[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1011 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1011

    To improve the provisions relating to the privacy of electronic 
                            communications.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 17, 2011

   Mr. Leahy introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To improve the provisions relating to the privacy of electronic 
                            communications.

    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 ``Electronic Communications Privacy 
Act Amendments Act of 2011''.

SEC. 2. PROHIBITION ON DISCLOSURE OF CONTENT.

    Section 2702(a)(3) of title 18, United States Code, is amended to 
read as follows:
            ``(3) a provider of electronic communication service, 
        remote computing service, or geolocation information 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 provider or service.''.

SEC. 3. ELIMINATION OF 180-DAY RULE AND SEARCH WARRANT REQUIREMENT; 
              REQUIRED DISCLOSURE OF CUSTOMER RECORDS.

    (a) In General.--Section 2703 of title 18, United States Code, is 
amended--
            (1) by striking subsections (a), (b), and (c) and inserting 
        the following:
    ``(a) Contents of Wire or Electronic Communications in Electronic 
Storage.--
            ``(1) In general.--A governmental entity may require the 
        disclosure by a provider of electronic communication service, 
        remote computing service, or geolocation information service of 
        the contents of a wire or electronic communication that is in 
        electronic storage with or otherwise held or maintained by the 
        provider if the governmental entity obtains a warrant issued 
        and executed in accordance with 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.
            ``(2) Notice.--Except as provided in section 2705, not 
        later than 3 days 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, remote computing service, or geolocation information 
        service under paragraph (1), 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--
                    ``(A) a copy of the warrant; and
                    ``(B) a notice that includes the information 
                referred to in section 2705(a)(5)(B)(i).
    ``(b) Records Concerning Electronic Communication Service, Remote 
Computing Service, or Geolocation Information Service.--
            ``(1) In general.--Subject to paragraph (2) and subsection 
        (g), a governmental entity may require a provider of electronic 
        communication service, remote computing service, or geolocation 
        information 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 and executed in 
                accordance with 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 (c);
                    ``(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) Subpoenas.--
                    ``(A) In general.--A governmental entity may 
                require a provider of electronic communication service, 
                remote computing service, or geolocation information 
                service to disclose information described in 
                subparagraph (B) if the governmental entity obtains--
                            ``(i) an administrative subpoena under a 
                        Federal or State statute; or
                            ``(ii) a Federal or State grand jury 
                        subpoena or trial subpoena.
                    ``(B) Requirements.--The information described in 
                this subparagraph is--
                            ``(i) the name of the subscriber or 
                        customer;
                            ``(ii) the address of the subscriber or 
                        customer;
                            ``(iii) the local and long distance 
                        telephone connection records, or records of 
                        session times and durations, of the subscriber 
                        or customer;
                            ``(iv) length of service (including start 
                        date) and types of service utilized by the 
                        subscriber or customer;
                            ``(v) telephone or instrument number or 
                        other subscriber number or identity, including 
                        any temporarily assigned network address, of 
                        the subscriber or customer; and
                            ``(vi) means and source of payment for such 
                        service (including any credit card or bank 
                        account number) of the subscriber or customer.
            ``(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.''; and
            (2) by redesignating subsections (d) through (g) as 
        subsections (c) through (f), respectively.
    (b) Technical and Conforming Amendments.--
            (1) Section 2258a.--Section 2258A(h)(1) of title 18, United 
        States Code, is amended by striking ``section 2703(f)'' and 
        inserting ``section 2703(e)''.
            (2) Section 2703.--Section 2703(c) of title 18, United 
        States Code, as redesignated by subsection (a), is amended--
                    (A) by striking ``A court order for disclosure 
                under subsection (b) or (c)'' and inserting ``A court 
                order for disclosure under subsection (b)(1)(B) or 
                (g)(3)(A)(ii)''; and
                    (B) by striking ``the contents of a wire or 
                electronic communication, or the records or other 
                information sought,'' and inserting ``the records, 
                other information, or historical geolocation 
                information sought''.
            (3) Section 2707.--Section 2707(a) of title 18, United 
        States Code, is amended by striking ``section 2703(e)'' and 
        inserting ``section 2703(d)''.
            (4) Section 3486.--Section 3486(a)(1)(C)(i) of title 18, 
        United States Code, is amended by striking ``section 
        2703(c)(2)'' and inserting ``section 2703(b)(2)(B)''.

