[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6529 Introduced in House (IH)]

112th CONGRESS
  2d Session
                                H. R. 6529

 To amend title 18, United States Code, with respect to disclosures to 
  governments by communications-related service providers of certain 
information consisting of or relating to communications, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 21, 2012

Ms. Zoe Lofgren of California introduced the following bill; which was 
  referred to the Committee on the Judiciary, and in addition to the 
Select Committee on Intelligence (Permanent Select), for a period to be 
subsequently determined by the Speaker, in each case for consideration 
  of such provisions as fall within the jurisdiction of the committee 
                               concerned

_______________________________________________________________________

                                 A BILL


 
 To amend title 18, United States Code, with respect to disclosures to 
  governments by communications-related service providers of certain 
information consisting of or relating to communications, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``ECPA 2.0 Act of 2012''.

SEC. 2. WARRANT REQUIRED FOR CONTENTS OF COMMUNICATIONS.

    (a) Compelled Disclosure of Communication Contents.--
            (1) In general.--Section 2703 of title 18, United States 
        Code, is amended--
                    (A) in subsection (a)--
                            (i) by striking ``in Electronic Storage'' 
                        in the subsection header;
                            (ii) by inserting ``or remote computing 
                        service'' in the first sentence after 
                        ``electronic communication service'';
                            (iii) by striking ``that is in electronic 
                        storage in an electronic communications system 
                        for one hundred and eighty days or less,'' and 
                        inserting ``that is stored, held, or maintained 
                        by that service,''; and
                            (iv) by striking the final sentence and 
                        inserting ``Within three days after a 
                        governmental entity receives such contents from 
                        a service provider pursuant to this subsection, 
                        the governmental entity shall serve upon, or 
                        deliver by registered or first-class mail, or 
                        other means reasonably calculated to be 
                        effective as specified by the court issuing the 
                        warrant to the subscriber, customer, or user a 
                        copy of the warrant and a notice that includes 
                        the information referenced in section 
                        2705(a)(4)(A) and (B)(i), except that delayed 
                        notice may be provided pursuant to section 2705 
                        of this title.''; and
                    (B) by striking subsection (b).
            (2) Conforming amendment.--Section 2703(d) of title 18, 
        United States Code, is amended by striking ``(b) or''.
    (b) Voluntary Disclosure of Communication Contents.--
            (1) In general.--Section 2702(a)(3) of title 18, United 
        States Code, is amended--
                    (A) by inserting ``to any governmental entity the 
                contents of communication covered by subsection (a) of 
                section 2703 or any'' after ``divulge'';
                    (B) by inserting ``or user'' after ``customer''; 
                and
                    (C) by striking ``(not including the contents of 
                communications covered by paragraph (1) or (2))''.
            (2) Conforming amendments.--Section 2705 of title 18, 
        United States Code, is amended--
                    (A) in subsection (a)(1)--
                            (i) in the subsection heading, by striking 
                        ``2703(b)'' and inserting ``2703(a)'';
                            (ii) in subparagraph (A), by striking 
                        ``court order'' each place it appears and 
                        inserting ``warrant'';
                            (iii) in subparagraph (A), by striking 
                        ``2703(b)'' and inserting ``2703(a)''; and
                            (iv) by striking subparagraph (B);
                    (B) by striking subsection (a)(3);
                    (C) in subsection (a)(4), by striking ``or by 
                certification by a governmental entity, but only in 
                accordance with subsection (b) of this section.'';
                    (D) in subsection (a)(5)--
                            (i) by inserting after ``first-class 
                        mail,'' the following: ``or other means 
                        reasonably calculated to be effective as 
                        specified by the court issuing the warrant'';
                            (ii) by striking ``the process or request'' 
                        and replacing it with ``warrant''; and
                            (iii) in subsection (5)(A)(iii), by 
                        striking ``governmental entity or'' and 
                        ``certification or'';
                    (E) by striking subsection (a)(6); and
                    (F) in subsection (b)--
                            (i) by striking ``when it is not required 
                        to notify the subscriber or customer under 
                        section 2703(b)(1), or''; and
                            (ii) by striking ``subpoena or court 
                        order'' each place it appears.

SEC. 3. GEOLOCATION INFORMATION PROTECTION.

