[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1265 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 1265

 To amend section 2702 of title 18, United States Code, to prevent law 
  enforcement and intelligence agencies from obtaining subscriber or 
    customer records in exchange for anything of value, to address 
 communications and records in the possession of intermediary internet 
               service providers, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 21, 2021

 Mr. Wyden (for himself, Mr. Paul, Mr. Leahy, Mr. Lee, Mr. Markey, Mr. 
Daines, Ms. Baldwin, Ms. Warren, Mr. Brown, Mr. Schatz, Mr. Booker, Mr. 
   Sanders, Mr. Merkley, Mr. Tester, Mr. Heinrich, Ms. Hirono, Mrs. 
 Murray, Mr. Schumer, Mr. Blumenthal, and Ms. Cantwell) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend section 2702 of title 18, United States Code, to prevent law 
  enforcement and intelligence agencies from obtaining subscriber or 
    customer records in exchange for anything of value, to address 
 communications and records in the possession of intermediary internet 
               service providers, 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 ``Fourth Amendment Is Not For Sale 
Act''.

SEC. 2. PROTECTION OF RECORDS HELD BY DATA BROKERS.

    Section 2702 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(e) Prohibition on Obtaining in Exchange for Anything of Value 
Certain Records and Information by Law Enforcement and Intelligence 
Agencies.--
            ``(1) Definitions.--In this subsection--
                    ``(A) the term `covered customer or subscriber 
                record' means a covered record that is--
                            ``(i) disclosed to a third party by--
                                    ``(I) a provider of an electronic 
                                communication service to the public or 
                                a provider of a remote computing 
                                service of which the covered person 
                                with respect to the covered record is a 
                                subscriber or customer; or
                                    ``(II) an intermediary service 
                                provider that delivers, stores, or 
                                processes communications of such 
                                covered person;
                            ``(ii) collected by a third party from an 
                        online account of a covered person; or
                            ``(iii) collected by a third party from or 
                        about an electronic device of a covered person;
                    ``(B) the term `covered person' means--
                            ``(i) a person who is located inside the 
                        United States; or
                            ``(ii) a person--
                                    ``(I) who is located outside the 
                                United States or whose location cannot 
                                be determined; and
                                    ``(II) who is a United States 
                                person, as defined in section 101 of 
                                the Foreign Intelligence Surveillance 
                                Act of 1978 (50 U.S.C. 1801);
                    ``(C) the term `covered record' means a record or 
                other information that--
                            ``(i) pertains to a covered person; and
                            ``(ii) is--
                                    ``(I) a record or other information 
                                described in the matter preceding 
                                paragraph (1) of subsection (c);
                                    ``(II) the contents of a 
                                communication; or
                                    ``(III) location information;
                    ``(D) the term `electronic device' has the meaning 
                given the term `computer' in section 1030(e);
                    ``(E) the term `illegitimately obtained 
                information' means a covered record that--
                            ``(i) was obtained--
                                    ``(I) from a provider of an 
                                electronic communication service to the 
                                public or a provider of a remote 
                                computing service in a manner that--
                                            ``(aa) violates the service 
                                        agreement between the provider 
                                        and customers or subscribers of 
                                        the provider; or
                                            ``(bb) is inconsistent with 
                                        the privacy policy of the 
                                        provider;
                                    ``(II) by deceiving the covered 
                                person whose covered record was 
                                obtained; or
                                    ``(III) through the unauthorized 
                                accessing of an electronic device or 
                                online account; or
                            ``(ii) was--
                                    ``(I) obtained from a provider of 
                                an electronic communication service to 
                                the public, a provider of a remote 
                                computing service, or an intermediary 
                                service provider; and
                                    ``(II) collected, processed, or 
                                shared in violation of a contract 
                                relating to the covered record;
                    ``(F) the term `intelligence community' has the 
                meaning given that term in section 3 of the National 
                Security Act of 1947 (50 U.S.C. 3003);
                    ``(G) the term `location information' means 
                information derived or otherwise calculated from the 
                transmission or reception of a radio signal that 
                reveals the approximate or actual geographic location 
                of a customer, subscriber, or device;
                    ``(H) the term `obtain in exchange for anything of 
                value' means to obtain by purchasing, to receive in 
                connection with services being provided for 
                consideration, or to otherwise obtain in exchange for 
                consideration, including an access fee, service fee, 
                maintenance fee, or licensing fee;
                    ``(I) the term `online account' means an online 
                account with an electronic communication service to the 
                public or remote computing service;
                    ``(J) the term `pertain', with respect to a person, 
                means--
                            ``(i) information that is linked to the 
                        identity of a person; or
                            ``(ii) information--
                                    ``(I) that has been anonymized to 
                                remove links to the identity of a 
                                person; and
                                    ``(II) that, if combined with other 
                                information, could be used to identify 
                                a person; and
                    ``(K) the term `third party' means a person who--
                            ``(i) is not a governmental entity; and
                            ``(ii) in connection with the collection, 
                        disclosure, obtaining, processing, or sharing 
                        of the covered record at issue, was not acting 
                        as--
                                    ``(I) a provider of an electronic 
                                communication service to the public; or
                                    ``(II) a provider of a remote 
                                computing service.
            ``(2) Limitation.--
                    ``(A) In general.--A law enforcement agency of a 
                governmental entity and an element of the intelligence 
                community may not obtain from a third party in exchange 
                for anything of value a covered customer or subscriber 
                record or any illegitimately obtained information.
                    ``(B) Indirectly acquired records and 
                information.--The limitation under subparagraph (A) 
                shall apply without regard to whether the third party 
                possessing the covered customer or subscriber record or 
                illegitimately obtained information is the third party 
                that initially obtained or collected, or is the third 
                party that initially received the disclosure of, the 
                covered customer or subscriber record or illegitimately 
                obtained information.
            ``(3) Limit on sharing between agencies.--An agency of a 
        governmental entity that is not a law enforcement agency or an 
        element of the intelligence community may not provide to a law 
        enforcement agency of a governmental entity or an element of 
        the intelligence community a covered customer or subscriber 
        record or illegitimately obtained information that was obtained 
        from a third party in exchange for anything of value.
            ``(4) Prohibition on use as evidence.--A covered customer 
        or subscriber record or illegitimately obtained information 
        obtained by or provided to a law enforcement agency of a 
        governmental entity or an element of the intelligence community 
        in violation of paragraph (2) or (3), and any evidence derived 
        therefrom, may not 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.
            ``(5) Minimization procedures.--
                    ``(A) In general.--The Attorney General shall adopt 
                specific procedures that are reasonably designed to 
                minimize the acquisition and retention, and prohibit 
                the dissemination, of information pertaining to a 
                covered person that is acquired in violation of 
                paragraph (2) or (3).
                    ``(B) Use by agencies.--If a law enforcement agency 
                of a governmental entity or element of the intelligence 
                community acquires information pertaining to a covered 
                person in violation of paragraph (2) or (3), the law 
                enforcement agency of a governmental entity or element 
                of the intelligence community shall minimize the 
                acquisition and retention, and prohibit the 
                dissemination, of the information in accordance with 
                the procedures adopted under subparagraph (A).''.

