[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 395 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                 S. 395

To amend title 18, United States Code, to specify the circumstances in 
   which a person may acquire geolocation information and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 15, 2017

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

_______________________________________________________________________

                                 A BILL


 
To amend title 18, United States Code, to specify the circumstances in 
   which a person may acquire geolocation information 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 TITLES.

    This Act may be cited as the ``Geolocational Privacy and 
Surveillance Act'' or the ``GPS Act''.

SEC. 2. PROTECTION OF GEOLOCATION INFORMATION.

    (a) 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 of use as evidence of acquired geolocation 
                            information.
``2604. Emergency situation exception.
``2605. Recovery of civil damages authorized.
``Sec. 2601. Definitions
    ``In this chapter:
            ``(1) Covered service.--The term `covered service' means an 
        electronic communication service, a geolocation information 
        service, or a remote computing service.
            ``(2) Electronic communication service.--The term 
        `electronic communication service' has the meaning given that 
        term in section 2510.
            ``(3) 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).
            ``(4) Geolocation information.--The term `geolocation 
        information' means, with respect to a person, 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 location of the person.
            ``(5) Geolocation information service.--The term 
        `geolocation information service' means the provision of a 
        global positioning service or other 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, 
        including any mobile telephone, global positioning system 
        receiving device, mobile computer, or other similar or 
        successor device.
            ``(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) Person.--The term `person' means any employee or 
        agent of the United States, or any State or political 
        subdivision thereof, and any individual, partnership, 
        association, joint stock company, trust, or corporation.
            ``(9) Remote computing service.--The term `remote computing 
        service' has the meaning given that term in section 2711.
            ``(10) 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.
            ``(11) Wireless communication device.--The term `wireless 
        communication device' means any device that enables access to, 
        or use of, an electronic communication system or service or a 
        covered service, if that device utilizes a radio or other 
        wireless connection to access such system or service.
``Sec. 2602. Interception and disclosure of geolocation information
    ``(a) In General.--
            ``(1) Prohibition on disclosure or use.--Except as 
        otherwise specifically provided in this chapter, it shall be 
        unlawful for any person to--
                    ``(A) intentionally intercept, endeavor to 
                intercept, or procure any other person to intercept or 
                endeavor to intercept, geolocation information 
                pertaining to another person;
                    ``(B) intentionally disclose, or endeavor to 
                disclose, to any other person geolocation information 
                pertaining to another person, knowing or having reason 
                to know that the information was obtained through the 
                interception of such information in violation of this 
                paragraph;
                    ``(C) intentionally use, or endeavor to use, any 
                geolocation information, knowing or having reason to 
                know that the information was obtained through the 
                interception of such information in violation of this 
                paragraph; or
                    ``(D)(i) intentionally disclose, or endeavor to 
                disclose, to any other person the geolocation 
                information pertaining to another person intercepted by 
                means authorized by subsections (b) through (h), except 
                as provided in such subsections;
                    ``(ii) knowing or having reason to know that the 
                information was obtained through the interception of 
                such information in connection with a criminal 
                investigation;
                    ``(iii) having obtained or received the information 
                in connection with a criminal investigation; and
                    ``(iv) with intent to improperly obstruct, impede, 
                or interfere with a duly authorized criminal 
                investigation.
            ``(2) Penalty.--Any person who violates paragraph (1) shall 
        be fined under this title, imprisoned not more than five years, 
        or both.
    ``(b) Exception for Information Acquired in the Normal Course of 
Business.--It shall not be unlawful under this chapter for an officer, 
employee, or agent of a provider of a covered service, whose facilities 
are used in the transmission of geolocation information, to intercept, 
disclose, or use that information in the normal course of the officer, 
employee, or agent's employment while engaged in any activity which is 
a necessary incident to the rendition of service or to the protection 
of the rights or property of the provider of that service, except that 
a provider of a geolocation information service to the public shall not 
utilize service observing or random monitoring except for mechanical or 
service quality control checks.
    ``(c) 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.).
    ``(d) Exception for Consent.--
            ``(1) In general.--It shall not be unlawful under this 
        chapter for a person to intercept geolocation information 
        pertaining to another person if such other person has given 
        prior consent to such interception unless such information is 
        intercepted for the purpose of committing any criminal or 
        tortious act in violation of the Constitution or laws of the 
        United States or of any State.
            ``(2) Children.--The exception in paragraph (1) permits a 
        parent or legal guardian of a child to intercept geolocation 
        information pertaining to that child or to give consent for 
        another person to intercept such information.
    ``(e) Exception for Public Information.--It shall not be unlawful 
under this chapter for any person to intercept or access geolocation 
information relating to another person through any system that is 
configured so that such information is readily accessible to the 
general public.
    ``(f) Exception for Emergency Information.--It shall not be 
unlawful under this chapter for any investigative or law enforcement 
