1.This Act may be cited as
the Electronic Communications Privacy
Act Amendments Act of 2011
.
2.Prohibition on
disclosure of contentSection
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.
.
3.Elimination of
180-day rule and search warrant requirement; required disclosure of customer
records
(a)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)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)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)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)
(A)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)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)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(h)(1) of title 18, United States Code, is
amended by striking section 2703(f)
and inserting section
2703(e)
.
(2)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(a) of title 18, United States Code, is amended
by striking section 2703(e)
and inserting section
2703(d)
.
(4)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)
.
4.Section 2705 of title
18, United States Code, is amended to read as follows:
2705.
(a)
(1)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)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)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 notificationUpon 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)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)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)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.
.
5.Location
information privacy
(a)Chapter 121 of title
18, United States Code, is amended by adding at the end the following:
2713.Location
tracking of electronic communications device
(a)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 orderA 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 orderA 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)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)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 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)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)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)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 providerNo 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 amendmentsTitle 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
.
6.Required
disclosure of location information and warrant requirementSection 2703 of title 18, United States
Code, as amended by section 3, is amended by adding at the end the
following:
(g)
(1)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)
(A)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 servicesA 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)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)A governmental entity that receives historical
geolocation information under subparagraph (A) is not required to provide
notice to a subscriber or
customer.
.
7.Voluntary
disclosures to protect cybersecuritySection 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 disclosuresOn 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.
.
8.Electronic
communication identifiable information
(a)Section 2709(a) of title 18, United States Code, is
amended by striking electronic communication transactional
records
and inserting electronic communication identifiable
information
.
(b)Section 2709(b) of title 18, United States Code, is
amended to read as follows:
(b)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.
.