[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or until consent is withdrawn by such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is withdrawn by the consumer, which ever is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