SEC. 4. 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 90 days.
            ``(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;
                    ``(E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial; or
                    ``(F) endangering national security.
            ``(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 90 
        days.
            ``(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) that information maintained for the 
                        customer or subscriber by the provider of 
                        electronic communication service, remote 
                        computing service, or geolocation information 
                        service named in the process or request was 
                        supplied to, or requested by, the governmental 
                        entity;
                            ``(ii) of the date on which the request to 
                        the provider for information was made by the 
                        governmental entity and the date on which the 
                        information was provided by the provider to the 
                        governmental entity;
                            ``(iii) that notification of the customer 
                        or subscriber was delayed;
                            ``(iv) the identity of the court 
                        authorizing the delay; and
                            ``(v) 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 or geolocation information under section 2713 may 
        apply to a court for an order directing a provider of 
        electronic communication service, remote computing service, or 
        geolocation information service to which a warrant, order, 
        subpoena, or other directive under section 2703 or 2713 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 90 days.
            ``(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;
                    ``(E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial; or
                    ``(F) endangering national security.
            ``(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 90 days.''.

SEC. 5. LOCATION INFORMATION PRIVACY.

    (a) In General.--Chapter 121 of title 18, United States Code, is 
amended by adding at the end the following:
``Sec. 2713. Location tracking of electronic communications device
    ``(a) Prohibition.--Except as provided in subsection (b), (c), or 
(d), no governmental entity may access or use an electronic 
communications device to acquire geolocation information.
    ``(b) Acquisition Pursuant to a Warrant or Court Order.--A 
governmental entity may access or use an electronic communications 
device to acquire geolocation information if the governmental entity 
obtains--
            ``(1) a warrant issued and executed in accordance with the 
        Federal Rules of Criminal Procedure relating to tracking 
        devices (or, in the case of a State court, issued using State 
        warrant procedures), issued by a court of competent 
        jurisdiction authorizing the accessing or use of an electronic 
        communications device to acquire geolocation information; or
            ``(2) a court order under title I or title VII of the 
        Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
        et seq. and 1881 et seq.) authorizing the accessing or use of 
        an electronic communications device to acquire geolocation 
        information.
    ``(c) Permitted Acquisitions Without Court Order.--A governmental 
entity may access or use an electronic communications device to acquire 
geolocation information--
            ``(1) as permitted under section 222(d)(4) of the 
        Communications Act of 1934 (47 U.S.C. 222(d)(4)) in order to 
        respond to a call for emergency services by a user of an 
        electronic communications device; or
            ``(2) with the express consent of the owner or user of the 
        electronic communications device concerned.
    ``(d) Emergency Acquisition of Geolocation Information.--
            ``(1) In general.--Subject to paragraph (2), an 
        investigative or law enforcement officer specially designated 
        by the Attorney General, the Deputy Attorney General, the 
        Associate Attorney General, any Assistant Attorney General, any 
        acting Assistant Attorney General, any United States attorney, 
        any acting United States attorney, or the principal prosecuting 
        attorney of any State or political subdivision thereof acting 
        pursuant to a statute of that State may access or use an 
        electronic communications device to acquire geolocation 
        information if the investigative or law enforcement officer 
        reasonably determines that--
                    ``(A) an emergency situation exists that--
                            ``(i) involves--
                                    ``(I) immediate danger of death or 
                                serious bodily injury to any person;
                                    ``(II) conspiratorial activities 
                                characteristic of organized crime; or
                                    ``(III) an immediate threat to 
                                national security; and
                            ``(ii) requires the accessing or use of an 
                        electronic communications device to acquire 
                        geolocation information before an order 
                        authorizing the acquisition may, with due 
                        diligence, be obtained; and
                    ``(B) there are grounds upon which an order could 
                be entered under this section to authorize the 
                accessing or use of an electronic communications device 
                to acquire geolocation information.
            ``(2) Order and termination.--If an investigative or law 
        enforcement officer accesses or uses an electronic 
        communications device to acquire geolocation information under 
        paragraph (1)--
                    ``(A) not later than 48 hours after the activity to 
                acquire the geolocation information has occurred, or 
                begins to occur, the investigative or law enforcement 
                officer shall seek a warrant or order described in 
                subsection (b) approving the acquisition; and
                    ``(B) unless a warrant or order described in 
                subsection (b) is issued approving the acquisition, the 
                activity to acquire the geolocation information shall 
                terminate immediately at the earlier of the time--
                            ``(i) the information sought is obtained;
                            ``(ii) the application for the warrant or 
                        order is denied; or
                            ``(iii) at which 48 hours have elapsed 
                        since the activity to acquire the geolocation 
                        information began to occur.
            ``(3) Violation and suppression of evidence.--
                    ``(A) In general.--In a circumstance described in 
                subparagraph (B), a court may determine that--
                            ``(i) no information obtained, or evidence 
                        derived from, geolocation information acquired 
                        as part of the accessing or use of an 
                        electronic communications device to acquire 
                        geolocation information may be received into 
                        evidence or otherwise disclosed in any trial, 
                        hearing, or other proceeding in or before any 
                        court, grand jury, department, office, agency, 
                        regulatory body, legislative committee, or 
                        other authority of the United States, a State, 
                        or political subdivision thereof; and
                            ``(ii) no information concerning any person 
                        acquired from the geolocation information may 
                        be used or disclosed in any other manner, 
                        without the consent of the person.
                    ``(B) Circumstances.--A circumstance described in 
                this subparagraph is any instance in which--
                            ``(i) an investigative or law enforcement 
                        officer does not--
                                    ``(I) obtain a warrant or order 
                                described in subsection (b) within 48 
                                hours of commencing the accessing or 
                                use of the electronic communications 
                                device; or
                                    ``(II) terminate the activity to 
                                acquire geolocation information in 
                                accordance with paragraph (2)(B); or
                            ``(ii) a court denies the application for a 
                        warrant or order approving the accessing or use 
                        of an electronic communications device to 
                        acquire geolocation information.
    ``(e) Assistance and Compensation.--
            ``(1) In general.--A warrant described in subsection (b)(1) 
        authorizing the accessing or use of an electronic 
        communications device to acquire geolocation information shall, 
        upon request of the applicant, direct that a provider of 
        electronic communication service, remote computing service, or 
        geolocation information service shall provide to the applicant 
        forthwith all information, facilities, and technical assistance 
        necessary to accomplish the acquisition unobtrusively and with 
        a minimum of interference with the services that the provider 
        is providing to or through the electronic communications device 
        in question.
            ``(2) Compensation.--Any provider of electronic 
        communication service, remote computing service, or geolocation 
        information service providing information, facilities, or 
        technical assistance under a directive under paragraph (1) 
        shall be compensated by the applicant for reasonable expenses 
        incurred in providing the information, facilities, or 
        assistance.
    ``(f) No Cause of Action Against a Provider.--No cause of action 
shall lie in any court against any provider of electronic communication 
service, remote computing service, or geolocation information service, 
or an officer, employee, or agent of the provider or other specified 
person for providing information, facilities, or assistance necessary 
to accomplish an acquisition of geolocation information authorized 
under this section.''.
    (b) Technical and Conforming Amendments.--Title 18 of the United 
States Code is amended--
            (1) in the table of sections for chapter 121, by adding at 
        the end the following:

``2713. Location tracking of electronic communications device.'';
            (2) in section 2703--
                    (A) in subsection (d), as redesignated by section 
                3, by inserting ``geolocation information service, or 
                remote computing service,'' after ``electronic 
                communication service,'';
                    (B) in subsection (e)(1), as redesignated by 
                section 3, by striking ``electronic communication 
                services or a'' and inserting ``electronic 
                communication service, geolocation information service, 
                or''; and
                    (C) in subsection (f), as redesignated by section 
                3--
                            (i) by inserting ``, geolocation 
                        information service,'' after ``electronic 
                        communication service''; and
                            (ii) by inserting ``, geolocation 
                        information,'' after ``contents of 
                        communications'';
            (3) in section 2711--
                    (A) in paragraph (3), by striking ``and'' at the 
                end;
                    (B) in paragraph (4), by striking the period at the 
                end and inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(5) the term `electronic communications device' means any 
        device that enables access to or use of an electronic 
        communications system, electronic communication service, remote 
        computing service, or geolocation information service;
            ``(6) the term `geolocation information'--
                    ``(A) means any information concerning the location 
                of an electronic communications device that is in whole 
                or in part generated by or derived from the operation 
                or use of the electronic communications device;
                    ``(B) does not include--
                            ``(i) information described in section 
                        2703(b)(2)(B); or
                            ``(ii) the contents of a communication;
            ``(7) the term `geolocation information service' means the 
        provision of a global positioning service or other mapping, 
        locational, or directional information service;
            ``(8) the term `electronic communication identifiable 
        information' means the--
                    ``(A) name of a person or entity;
                    ``(B) address of a person or entity;
                    ``(C) records of session times and durations of a 
                person or entity;
                    ``(D) length of service and types of service used 
                by a person or entity;
                    ``(E) telephone or instrument number or other 
                subscriber number or identity (including any 
                temporarily assigned network address) of a person or 
                entity; and
                    ``(F) dialing, routing, addressing, and signaling 
                information associated with each communication to or 
                from the subscriber account of a person or entity 
                (including the date, time, and duration of the 
                communications, without geographical limit);
            ``(9) the term `toll billing records' means the--
                    ``(A) name of a person or entity;
                    ``(B) address of a person or entity;
                    ``(C) length of service of a person or entity; and
                    ``(D) local and long distance billing records of a 
                person or entity; and
            ``(10) the term `customer' means any person, or authorized 
        representative of that person, who used or is using any service 
        provided by an electronic communication service, remote 
        computing service, or geolocation information service, 
        regardless of whether the service was, or is, being provided 
        for a monetary fee.''; and
            (4) in section 3127--
                    (A) in paragraph (1), by striking ``and `contents' 
                have'' and inserting ```contents', and `geolocation 
                information' have'';
                    (B) in paragraph (3), by inserting `` or 
                geolocation information,'' after ``contents of any 
                communication''; and
                    (C) in paragraph (4), by inserting ``or geolocation 
                information'' after ``contents of any communication''.

