the procedures 
                described in the Federal Rules of Criminal Procedure 
                (or, in the case of a State court, issued using State 
                warrant procedures) that is issued by a court of 
                competent jurisdiction directing the disclosure;
                    ``(B) obtains a court order directing the 
                disclosure under subsection (d);
                    ``(C) has the consent of the subscriber or customer 
                to the disclosure; or
                    ``(D) submits a formal written request relevant to 
                a law enforcement investigation concerning 
                telemarketing fraud for the name, address, and place of 
                business of a subscriber or customer of the provider or 
                service that is engaged in telemarketing (as defined in 
                section 2325).
            ``(2) Information to be disclosed.--A provider of 
        electronic communication service or remote computing service 
        shall, in response to an administrative subpoena authorized by 
        Federal or State statute, a grand jury, trial, or civil 
        discovery subpoena, or any means authorized under paragraph 
        (1), disclose to a governmental entity the--
                    ``(A) name;
                    ``(B) address;
                    ``(C) local and long distance telephone connection 
                records, or records of session times and durations;
                    ``(D) length of service (including start date) and 
                types of service used;
                    ``(E) telephone or instrument number or other 
                subscriber number or identity, including any 
                temporarily assigned network address; and
                    ``(F) means and source of payment for such service 
                (including any credit card or bank account number), of 
                a subscriber or customer of such service.
            ``(3) Notice not required.--A governmental entity that 
        receives records or information under this subsection is not 
        required to provide notice to a subscriber or customer.''.
    (b) Technical and Conforming Amendments.--Section 2703(d) of title 
18, United States Code, is amended--
            (1) by striking ``A court order for disclosure under 
        subsection (b) or (c)'' and inserting ``A court order for 
        disclosure under subsection (c)''; and
            (2) by striking ``the contents of a wire or electronic 
        communication, or''.

SEC. 204. DELAYED NOTICE.

    Section 2705 of title 18, United States Code, is amended to read as 
follows:
``Sec. 2705. Delayed notice
    ``(a) Delay of Notification.--
            ``(1) In general.--A governmental entity that is seeking a 
        warrant under section 2703(a) may include in the application 
        for the warrant a request for an order delaying the 
        notification required under section 2703(a) for a period of not 
        more than 180 days, in the case of a law enforcement agency, or 
        not more than 90 days, in the case of any other governmental 
        entity.
            ``(2) Determination.--A court shall grant a request for 
        delayed notification made under paragraph (1) if the court 
        determines that there is reason to believe that notification of 
        the existence of the warrant may result in--
                    ``(A) endangering the life or physical safety of an 
                individual;
                    ``(B) flight from prosecution;
                    ``(C) destruction of or tampering with evidence;
                    ``(D) intimidation of potential witnesses; or
                    ``(E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
            ``(3) Extension.--Upon request by a governmental entity, a 
        court may grant 1 or more extensions of the delay of 
        notification granted under paragraph (2) of not more than 180 
        days, in the case of a law enforcement agency, or not more than 
        90 days, in the case of any other governmental entity.
            ``(4) Expiration of the delay of notification.--Upon 
        expiration of the period of delay of notification under 
        paragraph (2) or (3), the governmental entity shall serve upon, 
        or deliver to by registered or first-class mail, electronic 
        mail or other means reasonably calculated to be effective as 
        specified by the court approving the search warrant, the 
        customer or subscriber--
                    ``(A) a copy of the warrant; and
                    ``(B) notice that informs the customer or 
                subscriber--
                            ``(i) of the nature of the law enforcement 
                        inquiry with reasonable specificity;
                            ``(ii) that information maintained for the 
                        customer or subscriber by the provider of 
                        electronic communication service or remote 
                        computing service named in the process or 
                        request was supplied to, or requested by, the 
                        governmental entity;
                            ``(iii) of the date on which the warrant 
                        was served on the provider and the date on 
                        which the information was provided by the 
                        provider to the governmental entity;
                            ``(iv) that notification of the customer or 
                        subscriber was delayed;
                            ``(v) the identity of the court authorizing 
                        the delay; and
                            ``(vi) of the provision of this chapter 
                        under which the delay was authorized.
    ``(b) Preclusion of Notice to Subject of Governmental Access.--
            ``(1) In general.--A governmental entity that is obtaining 
        the contents of a communication or information or records under 
        section 2703 may apply to a court for an order directing a 
        provider of electronic communication service or remote 
        computing service to which a warrant, order, subpoena, or other 
        directive under section 2703 is directed not to notify any 
        other person of the existence of the warrant, order, subpoena, 
        or other directive for a period of not more than 180 days, in 
        the case of a law enforcement agency, or not more than 90 days, 
        in the case of any other governmental entity.
            ``(2) Determination.--A court shall grant a request for an 
        order made under paragraph (1) if the court determines that 
        there is reason to believe that notification of the existence 
        of the warrant, order, subpoena, or other directive may result 
        in--
                    ``(A) endangering the life or physical safety of an 
                individual;
                    ``(B) flight from prosecution;
                    ``(C) destruction of or tampering with evidence;
                    ``(D) intimidation of potential witnesses; or
                    ``(E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
            ``(3) Extension.--Upon request by a governmental entity, a 
        court may grant 1 or more extensions of an order granted under 
        paragraph (2) of not more than 180 days, in the case of a law 
        enforcement agency, or not more than 90 days, in the case of 
        any other governmental entity.
            ``(4) Prior notice to law enforcement.--Upon expiration of 
        the period of delay of notice under this section, and not later 
        than 3 business days before providing notice to a customer or 
        subscriber, a provider of electronic communications service or 
        remote computing service shall notify the governmental entity 
        that obtained the contents of a communication or information or 
        records under section 2703 of the intent of the provider of 
        electronic communications service or remote computing service 
        to notify the customer or subscriber of the existence of the 
        warrant, order, or subpoena seeking that information.
    ``(c) Definition.--In this section and section 2703, the term `law 
enforcement agency' means an agency of the United States, a State, or a 
political subdivision of a State, authorized by law or by a government 
agency to engage in or supervise the prevention, detection, 
investigation, or prosecution of any violation of criminal law, or any 
other Federal or State agency conducting a criminal investigation.''.

SEC. 205. RULE OF CONSTRUCTION.

    Nothing in this title or an amendment made by this title shall be 
construed to apply the warrant requirement for contents of a wire or 
electronic communication authorized under this title or an amendment 
made by this title to any other section of title 18, United States Code 
(including chapter 119 of such title (commonly known as the ``Wiretap 
Act'')), the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801 et seq.), or any other provision of Federal law.
            Amend the title so as to read: ``An Act to amend section 
        2710 of title 18, United States Code, to clarify that a video 
        tape service provider may obtain a consumer's informed, written 
        consent on an ongoing basis, to improve the provisions of title 
        18 relating to the privacy of electronic communications, and 
        for other purposes.''.
                                                       Calendar No. 556

112th CONGRESS

  2d Session

                               H. R. 2471

_______________________________________________________________________

                                 AN ACT

To amend section 2710 of title 18, United States Code, to clarify that 
a video tape service provider may obtain a consumer's informed, written 
 consent on an ongoing basis and that consent may be obtained through 
                             the Internet.

_______________________________________________________________________

                           November 29, 2012

        Reported with an amendment and an amendment to the title