[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3888 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  2d Session
                                S. 3888

   To amend title 18, United States Code, to require that notice of 
  criminal surveillance orders be eventually provided to targets, to 
   reform the use of non-disclosure orders to providers, to prohibit 
   indefinite sealing of criminal surveillance orders, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 22, 2022

Mr. Wyden (for himself, Mr. Daines, Mr. Lee, and Mr. Booker) 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 require that notice of 
  criminal surveillance orders be eventually provided to targets, to 
   reform the use of non-disclosure orders to providers, to prohibit 
   indefinite sealing of criminal surveillance orders, 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 ``Government Surveillance Transparency 
Act of 2022''.

SEC. 2. CRIMINAL SURVEILLANCE ORDERS.

    (a) In General.--Part II of title 18, United States Code, is 
amended by inserting after chapter 206 the following:

              ``CHAPTER 206A--CRIMINAL SURVEILLANCE ORDERS

``Sec.
``3131. Definitions.
``3132. Criminal surveillance orders.
``3133. Request for unsealing or challenging redactions.
``Sec. 3131. Definitions
    ``In this chapter:
            ``(1) Application.--The term `application'--
                    ``(A) means an application for a criminal 
                surveillance order; and
                    ``(B) includes all supporting affidavits and 
                exhibits.
            ``(2) Pen register; trap and trace device.--The terms `pen 
        register', and `trap and trace device' have the meanings given 
        the terms in section 3127.
            ``(3) Criminal surveillance order.--The term `criminal 
        surveillance order' means--
                    ``(A) an order authorizing or approving the 
                interception of a wire communication, oral 
                communication, or electronic communication under 
                chapter 119 or under an equivalent State law;
                    ``(B) an order authorizing or approving the 
                installation and use of a pen register or a trap and 
                trace device under chapter 206 or under an equivalent 
                State law;
                    ``(C) an order for the installation of a mobile 
                tracking device under section 3117;
                    ``(D) an order for disclosure under chapter 121;
                    ``(E) an order for a delay of notification or 
                nondisclosure under section 2705;
                    ``(F) a search or seizure warrant issued using the 
                procedures described in the Federal Rules of Criminal 
                Procedure or in the case of a State or Tribal court, 
                issued using State or Tribal warrant procedures;
                    ``(G) in the case of a court-martial or other 
                proceeding under chapter 47 of title 10 (Uniform Code 
                of Military Justice), a warrant or order issued under 
                section 846 of that title;
                    ``(H) a warrant under section 3103a;
                    ``(I) an order under section 1651 of title 28;
                    ``(J) an order for third party assistance under 
                section 2518(4) or section 3124; or
                    ``(K) an order to enforce the assistance capability 
                and capacity requirements under section 2522.
            ``(4) Electronic communication; oral communication; wire 
        communication.--The terms `electronic communication', `oral 
        communication', and `wire communication' have the meanings 
        given the terms in section 2510.
            ``(5) Indian tribe.--the term `Indian Tribe' has the 
        meaning given such term in section 102 of the Federally 
        Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).
            ``(6) Inventory.--The term `inventory' means the inventory 
        and other materials--
                    ``(A) returned to a Federal, State, or Tribal court 
                or a court-martial or other proceeding under chapter 47 
                of title 10 (Uniform Code of Military Justice) in 
                connection with the execution of a criminal 
                surveillance order (including under paragraph (1)(D) or 
                (2)(B) of rule 41(f) of the Federal Rules of Criminal 
                Procedure, under comparable State warrant procedures, 
                or under procedures applicable to a court-martial or 
                other proceeding under chapter 47 of title 10); or
                    ``(B) provided to persons and other parties 
                described in section 2518(8)(d).
            ``(7) State.--The term `State' means each of the several 
        States of the United States, the District of Columbia, the 
        Commonwealth of Puerto Rico, American Samoa, the Commonwealth 
        of the Northern Mariana Islands, Guam, and the United States 
        Virgin Islands.
            ``(8) Substantially prevails.--The term `substantially 
        prevails' has the meaning given the term in section 
        552(a)(4)(E) of title 5.
``Sec. 3132. Criminal surveillance orders
    ``(a) Limitation on Sealing.--
            ``(1) In general.--Except as provided in paragraph (2), a 
        court may not seal a criminal surveillance order, application, 
        or inventory for a period that extends after the later of--
                    ``(A) date the order is executed; or
                    ``(B) the date on which the authorized surveillance 