SEC. 6. REQUIRED DISCLOSURE OF LOCATION INFORMATION AND WARRANT 
              REQUIREMENT.

    Section 2703 of title 18, United States Code, as amended by section 
3, is amended by adding at the end the following:
    ``(g) Location Information.--
            ``(1) In general.--Except as provided in paragraph (2), a 
        governmental entity may not require a provider of electronic 
        communication service, remote computing service, or geolocation 
        information service to disclose geolocation information 
        contemporaneously or prospectively.
            ``(2) Exceptions.--
                    ``(A) Warrants.--A governmental entity may require 
                a provider of electronic communication service, remote 
                computing service, or geolocation information service 
                to disclose geolocation information contemporaneously 
                or prospectively pursuant to a warrant issued and 
                executed in accordance with the Federal Rules of 
                Criminal Procedure (or, in the case of a State court, 
                issued using State warrant procedures), issued by a 
                court of competent jurisdiction.
                    ``(B) Call for emergency services.--A provider of 
                electronic communication service, remote computing 
                service, or geolocation information service may provide 
                geolocation information contemporaneously or 
                prospectively to a governmental entity as permitted 
                under section 222(d)(4) of the Communications Act of 
                1934 (47 U.S.C. 222(d)(4)) in order to respond to a 
                call for emergency services by a user of an electronic 
                communications device.
            ``(3) Historical location information.--
                    ``(A) In general.--A governmental entity may 
                require a provider of electronic communication service, 
                remote computing service, or geolocation information 
                service to disclose historical geolocation information 
                pertaining to a subscriber or customer of the provider 
                only if the governmental entity --
                            ``(i) obtains a warrant issued and executed 
                        in accordance with 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;
                            ``(ii) obtains a court order directing the 
                        disclosure under subsection (c); or
                            ``(iii) has the consent of the subscriber 
                        or customer to the disclosure.
                    ``(B) Notice not required.--A governmental entity 
                that receives historical geolocation information under 
                subparagraph (A) is not required to provide notice to a 
                subscriber or customer.''.

SEC. 7. VOLUNTARY DISCLOSURES TO PROTECT CYBERSECURITY.

    Section 2702 of title 18, United States Code is amended--
            (1) in subsection (b)(5), by inserting ``, cybersecurity,'' 
        after ``rights'';
            (2) in subsection (c)(3), by inserting ``, cybersecurity,'' 
        after ``rights''; and
            (3) by adding at the end the following:
    ``(e) Reporting of Cybersecurity Disclosures.--On an annual basis, 
the Attorney General of the United States shall submit to the Committee 
on the Judiciary of the House of Representatives and the Committee on 
the Judiciary of the Senate a report containing--
            ``(1) the number of accounts from which the Federal 
        Government has received voluntary disclosures under subsection 
        (b)(5) that pertain to the protection of cybersecurity; and
            ``(2) a summary of the basis for disclosure in each 
        instance where--
                    ``(A) a voluntary disclosure under subsection 
                (b)(5) that pertains to the protection of cybersecurity 
                was made to the Department of Justice; and
                    ``(B) the investigation pertaining to the 
                disclosure was closed without the filing of criminal 
                charges.''.

SEC. 8. ELECTRONIC COMMUNICATION IDENTIFIABLE INFORMATION.

    (a) In General.--Section 2709(a) of title 18, United States Code, 
is amended by striking ``electronic communication transactional 
records'' and inserting ``electronic communication identifiable 
information''.
    (b) Required Certification.--Section 2709(b) of title 18, United 
States Code, is amended to read as follows:
    ``(b) Required Certification.--The Director of the Federal Bureau 
of Investigation, or a designee in a position not lower than Deputy 
Assistant Director at Bureau headquarters or a Special Agent in Charge 
in a Bureau field office designated by the Director, may request the 
toll billing records and electronic communication identifiable 
information of a person or entity if the Director (or designee) 
certifies in writing to the wire or electronic communication service 
provider or geolocation information service provider to which the 
request is made that the toll billing records and electronic 
communication identifiable information sought are relevant to an 
authorized investigation to protect against international terrorism or 
clandestine intelligence activities, provided that such an 
investigation of a United States person is not conducted solely on the 
basis of activities protected by the First Amendment to the 
Constitution of the United States.''.
                                 <all>