[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.''.
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