[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 607 Reported in Senate (RS)]

                                                        Calendar No. 66
113th CONGRESS
  1st Session
                                 S. 607

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 19, 2013

  Mr. Leahy (for himself and Mr. Lee) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

                             April 25, 2013

                Reported by Mr. Leahy, with an amendment
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 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 2013''.

SEC. 2. CONFIDENTIALITY OF ELECTRONIC COMMUNICATIONS.

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

SEC. 3. ELIMINATION OF 180-DAY RULE; 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.--A 
governmental entity may require the disclosure by a provider of 
electronic communication service or remote computing service of the 
contents of a wire or electronic communication that is in electronic 
storage with or otherwise stored, held, or maintained by the provider 
only if the governmental entity obtains a warrant issued using the 
procedures described in the Federal Rules of Criminal Procedure (or, in 
the case of a State court, issued using State warrant procedures) that 
is issued by a court of competent jurisdiction directing the 
disclosure.
    ``(b) Notice.--Except as provided in section 2705, not later than 
10 business days in the case of a law enforcement agency, or not later 
than 3 business days in the case of any other governmental entity, 
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 or remote computing service under 
subsection (a), 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--
            ``(1) a copy of the warrant; and
            ``(2) a notice that includes the information referred to in 
        clauses (i) and (ii) of section 2705(a)(4)(B).
    ``(c) Records Concerning Electronic Communication Service or Remote 
Computing Service.--
            ``(1) In general.--Subject to paragraph (2), a governmental 
        entity may require a provider of electronic communication 
        service or remote computing 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 using the procedures 
                described in 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 (d);
                    ``(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) Information to be disclosed.--A provider of 
        electronic communication service or remote computing service 
        shall, in response to an administrative subpoena authorized by 
        Federal or State statute, a grand jury, trial, or civil 
        discovery subpoena, or any means authorized under paragraph 
        (1), disclose to a governmental entity the--
                    ``(A) name;
                    ``(B) address;
                    ``(C) local and long distance telephone connection 
                records, or records of session times and durations;
                    ``(D) length of service (including start date) and 
                types of service used;
                    ``(E) telephone or instrument number or other 
                subscriber number or identity, including any 
                temporarily assigned network address; and
                    ``(F) means and source of payment for such service 
                (including any credit card or bank account number), of 
                a subscriber or customer of such service.
            ``(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 adding at the end the following:
    ``(h) Rule of Construction.--Nothing in this section or in section 
2702 shall be construed to limit the authority of a governmental entity 
to use an administrative subpoena authorized under a Federal or State 
statute or to use a Federal or State grand jury, trial, or civil 
discovery subpoena to--
            ``(1) require an originator, addressee, or intended 
        recipient of an electronic communication to disclose the 
        contents of the electronic communication to the governmental 
        entity; or
            ``(2) require an entity that provides electronic 
        communication services to the officers, directors, employees, 
        or agents of the entity (for the purpose of carrying out their 
        duties) to disclose the contents of an electronic communication 
        to or from an officer, director, employee, or agent of the 
        entity to a governmental entity, if the electronic 
        communication is held, stored, or maintained on an electronic 
        communications system owned or operated by the entity.''.
    (b) Technical and Conforming Amendments.--Section 2703(d) of title 
18, United States Code, is amended--
            (1) by striking ``A court order for disclosure under 
        subsection (b) or (c)'' and inserting ``A court order for 
        disclosure under subsection (c)''; and
            (2) by striking ``the contents of a wire or electronic 
        communication, or''.

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(b) for a period of not 
        more than 180 days in the case of a law enforcement agency, or 
        not more than 90 days in the case of any other governmental 
        entity.
            ``(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; or
                    ``(E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
            ``(3) Extension.--Upon request by a governmental entity, a 
        court may grant one or more extensions of the delay of 
        notification granted under paragraph (2) of not more than 180 
        days in the case of a law enforcement agency, or not more than 
        90 days in the case of any other governmental entity.
            ``(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) of the nature of the law enforcement 
                        inquiry with reasonable specificity;
                            ``(ii) that information maintained for the 
                        customer or subscriber by the provider of 
                        electronic communication service or remote 
                        computing service named in the process or 
                        request was supplied to, or requested by, the 
                        governmental entity;
                            ``(iii) of the date on which the warrant 
                        was served on the provider and the date on 
                        which the information was provided by the 
                        provider to the governmental entity;
                            ``(iv) that notification of the customer or 
                        subscriber was delayed;
                            ``(v) the identity of the court authorizing 
                        the delay; and
                            ``(vi) 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 may apply to a court for an order directing a 
        provider of electronic communication service or remote 
        computing service to which a warrant, order, subpoena, or other 
        directive under section 2703 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 180 days in 
        the case of a law enforcement agency, or not more than 90 days 
        in the case of any other governmental entity.
            ``(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; or
                    ``(E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
            ``(3) Extension.--Upon request by a governmental entity, a 
        court may grant one or more extensions of an order granted 
        under paragraph (2) of not more than 180 days in the case of a 
        law enforcement agency, or not more than 90 days in the case of 
        any other governmental entity.
            ``(4) Prior notice to law enforcement.--Upon expiration of 
        the period of delay of notice under this section, and not later 
        than 3 business days before providing notice to a customer or 
        subscriber, a provider of electronic communication service or 
        remote computing service shall notify the governmental entity 
        that obtained the contents of a communication or information or 
        records under section 2703 of the intent of the provider of 
        electronic communication service or remote computing service to 
        notify the customer or subscriber of the existence of the 
        warrant, order, or subpoena seeking that information.
    ``(c) Definition.--In this section and section 2703, the term `law 
enforcement agency' means an agency of the United States, a State, or a 
political subdivision of a State, authorized by law or by a government 
agency to engage in or supervise the prevention, detection, 
investigation, or prosecution of any violation of criminal law, or any 
other Federal or State agency conducting a criminal investigation.''.