SEC. 3. REQUIRED DISCLOSURE.

    Section 2703 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(i) Covered Customer or Subscriber Records and Illegitimately 
Obtained Information.--
            ``(1) Definitions.--In this subsection, the terms `covered 
        customer or subscriber record', `illegitimately obtained 
        information', and `third party' have the meanings given such 
        terms in section 2702(e).
            ``(2) Limitation.--Unless a governmental entity obtains an 
        order in accordance with paragraph (3), the governmental entity 
        may not require a third party to disclose a covered customer or 
        subscriber record or any illegitimately obtained information if 
        a court order would be required for the governmental entity to 
        require a provider of remote computing service or a provider of 
        electronic communication service to the public to disclose such 
        a covered customer or subscriber record or illegitimately 
        obtained information that is a record of a customer or 
        subscriber of the provider.
            ``(3) Orders.--
                    ``(A) In general.--A court may only issue an order 
                requiring a third party to disclose a covered customer 
                or subscriber record or any illegitimately obtained 
                information on the same basis and subject to the same 
                limitations as would apply to a court order to require 
                disclosure by a provider of remote computing service or 
                a provider of electronic communication service to the 
                public of a record of a customer or subscriber of the 
                provider.
                    ``(B) Standard.--For purposes of subparagraph (A), 
                a court shall apply the most stringent standard under 
                Federal statute or the Constitution of the United 
                States that would be applicable to a request for a 
                court order to require a comparable disclosure by a 
                provider of remote computing service or a provider of 
                electronic communication service to the public of a 
                record of a customer or subscriber of the provider.''.

SEC. 4. INTERMEDIARY SERVICE PROVIDERS.

    (a) Definition.--Section 2711 of title 18, United States Code, is 
amended--
            (1) in paragraph (3), by striking ``and'' at the end;
            (2) in paragraph (4), by striking the period at the end and 
        inserting ``; and''; and
            (3) by adding at the end the following:
            ``(5) the term `intermediary service provider' means an 
        entity or facilities owner or operator that directly or 
        indirectly delivers, stores, or processes communications for or 
        on behalf of a provider of electronic communication service to 
        the public or a provider of remote computing service.''.
    (b) Prohibition.--Section 2702(a) of title 18, United States Code, 
is amended--
            (1) in paragraph (1), by striking ``and'' at the end;
            (2) in paragraph (2), by striking ``and'' at the end;
            (3) in paragraph (3), by striking the period at the end and 
        inserting ``; and''; and
            (4) by adding at the end the following:
            ``(4) an intermediary service provider shall not knowingly 
        divulge--
                    ``(A) to any person or entity the contents of a 
                communication while in electronic storage by that 
                provider; or
                    ``(B) to any governmental entity a record or other 
                information pertaining to a subscriber to or customer 
                of, a recipient of a communication from a subscriber to 
                or customer of, or the sender of a communication to a 
                subscriber to or customer of, the provider of 
                electronic communication service to the public or the 
                provider of remote computing service for, or on behalf 
                of, which the intermediary service provider directly or 
                indirectly delivers, transmits, stores, or processes 
                communications.''.