                ends.
            ``(2) Exceptions.--
                    ``(A) In general.--An applicant for a criminal 
                surveillance order may file a written request for the 
                court to seal the criminal surveillance order, the 
                application, or the inventory for a period not to 
                exceed 180 days after the later of the date the order 
                is executed or the date on which the authorized 
                surveillance ends, which request the court shall grant 
                if the applicant certifies that there is reason to 
                believe that failure to seal will have an adverse 
                result described in subparagraph (B).
                    ``(B) Adverse result.--
                            ``(i) In general.--An adverse result 
                        described in this subparagraph is--
                                    ``(I) endangering the life or 
                                physical safety of an individual;
                                    ``(II) flight from prosecution;
                                    ``(III) destruction of or tampering 
                                with evidence;
                                    ``(IV) intimidation of potential 
                                witnesses; or
                                    ``(V) otherwise seriously 
                                jeopardizing the investigation to which 
                                the criminal surveillance order relates 
                                or unduly delaying a trial resulting 
                                from the investigation.
                            ``(ii) Other requirements.--
                                    ``(I) In general.--When certifying 
                                an adverse result, the applicant shall 
                                certify that there is reason to believe 
                                that the person whose information is 
                                targeted by the order does not know--
                                            ``(aa) about the 
                                        investigation; and
                                            ``(bb) that they are a 
                                        target or person of interest in 
                                        the investigation.
                                    ``(II) Failure to certify.--If the 
                                applicant does not satisfy the 
                                requirements of subclause (I)--
                                            ``(aa) the applicant must 
                                        follow the higher standard of 
                                        judicial review required by 
                                        subparagraph (C)(ii); and
                                            ``(bb) the failure to 
                                        satisfy such requirements shall 
                                        be disclosed in both the 
                                        criminal surveillance order and 
                                        any preclusion of notice order 
                                        issued for that criminal 
                                        surveillance order.
                            ``(iii) Review by court.--The court may, in 
                        its discretion, require the government to 
                        provide the factual basis for the certification 
                        described in clause (i) and may review that 
                        factual basis for sufficiency.
                            ``(iv) Notification.--
                                    ``(I) In general.--For any criminal 
                                surveillance order, application, or 
                                inventory that is sealed at the 
                                Government's request, the Government 
                                shall promptly notify the court if the 
                                Government no longer has reason to 
                                believe that removal of a seal will 
                                have an adverse result described in 
                                this subparagraph.
                                    ``(II) Unsealing.--After being 
                                notified by the Government under 
                                subclause (I), the court shall unseal 
                                the criminal surveillance order, 
                                application, or inventory.
                    ``(C) Extensions.--
                            ``(i) In general.--The court may grant a 
                        single extension of a sealing order for up to 
                        180 days, upon the applicant's motion, based on 
                        a renewed certification that failure to extend 
                        the sealing period will have an adverse result 
                        described in subparagraph (B).
                            ``(ii) Heightened judicial review of 
                        subsequent extensions.--
                                    ``(I) In general.--For any 
                                extension after an extension under 
                                clause (i), the court may grant an 
                                extension of a sealing order for up to 
                                180 days, upon the applicant's motion, 
                                if the applicant--
                                            ``(aa) demonstrates--