<DELETED>SEC. 5. RULE OF CONSTRUCTION.</DELETED>

<DELETED>    Nothing in this Act or an amendment made by this Act shall 
be construed to apply the warrant requirement for contents of a wire or 
electronic communication authorized under this Act or an amendment made 
by this Act to any other section of title 18, United States Code 
(including chapter 119 of such title (commonly known as the ``Wiretap 
Act'')), the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801 et seq.), or any other provision of Federal law.</DELETED>

SEC. 5. EVALUATION BY THE GOVERNMENT ACCOUNTABILITY OFFICE.

    Not later than September 30, 2015, the Comptroller General of the 
United States shall submit to Congress a report regarding the 
disclosure of customer communications and records under section 2703 of 
title 18, United States Code, which shall include--
            (1) an analysis and evaluation of such disclosure under 
        section 2703 of title 18, United States Code, as in effect 
        before the date of enactment of this Act, including--
                    (A) a comprehensive analysis and evaluation 
                regarding the number of individual instances, in each 
                of the 5 years before the year in which this Act is 
                enacted, in which Federal, State, or local law 
                enforcement officers used section 2703 of title 18, 
                United States Code, to obtain information relevant to 
                an ongoing criminal investigation;
                    (B) an analysis of the average length of time taken 
                by a provider of an electronic communication service or 
                a remote computing service to comply with requests by 
                law enforcement officers for information under section 
                2703 of title 18, United States Code;
                    (C) the number of individual instances, in each of 
                the 5 years before the year in which this Act is 
                enacted, in which information was requested by law 
                enforcement officers from a provider of an electronic 
                communication service or a remote computing service 
                under a warrant as authorized under section 2703(a) of 
                title 18, United States Code;
                    (D) the number of individual instances and type of 
                request, in each of the 5 years before the year in 
                which this Act is enacted, in which information was 
                requested by law enforcement officers from a provider 
                of an electronic communication service or a remote 
                computing service under the other information request 
                provisions in section 2703 of title 18, United States 
                Code; and
                    (E) the number of individual instances, in each of 
                the 5 years before the year in which this Act is 
                enacted, in which law enforcement officers requested 
                delayed notification to the subscriber or customer 
                under section 2705 of title 18, United States Code; and
            (2) an analysis and evaluation of such disclosure under 
        section 2703 of title 18, United States Code, as amended by 
        this Act, including--
                    (A) an evaluation of the effects of the amendments 
                to the warrant requirements on judges, court dockets, 
                or any other court operations;
                    (B) a survey of Federal, State, and local judges 
                and law enforcement officers to determine the average 
                length of time required for providers of an electronic 
                communication service or a remote computing service to 
                provide the contents of communications requested under 
                a search warrant, which shall include identifying the 
                number of instances in which a judge was required to 
                order a provider of an electronic communication service 
                or a remote computing service to appear to show cause 
                for failing to comply with a warrant or to issue an 
                order of contempt against a provider of an electronic 
                communication service or a remote computing service for 
                such a failure; and
                    (C) determining whether the amendments to the 
                warrant requirements resulted in an increase in the use 
                of the emergency exception under section 2702(b)(8) of 
                title 18, United States Code.

SEC. 6. RULE OF CONSTRUCTION.

    Nothing in this Act or an amendment made by this Act shall be 
construed to preclude the acquisition by the United States Government 
of--
            (1) the contents of a wire or electronic communication 
        pursuant to other lawful authorities, including the authorities 
        under chapter 119 of title 18 (commonly known as the ``Wiretap 
        Act''), the Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1801 et seq.), or any other provision of Federal law not 
        specifically amended by this Act; or
            (2) records or other information relating to a subscriber 
        or customer of any electronic communications service or remote 
        computing service (not including the content of such 
        communications) pursuant to the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), chapter 119 
        of title 18 (commonly known as the ``Wiretap Act''), or any 
        other provision of Federal law not specifically amended by this 
        Act.
                                                        Calendar No. 66

113th CONGRESS

  1st Session

                                 S. 607

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

                             April 25, 2013

                       Reported with an amendment