[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 983 Introduced in House (IH)]

113th CONGRESS
  1st Session
                                H. R. 983

 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

                             March 6, 2013

Ms. Lofgren (for herself, Mr. Poe of Texas, and Ms. DelBene) 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 ``Online Communications and 
Geolocation Protection Act''.

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) In General.--
            (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 on disclosing geolocation information to 
                            governmental entities.
``2604. Prohibition of use of unlawfully obtained geolocation 
                            information as evidence.
``2605. Recovery of civil damages and administrative discipline 
                            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 a service that 
        generates or uses geolocation information for the provision of 
        a 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 signal or other wireless 
        connection to access or use 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 
        geolocation information service.
``Sec. 2602. Interception and disclosure of geolocation information
    ``(a) In General.--Except as otherwise provided in this chapter, it 
shall be unlawful for any governmental entity to--
            ``(1) intentionally intercept, endeavor to intercept, or 
        direct any person to intercept or endeavor to intercept, 
        geolocation information pertaining to an individual;
            ``(2) intentionally disclose, or endeavor to disclose, or 
        direct any person to disclose or endeavor to disclose 
        geolocation information pertaining to an individual, knowing or 
        having reason to know that the information was obtained in 
        violation of this subsection; or
            ``(3) intentionally use, or endeavor to use, any 
        geolocation information, knowing or having reason to know that 
        the information was obtained in violation of this subsection.
    ``(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 for a governmental entity to intercept, use, or 
        disclose geolocation information pertaining to an individual if 
        that individual has given prior consent to that governmental 
        entity for such interception, use or disclosure.
            ``(2) Children.--A parent or legal guardian of a child may 
        consent on behalf of a child for the purposes of paragraph (1).
    ``(d) Exception for Public Information.--It shall not be unlawful 
under this chapter for a governmental entity to intercept or access 
geolocation information pertaining to an individual through any system 
that is configured so that such information is readily accessible to 
the general public.
    ``(e) Exception for Emergency Assistance.--It shall not be unlawful 
under this chapter for any investigative or law enforcement officer or 
other emergency responder to intercept, access, use, or disclose 
geolocation information pertaining to an individual if such information 
is used--
            ``(1) to respond to a request made by such individual for 
        assistance; or
            ``(2) to assist the individual in circumstances in which it 
        is reasonable to believe that the life or safety of the 
        individual is in jeopardy.
    ``(f) Exception for Warrant.--
            ``(1) In general.--A governmental entity may intercept 
        geolocation information or require the disclosure of 
        geolocation information by a provider of covered services only 
        pursuant to a warrant issued by a court of competent 
        jurisdiction using the procedures described in the Federal 
        Rules of Criminal Procedure (or, in the case of a State court, 
        issued using State warrant procedures), or as otherwise 
        provided in this chapter or the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
            ``(2) Court of competent jurisdiction.--For the purposes of 
        this subsection, the term `court of competent jurisdiction' 
        includes--
                    ``(A) 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
                    ``(B) a court of general criminal jurisdiction of a 
                State authorized by the law of that State to issue 
                search warrants.
    ``(g) Emergency Situation Exception.--
            ``(1) In general.--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 or use geolocation information if--
                    ``(A) such officer reasonably determines that an 
                emergency situation exists that--
                            ``(i) 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
                            ``(ii) requires geolocation information be 
                        intercepted or used before an order authorizing 
                        such interception or use can, with due 
                        diligence, be obtained;
                    ``(B) there are grounds upon which an order could 
                be entered to authorize such interception or use; and
                    ``(C) an application for an order approving such 
                interception or use is made within 48 hours after the 
                interception or use has occurred or begins to occur.
            ``(2) Failure to obtain court order.--
                    ``(A) Termination of acquisition.--In the absence 
                of an order, an interception or use of geolocation 
                information carried out under paragraph (1) shall 
                immediately terminate when the information sought is 
                obtained or when the application for the order is 
                denied, whichever is earlier.
                    ``(B) 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. 2603. Prohibition on disclosing geolocation information to 
              governmental entities
    ``(a) In General.--Except as provided in subsection (b), a person 
providing covered services shall not intentionally disclose to any 
governmental entity geolocation information pertaining to an 
individual.
    ``(b) Exceptions.--A person providing covered services may disclose 
geolocation information--
            ``(1) as otherwise authorized in subsections (b) through 
        (g) of section 2602;
            ``(2) with the lawful consent of--
                    ``(A) the individual to whom the geolocation 
                information pertains; or
                    ``(B) the parent or guardian of a child to whom the 
                geolocation information pertains;
            ``(3) as permitted under section 222(d)(4) of the 
        Communications Act of 1934 (47 U.S.C. 222(d)(4)); or
            ``(4) which was inadvertently obtained by the service 
        provider and which appears to pertain to the commission of a 
        crime, if such disclosure is made to a law enforcement agency.
``Sec. 2604. Prohibition of use of unlawfully obtained geolocation 
              information as evidence
    ``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. 2605. Recovery of civil damages and administrative discipline 
              authorized
    ``(a) In General.--Any individual whose geolocation information is 
intentionally disclosed or used in violation of this chapter may in a 
civil action recover such relief as may be appropriate from the person, 
other than the United States, which engaged in that violation.
    ``(b) Relief.--In an action under this section, appropriate relief 
includes--
            ``(1) such preliminary and other equitable or declaratory 
        relief as the court may deem appropriate;
            ``(2) damages under subsection (c) and punitive damages as 
        the court may deem appropriate; 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; 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 warrant or court order, grand jury subpoena, 
        legislative authorization, or statutory authorization; or
            ``(2) a reasonable 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.''.
            (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 Obtain 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) Statement of Exclusive Means of Obtaining Geolocation 
Information.--
            (1) In general.--No person may obtain 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).
                                 <all>