officer or other emergency responder to intercept or access geolocation 
information relating to a person if such information is used--
            ``(1) to respond to a request made by such person for 
        assistance; or
            ``(2) in circumstances in which it is reasonable to believe 
        that the life or safety of the person is threatened, to assist 
        the person.
    ``(g) Exception for Theft or Fraud.--It shall not be unlawful under 
this chapter for a person acting under color of law to intercept 
geolocation information pertaining to the location of another person 
who has unlawfully taken the device sending the geolocation information 
if--
            ``(1) the owner or operator of such device authorizes the 
        interception of the person's geolocation information;
            ``(2) the person acting under color of law is lawfully 
        engaged in an investigation; and
            ``(3) the person acting under color of law has reasonable 
        grounds to believe that the geolocation information of the 
        other person will be relevant to the investigation.
    ``(h) Exception for Warrant.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Court of competent jurisdiction.--The term 
                `court of competent jurisdiction' includes--
                            ``(i) 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; or
                            ``(ii) a court of general criminal 
                        jurisdiction of a State authorized by the law 
                        of that State to issue search warrants.
                    ``(B) Governmental entity.--The term `governmental 
                entity' means a department or agency of the United 
                States or any State or political subdivision thereof.
            ``(2) Warrant.--A governmental entity may intercept 
        geolocation information or require the disclosure by a provider 
        of a covered service of geolocation information only pursuant 
        to 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) by a court of 
        competent jurisdiction, or as otherwise provided in this 
        chapter or the Foreign Intelligence Surveillance Act of 1978 
        (50 U.S.C. 1801 et seq.).
    ``(i) Prohibition on Divulging Geolocation Information.--
            ``(1) In general.--Except as provided in paragraph (2), a 
        person providing a covered service shall not intentionally 
        divulge geolocation information pertaining to another person.
            ``(2) Exceptions.--A person providing a covered service may 
        divulge geolocation information--
                    ``(A) as otherwise authorized in subsections (b) 
                through (h);
                    ``(B) with the lawful consent of such other person;
                    ``(C) to another person employed or authorized, or 
                whose facilities are used, to forward such geolocation 
                information to its destination; or
                    ``(D) which was inadvertently obtained by the 
                provider of the covered service and which appears to 
                pertain to the commission of a crime, if such 
                divulgence is made to a law enforcement agency.
``Sec. 2603. Prohibition of use as evidence of acquired geolocation 
              information
    ``Whenever any geolocation information has been acquired, 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 if the disclosure of that 
information would be in violation of this chapter.
``Sec. 2604. Emergency situation exception
    ``(a) Emergency Situation Exception.--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 geolocation 
information if--
            ``(1) such officer reasonably determines that an emergency 
        situation exists that--
                    ``(A) involves--
                            ``(i) immediate danger of death or serious 
                        physical injury to any person;
                            ``(ii) conspiratorial activities 
                        threatening the national security interest; or
                            ``(iii) conspiratorial activities 
                        characteristic of organized crime; and
                    ``(B) requires geolocation information be 
                intercepted before an order authorizing such 
                interception can, with due diligence, be obtained;
            ``(2) there are grounds upon which an order could be 
        entered to authorize such interception; and
            ``(3) an application for an order approving such 
        interception is made within 48 hours after the interception has 
        occurred or begins to occur.
    ``(b) Failure To Obtain Court Order.--
            ``(1) Termination of acquisition.--In the absence of an 
        order, an interception of geolocation information carried out 
        under subsection (a) shall immediately terminate when the 
        information sought is obtained or when the application for the 
        order is denied, whichever is earlier.
            ``(2) 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 the person named in 
        the application.
``Sec. 2605. Recovery of civil damages authorized
    ``(a) In General.--Any person whose geolocation information is 
intercepted, disclosed, or intentionally used in violation of this 
chapter may in a civil action recover from the person, other than the 
United States, which engaged in that violation such relief as may be 
appropriate.
    ``(b) Relief.--In an action under this section, appropriate relief 
includes--
            ``(1) such preliminary and other equitable or declaratory 
        relief as may be appropriate;
            ``(2) damages under subsection (c) and punitive damages in 
        appropriate cases; 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 and any profits made by the violator as a result of 
        the violation; 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 complete defense against any civil or 
criminal action brought against an individual for conduct in violation 
of this chapter if such individual acted in a good faith reliance on--
            ``(1) a court warrant or order, a grand jury subpoena, a 
        legislative authorization, or a statutory authorization;
            ``(2) a request of an investigative or law enforcement 
        officer under section 2604; or
            ``(3) a good-faith 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.
    ``(g) Improper Disclosure Is Violation.--Any willful disclosure or 
use by an investigative or law enforcement officer or governmental 
entity of information beyond the extent permitted by this chapter is a 
violation of this chapter for purposes of this section.''.
    (b) 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''.
    (c) Conforming Amendments.--Section 3512(a) of title 18, United 
States Code, is amended--
            (1) in paragraph (2)--
                    (A) by redesignating subparagraphs (B), (C), and 
                (D) as subparagraphs (C), (D), and (E), respectively; 
                and
                    (B) 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;''.