    (a) Protection of Geolocation Information.--
            (1) In general.--Part 1 of title 18, United States Code, is 
        amended by inserting after chapter 119 the following:

                 ``CHAPTER 120--GEOLOCATION INFORMATION

``Sec.
``2601. Definitions.
``2602. Interception and disclosure of geolocation information.
``2603. Prohibition of use as evidence of acquired geolocation 
                            information.
``2604. Emergency situation exception.
``2605. Recovery of civil damages authorized.
``Sec. 2601. Definitions
    ``In this chapter:
            ``(1) Electronic communication service.--The term 
        `electronic communication service' has the meaning given that 
        term in section 2510.
            ``(2) Electronic surveillance.--The term `electronic 
        surveillance' has the meaning given that term in section 101 of 
        the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
        1801).
            ``(3) Geolocation information.--The term `geolocation 
        information' means, with respect to an individual, any 
        information that is not the content of a communication, 
        concerning the location of a wireless communication device or 
        tracking device (as that term is defined section 3117) that, in 
        whole or in part, is generated by or derived from the operation 
        of that device and that could be used to determine or infer 
        information regarding the present, prospective, or historical 
        location of the individual.
            ``(4) Geolocation information service.--The term 
        `geolocation information service' means the provision of a 
        global positioning service or other mapping, locational, or 
        directional information service to the public, or to such class 
        of users as to be effectively available to the public, by or 
        through the operation of any wireless communication device.
            ``(5) Governmental entity.--The term `governmental entity' 
        means any employee or agent of the United States, or any State 
        or political subdivision thereof.
            ``(6) Intercept.--The term `intercept' means the 
        acquisition of geolocation information through the use of any 
        electronic, mechanical, or other device.
            ``(7) Investigative or law enforcement officer.--The term 
        `investigative or law enforcement officer' means any officer of 
        the United States or of a State or political subdivision 
        thereof, who is empowered by law to conduct investigations of, 
        or to make arrests for, offenses enumerated in this chapter, 
        and any attorney authorized by law to prosecute or participate 
        in the prosecution of such offenses.
            ``(8) Remote computing service.--The term `remote computing 
        service' has the meaning given that term in section 2711.
            ``(9) State.--The term `State' means any State of the 
        United States, the District of Columbia, the Commonwealth of 
        Puerto Rico, and any territory or possession of the United 
        States.
            ``(10) Wireless communication device.--The term `wireless 
        communication device' means any device that enables access to, 
        or use of, an electronic communication system or service, 
        remote computing service, or geolocation information service, 
        if that device utilizes a radio or other wireless connection to 
        access such system or service, including any mobile telephone, 
        global positioning system receiving device, mobile computer, or 
        other similar or successor device.
            ``(11) Covered service.--The term `covered services' means 
        electronic communication service, remote computing service, or 
        of geolocation information service.
``Sec. 2602. Interception and disclosure of geolocation information
    ``(a) In General.--Except as otherwise specifically provided in 
this chapter, it shall be unlawful for any governmental entity to--
            ``(1) intentionally intercept, endeavor to intercept, or 
        procure any other person to intercept or endeavor to intercept, 
        geolocation information pertaining to an individual;
            ``(2) intentionally disclose, or endeavor to disclose, to 
        any person geolocation information pertaining to an individual, 
        knowing or having reason to know that the information was 
        obtained through the interception of such information in 
        violation of this subsection;
            ``(3) intentionally use, or endeavor to use, any 
        geolocation information, knowing or having reason to know that 
        the information was obtained through the interception of such 
        information in violation of this subsection; or
            ``(4)(A) intentionally disclose, or endeavor to disclose, 
        to any person the geolocation information pertaining to an 
        individual intercepted by means authorized by subsections (b) 
        through (f), except as provided in such subsections;
            ``(B) knowing or having reason to know that the information 
        was obtained through the interception of such information in 
        connection with a criminal investigation;
            ``(C) having obtained or received the information in 
        connection with a criminal investigation; and
            ``(D) with intent to improperly obstruct, impede, or 
        interfere with a duly authorized criminal investigation.
    ``(b) Exception for Conducting Foreign Intelligence Surveillance.--
Notwithstanding any other provision of this chapter, it shall not be 
unlawful for an officer, employee, or agent of the United States in the 
normal course of the official duty of the officer, employee, or agent 
to conduct electronic surveillance, as authorized by the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
    ``(c) Exception for Consent.--
            ``(1) In general.--It shall not be unlawful under this 
        chapter to intercept geolocation information pertaining to an 
        individual if such individual has given prior consent to such 
        interception unless such information is intercepted for the 
        purpose of committing any criminal or tortious act in violation 
        of the Constitution or laws of the United States or of any 
        State.
            ``(2) Children.--The exception in paragraph (1) permits a 
        parent or legal guardian of a child to give consent to 
        intercept geolocation information.
    ``(d) Exception for Public Information.--It shall not be unlawful 
under this chapter to intercept or access geolocation information 
relating to an individual through any system that is configured so that 
such information is readily accessible to the general public.
    ``(e) Exception for Emergency Information.--It shall not be 
unlawful under this chapter for any investigative or law enforcement 
officer or other emergency responder to intercept or access geolocation 
information relating to an individual if such information is used--
            ``(1) to respond to a request made by such individual for 
        assistance; or
            ``(2) in circumstances in which it is reasonable to believe 
        that the life or safety of the individual is threatened, to 
        assist the individual.
    ``(f) Exception for Warrant.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Court of competent jurisdiction.--The term 
                `court of competent jurisdiction' includes--
                            ``(i) any district court of the United 
                        States (including a magistrate judge of such a 
                        court) or any United States court of appeals 
                        that--
                                    ``(I) has jurisdiction over the 
                                offense being investigated;
                                    ``(II) is in or for a district in 
                                which the provider of a geolocation 
                                information service is located or in 
                                which the geolocation information is 