SEC. 5. LIMITS ON SURVEILLANCE CONDUCTED FOR FOREIGN INTELLIGENCE 
              PURPOSES OTHER THAN UNDER THE FOREIGN INTELLIGENCE 
              SURVEILLANCE ACT OF 1978.

    (a) In General.--Section 2511(2)(f) of title 18, United States 
Code, is amended to read as follows:
    ``(f)(i)(A) Nothing contained in this chapter, chapter 121 or 206 
of this title, or section 705 of the Communications Act of 1934 (47 
U.S.C. 151 et seq.) shall be deemed to affect an acquisition or 
activity described in clause (B) that is carried out utilizing a means 
other than electronic surveillance, as defined in section 101 of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
    ``(B) An acquisition or activity described in this clause is--
            ``(I) an acquisition by the United States Government of 
        foreign intelligence information from international or foreign 
        communications that--
                    ``(aa) is acquired pursuant to express statutory 
                authority; or
                    ``(bb) only includes information of persons who are 
                not United States persons and are located outside the 
                United States; or
            ``(II) a foreign intelligence activity involving a foreign 
        electronic communications system that--
                    ``(aa) is conducted pursuant to express statutory 
                authority; or
                    ``(bb) only involves the acquisition by the United 
                States Government of information of persons who are not 
                United States persons and are located outside the 
                United States.
    ``(ii) The procedures in this chapter, chapter 121, and the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be 
the exclusive means by which electronic surveillance, as defined in 
section 101 of such Act, and the interception of domestic wire, oral, 
and electronic communications may be conducted.''.
    (b) Exclusive Means Related to Communications Records.--The Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be 
the exclusive means by which electronic communications transactions 
records, call detail records, or other information from communications 
of United States persons or persons inside the United States are 
acquired for foreign intelligence purposes inside the United States or 
from a person or entity located in the United States that provides 
telecommunications, electronic communication, or remote computing 
services.
    (c) Exclusive Means Related to Location Information, Web Browsing 
History, and Internet Search History.--
            (1) Definition.--In this subsection, the term ``location 
        information'' has the meaning given that term in subsection (e) 
        of section 2702 of title 18, United States Code, as added by 
        section 2 of this Act.
            (2) Exclusive means.--Title I and sections 303, 304, 703, 
        704, and 705 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1801 et seq., 1823, 1824, 1881b, 1881c, 1881d) 
        shall be the exclusive means by which location information, web 
        browsing history, and Internet search history of United States 
        persons or persons inside the United States are acquired for 
        foreign intelligence purposes inside the United States or from 
        a person or entity located in the United States.
    (d) Exclusive Means Related to Fourth Amendment-Protected 
Information.--Title I and sections 303, 304, 703, 704, and 705 of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq., 
1823, 1824, 1881b, 1881c, 1881d) shall be the exclusive means by which 
any information, records, data, or tangible things are acquired for 
foreign intelligence purposes from a person or entity located in the 
United States if the compelled production of such information, records, 
data, or tangible things would require a warrant for law enforcement 
purposes.
    (e) Definition.--In this section, the term ``United States person'' 
has the meaning given that term in section 101 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

SEC. 6. LIMIT ON CIVIL IMMUNITY FOR PROVIDING INFORMATION, FACILITIES, 
              OR TECHNICAL ASSISTANCE TO THE GOVERNMENT ABSENT A COURT 
              ORDER.

    Section 2511(2)(a) of title 18, United States Code, is amended--
            (1) in subparagraph (ii), by striking clause (B) and 
        inserting the following:
            ``(B) a certification in writing--
                    ``(I) by a person specified in section 2518(7) or 
                the Attorney General of the United States;
                    ``(II) that the requirements for an emergency 
                authorization to intercept a wire, oral, or electronic 
                communication under section 2518(7) have been met; and
                    ``(III) that the specified assistance is 
                required,''; and
            (2) by striking subparagraph (iii) and inserting the 
        following:
    ``(iii) For assistance provided pursuant to a certification under 
subparagraph (ii)(B), the limitation on causes of action under the last 
sentence of the matter following subparagraph (ii)(B) shall only apply 
to the extent that the assistance ceased at the earliest of the time 
the application for a court order was denied, the time the 
communication sought was obtained, or 48 hours after the interception 
began.''.
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