SEC. 3. REQUIREMENT FOR SEARCH WARRANTS TO ACQUIRE 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.''.

SEC. 4. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH OBTAINING 
              GEOLOCATION INFORMATION.

    (a) Criminal Violation.--Section 1039(h) of title 18, United States 
Code, is amended--
            (1) in paragraph (2)--
                    (A) in subparagraph (A), by striking ``and'' at the 
                end;
                    (B) in subparagraph (B), by striking the period at 
                the end and inserting a semicolon and ``and''; and
                    (C) by adding at the end the following:
                    ``(C) includes any geolocation information 
                service.'';
            (2) by redesignating paragraph (4) as paragraph (5); and
            (3) by inserting after paragraph (3) the following:
            ``(4) Geolocation information service.--The term 
        `geolocation information service' has the meaning given that 
        term in section 2601.''.
    (b) Conforming Amendments.--
            (1) Definition amendments.--Section 1039(h)(1) of title 18, 
        United States Code, is amended--
                    (A) in the paragraph heading, by inserting ``or 
                gps'' after ``phone''; and
                    (B) in the matter preceding subparagraph (A), by 
                inserting ``or GPS'' after ``phone''.
            (2) Conforming amendments.--Section 1039 of title 18, 
        United States Code, is amended--
                    (A) in the section heading by inserting ``or GPS'' 
                after ``phone'';
                    (B) in subsection (a)--
                            (i) in the matter preceding paragraph (1), 
                        by inserting ``or GPS'' after ``phone''; and
                            (ii) in paragraph (4), by inserting ``or 
                        GPS'' after ``phone'';
                    (C) in subsection (b)--
                            (i) in the subsection heading, by inserting 
                        ``or GPS'' after ``Phone'';
                            (ii) in paragraph (1), by inserting ``or 
                        GPS'' after ``phone'' both places that term 
                        appears; and
                            (iii) in paragraph (2), by inserting ``or 
                        GPS'' after ``phone''; and
                    (D) in subsection (c)--
                            (i) in the subsection heading, by inserting 
                        ``or GPS'' after ``Phone'';
                            (ii) in paragraph (1), by inserting ``or 
                        GPS'' after ``phone'' both places that term 
                        appears; and
                            (iii) in paragraph (2), by inserting ``or 
                        GPS'' after ``phone''.
            (3) Chapter analysis.--The table of sections for chapter 47 
        of title 18, United States Code, is amended by striking the 
        item relating to section 1039 and inserting the following:

``1039. Fraud and related activity in connection with obtaining 
                            confidential phone or GPS records 
                            information of a covered entity.''.
    (c) Sentencing Guidelines.--
            (1) Review and amendment.--Not later than 180 days after 
        the date of enactment of this Act, the United States Sentencing 
        Commission, pursuant to its authority under section 994 of 
        title 28, United States Code, and in accordance with this 
        section, shall review and, if appropriate, amend the Federal 
        sentencing guidelines and policy statements applicable to 
        persons convicted of any offense under section 1039 of title 
        18, United States Code, as amended by this section.
            (2) Authorization.--The United States Sentencing Commission 
        may amend the Federal sentencing guidelines in accordance with 
        the procedures set forth in section 21(a) of the Sentencing Act 
        of 1987 (28 U.S.C. 994 note) as though the authority under that 
        section had not expired.

SEC. 5. STATEMENT OF EXCLUSIVE MEANS OF ACQUIRING GEOLOCATION 
              INFORMATION.

    (a) In General.--No person may acquire 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 
section 3, or the amendments made by this Act, or the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
    (b) Geolocation Information Defined.--In this section, the term 
``geolocation information'' has the meaning given that term in section 
2601 of title 18, United States Code, as added by section 2.
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