                                stored; or
                                    ``(III) is acting on a request for 
                                foreign assistance pursuant to section 
                                3512 of this title; or
                            ``(ii) a court of general criminal 
                        jurisdiction of a State authorized by the law 
                        of that State to issue search warrants.
                    ``(B) Governmental entity.--The term `governmental 
                entity' means a department or agency of the United 
                States or any State or political subdivision thereof.
            ``(2) Warrant.--A governmental entity may intercept 
        geolocation information or require the disclosure by a provider 
        of covered services of geolocation information only pursuant to 
        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) by a court of competent 
        jurisdiction, or as otherwise provided in this chapter or the 
        Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
        et seq.).
    ``(g) Prohibition on Divulging Geolocation Information.--
            ``(1) In general.--Except as provided in paragraph (2), a 
        person providing covered services shall not intentionally 
        divulge to any governmental entity geolocation information 
        pertaining to an individual.
            ``(2) Exceptions.--A person providing covered services may 
        divulge geolocation information--
                    ``(A) as otherwise authorized in subsections (b) 
                through (f);
                    ``(B) with the lawful consent of such individual;
                    ``(C) as permitted under section 222(d)(4) of the 
                Communications Act of 1934 (47 U.S.C. 222(d)(4)); or
                    ``(D) which was inadvertently obtained by the 
                service provider and which appears to pertain to the 
                commission of a crime, if such divulgence is made to a 
                law enforcement agency.
``Sec. 2603. Prohibition of use as evidence of acquired geolocation 
              information
    ``If any geolocation information has been intercepted, used, or 
disclosed in violation of this chapter, no part of such information and 
no evidence derived therefrom may be received in evidence in any trial, 
hearing, or other proceeding in or before any court, grand jury, 
department, officer, agency, regulatory body, legislative committee, or 
other authority of the United States, a State, or a political 
subdivision thereof, except in a civil action to obtain relief for a 
violation of this chapter.
``Sec. 2604. Emergency situation exception
    ``(a) Emergency Situation Exception.--Notwithstanding any other 
provision of this chapter, any investigative or law enforcement 
officer, specially designated by the Attorney General, the Deputy 
Attorney General, the Associate Attorney General, or by the principal 
prosecuting attorney of any State or subdivision thereof acting 
pursuant to a statute of that State, may intercept geolocation 
information if--
            ``(1) such officer reasonably determines that an emergency 
        situation exists that--
                    ``(A) involves--
                            ``(i) immediate danger of death or serious 
                        physical injury to any individual;
                            ``(ii) conspiratorial activities 
                        threatening the national security interest; or
                            ``(iii) conspiratorial activities 
                        characteristic of organized crime; and
                    ``(B) requires geolocation information be 
                intercepted before an order authorizing such 
                interception can, with due diligence, be obtained;
            ``(2) there are grounds upon which an order could be 
        entered to authorize such interception; and
            ``(3) an application for an order approving such 
        interception is made within 48 hours after the interception has 
        occurred or begins to occur.
    ``(b) Failure To Obtain Court Order.--
            ``(1) Termination of acquisition.--In the absence of an 
        order, an interception of geolocation information carried out 
        under subsection (a) shall immediately terminate when the 
        information sought is obtained or when the application for the 
        order is denied, whichever is earlier.
            ``(2) Prohibition on use as evidence.--In the event such 
        application for approval is denied, the geolocation information 
        shall be treated as having been obtained in violation of this 
        chapter and an inventory shall be served on each individual who 
        is reasonably able to be contacted and to whom any such 
        geolocation information pertains.
``Sec. 2605. Recovery of civil damages authorized
    ``(a) In General.--Any individual whose geolocation information is 
intercepted, disclosed, or intentionally used in violation of this 
chapter may in a civil action recover from the person, other than the 
United States, which engaged in that violation such relief as may be 
appropriate.
    ``(b) Relief.--In an action under this section, appropriate relief 
includes--
            ``(1) such preliminary and other equitable or declaratory 
        relief as may be appropriate;
            ``(2) damages under subsection (c) and punitive damages in 
        appropriate cases; and
            ``(3) a reasonable attorney's fee and other litigation 
        costs reasonably incurred.
    ``(c) Computation of Damages.--The court may assess as damages 
under this section whichever is the greater of--
            ``(1) the sum of the actual damages suffered by the 
        plaintiff and any profits made by the violator as a result of 
        the violation; or
            ``(2) statutory damages of whichever is the greater of $100 
        a day for each day of violation or $10,000.
    ``(d) Defense.--It is a defense against any civil action to obtain 
relief for a violation of this chapter that the defendant acted in a 
good faith reliance on--
            ``(1) a court warrant or order, a grand jury subpoena, a 
        legislative authorization, or a statutory authorization;
            ``(2) a request of an investigative or law enforcement 
        officer under section 2604; or
            ``(3) a good-faith determination that an exception under 
        section 2602 permitted the conduct complained of.
    ``(e) Limitation.--A civil action under this section may not be 
commenced later than two years after the date upon which the claimant 
first has a reasonable opportunity to discover the violation.
    ``(f) Administrative Discipline.--If a court or appropriate 
department or agency determines that the United States or any of its 
departments or agencies has violated any provision of this chapter, and 
the court or appropriate department or agency finds that the 
circumstances surrounding the violation raise serious questions about 
whether or not an officer or employee of the United States acted 
willfully or intentionally with respect to the violation, the 
department or agency shall, upon receipt of a true and correct copy of 
the decision and findings of the court or appropriate department or 
agency promptly initiate a proceeding to determine whether disciplinary 
action against the officer or employee is warranted. If the head of the 
department or agency involved determines that disciplinary action is 
not warranted, such head shall notify the Inspector General with 
jurisdiction over the department or agency concerned and shall provide 
the Inspector General with the reasons for such determination.
    ``(g) Improper Disclosure Is Violation.--Any willful disclosure or 
use by an investigative or law enforcement officer or governmental 
entity of information beyond the extent permitted by this chapter is a 
violation of this chapter for purposes of this section.''.
            (2) Clerical amendment.--The table of chapters for part 1 
        of title 18, United States Code, is amended by inserting after 
        the item relating to chapter 119 the following:

``120. Geolocation information..............................    2601''.
            (3) Conforming amendments.--Section 3512(a) of title 18, 
        United States Code, is amended--
                    (A) in paragraph (2)--
                            (i) by redesignating subparagraphs (B), 
                        (C), and (D) as subparagraphs (C), (D), and 
                        (E), respectively; and
                            (ii) by inserting after subparagraph (A) 
                        the following:
                    ``(B) a warrant or order for geolocation 
                information or records related thereto, as provided 
                under section 2602 of this title;''.
    (b) Requirement for Search Warrants To Acquire Geolocation 
Information.--Rule 41(a) of the Federal Rules of Criminal Procedure is 
amended--
            (1) in paragraph (2)(A), by striking the period at the end 
        and inserting a comma and ``including geolocation 
        information.''; and
            (2) by adding at the end the following:
                    ``(F) `Geolocation information' has the meaning 
                given that term in section 2601 of title 18, United 
                States Code.''.
    (c) Fraud and Related Activity in Connection With Obtaining 
Geolocation Information.--
            (1) Criminal violation.--Section 1039(h) of title 18, 
        United States Code, is amended--
                    (A) in paragraph (2)--
                            (i) in subparagraph (A), by striking 
                        ``and'' at the end;
                            (ii) in subparagraph (B), by striking the 
                        period at the end and inserting a semicolon and 
                        ``and''; and
                            (iii) by adding at the end the following 
                        new subparagraph:
                    ``(C) includes any geolocation information 
                service.'';
                    (B) by redesignating paragraph (4) as paragraph 
                (5); and
                    (C) by inserting after paragraph (3) the following:
            ``(4) Geolocation information service.--The term 
        `geolocation information service' has the meaning given that 
        term in section 2601.''.
            (2) Conforming amendments.--
                    (A) Definition amendments.--Section 1039(h)(1) of 
                title 18, United States Code, is amended--
                            (i) in the paragraph heading, by inserting 
                        ``or gps'' after ``phone''; and
                            (ii) in the matter preceding subparagraph 
                        (A), by inserting ``or GPS'' after ``phone''.
                    (B) Conforming amendments.--Section 1039 of title 
                18, United States Code, is amended--
                            (i) in the section heading by inserting 
                        ``or GPS'' after ``phone'';
                            (ii) in subsection (a)--
                                    (I) in the matter preceding 
                                paragraph (1), by inserting ``or GPS'' 
                                after ``phone''; and
                                    (II) in paragraph (4), by inserting 
                                ``or GPS'' after ``phone'';
                            (iii) in subsection (b)--
                                    (I) in the subsection heading, by 
                                inserting ``or GPS'' after ``Phone'';
                                    (II) in paragraph (1), by inserting 
                                ``or GPS'' after ``phone'' both places 
                                that term appears; and
                                    (III) in paragraph (2), by 
                                inserting ``or GPS'' after ``phone''; 
                                and
                            (iv) in subsection (c)--
                                    (I) in the subsection heading, by 
                                inserting ``or GPS'' after ``Phone'';
                                    (II) in paragraph (1), by inserting 
                                ``or GPS'' after ``phone'' both places 
                                that term appears; and
                                    (III) in paragraph (2), by 
                                inserting ``or GPS'' after ``phone''.
                    (C) Clerical amendment.--The table of sections for 
                chapter 47 of title 18, United States Code, is amended 
                by striking the item relating to section 1039 and 
                inserting the following:

``1039. Fraud and related activity in connection with obtaining 
                            confidential phone or GPS records 
                            information of a covered entity.''.
            (3) Sentencing guidelines.--
                    (A) Review and amendment.--Not later than 180 days 
                after the date of enactment of this Act, the United 
                States Sentencing Commission, pursuant to its authority 
                under section 994 of title 28, United States Code, and 
                in accordance with this subsection, shall review and, 
                if appropriate, amend the Federal sentencing guidelines 
                and policy statements applicable to persons convicted 
                of any offense under section 1039 of title 18, United 
                States Code, as amended by this subsection.
                    (B) Authorization.--The United States Sentencing 
                Commission may amend the Federal sentencing guidelines 
                in accordance with the procedures set forth in section 
                21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 
                note) as though the authority under that section had 
                not expired.
    (d) Statement of Exclusive Means of Acquiring Geolocation 
Information.--
            (1) In general.--No person may acquire the geolocation 
        information of a person for protective activities or law 
        enforcement or intelligence purposes except pursuant to a 
        warrant issued pursuant to rule 41 of the Federal Rules of 
        Criminal Procedure, as amended by subsection (b), or the 
        amendments made by this section, or the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801).
            (2) Geolocation information defined.--In this subsection, 
        the term ``geolocation information'' has the meaning given that 
        term in section 2601 of title 18, United States Code, as 
        amended by subsection (a).

SEC. 4. STRENGTHENED REQUIREMENTS FOR ORDERS FOR TRAP AND TRACE 
              DEVICES.

    (a) Section 3122(b) of title 18, United States Code, is amended by 
striking paragraph (2) and inserting ``a statement of facts relied upon 
by the applicant to justify issuance of an order''.
    (b) Section 3123(a)(1) of title 18, United States Code, is 
amended--
            (1) by striking ``shall'' and inserting ``may'';
            (2) by striking ``the attorney for the government has 
        certified to the court'' and inserting ``the application 
        establishes specific and articulable facts showing reasonable 
        grounds to believe that''; and
            (3) by inserting ``and material'' after ``relevant''.

SEC. 5. PROHIBITIONS OF BULK SUBPOENAS.

    Section 2703(c)(2) of title 18, United States Code, is amended by 
striking ``of a subscriber to or customer'' and all that follows and 
inserting ``of a subscriber to or customer or user of such a service 
when the governmental entity uses any means available under paragraph 
(1) or uses an administrative subpoena authorized by a Federal or State 
statute or a Federal or State grand jury or trial subpoena specifying 
the particular subscriber, customer, or user whose information is 
sought by name, address, telephone or instrument number, subscriber 
number or identifier, including any temporarily assigned network 
address, credit card or bank account number, or any other information 
that uniquely identifies the particular subscriber, customer, or 
user.''.
                                 <all>