                                                    ``(AA) a 
                                                particularized showing 
                                                that failure to extend 
                                                the sealing period will 
                                                have an adverse result 
                                                described in 
                                                subparagraph (B); and

                                                    ``(BB) a 
                                                particularized showing 
                                                that the adverse result 
                                                would not be avoided by 
                                                redaction of specified 
                                                words, phrases, or 
                                                passages in the 
                                                criminal surveillance 
                                                order, application, or 
                                                inventory; and

                                            ``(bb) details--

                                                    ``(AA) the nature 
                                                of the investigation;

                                                    ``(BB) the 
                                                suspected crimes;

                                                    ``(CC) the name of 
                                                the target; and

                                                    ``(DD) specific 
                                                facts that substantiate 
                                                the need for the 
                                                extension.

                                    ``(II) Redacted documents.--
                                            ``(aa) In general.--If the 
                                        court determines that an 
                                        applicant has met the 
                                        requirements of subitem (AA) of 
                                        subclause (I)(aa), but not the 
                                        requirements of subitem (BB) of 
                                        subclause (I)(aa), the court 
                                        shall order the applicant to 
                                        submit proposed redactions to 
                                        each sealed document.
                                            ``(bb) Disposition.--After 
                                        considering the proposed 
                                        redactions of the applicant, if 
                                        any, the court may order the 
                                        applicant to refile 1 or more 
                                        sealed documents with such 
                                        redactions as the court finds 
                                        appropriate, direct the clerk 
                                        to unseal the entirety of 1 or 
                                        more sealed documents, or order 
                                        that 1 or more sealed documents 
                                        remain under seal.
                    ``(D) Sealing of rejected applications and 
                unexecuted criminal surveillance orders.--A court may, 
                pursuant to subparagraph (A), seal an unexecuted 
                criminal surveillance order, or a rejected application.
                    ``(E) Challenge of adverse result certification or 
                extension.--
                            ``(i) In general.--Any person subject to 
                        and seeking to challenge a preclusion of notice 
                        order or any person seeking to unseal a 
                        surveillance order, application, or inventory 
                        may challenge--
                                    ``(I) a certification of the 
                                adverse result under this paragraph; or
                                    ``(II) the particularized showings 
                                and detailed information necessary for 
                                a second and subsequent extension.
                            ``(ii) Heightened standard.--If an order 
                        under this paragraph or a preclusion of notice 
                        order for a subpoena or emergency request is 
                        issued earlier than 1 year before the date on 
                        which a challenge under clause (i) is made, the 
                        requirements of subparagraph (C)(ii) shall 
                        apply to a warrant or order sealed in 
                        accordance with chapter 206A or the subpoena or 
                        emergency request.
                            ``(iii) Costs.--If a person substantially 
                        prevails in a challenge under this 
                        subparagraph, the court shall order the 
                        applicant for the criminal surveillance order 
                        at issue to pay the litigation costs of the 
                        person (including reasonable attorney's fees).
    ``(b) Docketing and Publication of Criminal Surveillance Orders, 
Applications, Inventories, and Associated Docket Records.--
            ``(1) Docket records.--Except as provided in paragraph (2), 
        regardless of whether a court seals a criminal surveillance 
        order or application under this section, the public docket 
        record for any criminal surveillance case shall--
                    ``(A) be made available as an open Government data 
                asset and under an open license, as such terms are 
                defined in section 3502 of title 44, and in a manner 
                that facilitates downloading docket records in bulk, in 
                accordance with rules promulgated by the Judicial 
                Conference of the United States, after consultation 
                with the National Institute of Standards and 
                Technology, the Administrator of General Services, the 
                Electronic Public Access Public User Group, private 
                entities offering electronic case management software, 
                the National Center for State Courts, and the National 
                American Indian Court Judges Association, on the 
                website of the court; and
                    ``(B) include, at a minimum--
                            ``(i) the date and time the application was 
                        filed, the order was entered, and the warrant 
                        was returned to the court, where applicable;
                            ``(ii) the type of order, including--
                                    ``(I) the statutory authority under 
                                which the order was issued;
                                    ``(II) the type of crime under 
                                investigation;
                                    ``(III) the investigating agency;
                                    ``(IV) the duration of the 
                                requested surveillance if any;
                                    ``(V) whether sealing and deferred 
                                notice were requested, if so for how 
                                long;
                                    ``(VI) whether an order for third 
                                party assistance was requested; and
                                    ``(VII) disposition by the court, 
                                whether granted, modified, or denied;
                            ``(iii) an index describing any subsequent 
                        filings or orders related to the case;
                            ``(iv) the unique case number in accordance 
                        with paragraph (3); and
                            ``(v) the date on which the seal will 
                        expire (unless extended pursuant to subsection 
                        (a)(2)(C)).
            ``(2) Showing of adverse result.--If an applicant in a 
        sealed case demonstrates that public disclosure of any docket 
        item listed in paragraph (1)(B)(ii) will have an adverse result 
        described in subsection (a)(2)(B), the court may direct the 
        clerk to withhold that item from the public docket record until 
        the sealing order expires.
            ``(3) Case number and caption.--
                    ``(A) In general.--A court shall assign for each 
                application--
                            ``(i) a unique case number for every 
                        identified target, including for each unique 
                        street address, parcel, person, phone number, 
                        device, or account targeted; and
                            ``(ii) a case caption providing only 
                        generic information about the type of order 
                        sought and the target of the order.
                    ``(B) Requirements.--A court shall assign a case 
                number and case caption under subparagraph (A) in 
                accordance with rules promulgated by the Judicial 
                Conference of the United States, in consultation with 
                the Electronic Public Access Public User Group, or in 
                the case of a State court, in accordance with rules 
                promulgated by the highest court of the State, and in 
                the case of a Tribal court, in accordance with rules 
                promulgated by the highest court of the Indian Tribe.
            ``(4) Compliance with the rehabilitation act of 1973.--Each 
        criminal surveillance order, application, inventory, and public 
        docket record for any criminal surveillance case required under 
        this subsection shall be published in a form that complies with 
        section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d).
            ``(5) Nondisclosure orders.--When applying for an order for 
        nondisclosure under section 2705, to prevent the disclosure of 
        a subpoena--
                    ``(A) the applicant for the order shall include a 
                copy of the subpoena; and
                    ``(B) the court shall docket the subpoena as part 
                of the application for the order.
            ``(6) Automatic unsealing and notification.--The court 
        shall employ a technical mechanism to automatically--
                    ``(A) unseal criminal surveillance orders not later 
                than the end of the next business day after the seal 
                expires; and
                    ``(B) provide notice, 10 business days before 
                scheduled unsealing, to the law enforcement agency that 
                filed the application for the criminal surveillance 
                order.
    ``(c) Filing.--An application and the inventory shall be filed 
electronically.
``Sec. 3133. Request for unsealing or challenging redactions
    ``(a) In General.--Any person may submit a request to a court to--
            ``(1) unseal an application for a criminal surveillance 
        order, a criminal surveillance order, or an inventory; or
            ``(2) challenge a redaction under section 
        3132(a)(2)(C)(ii)(II).
    ``(b) Form.--A request described in subsection (a) may be submitted 
as part of--
            ``(1) the particular criminal surveillance matter, 
        including as a motion to unseal; or
            ``(2) as a stand-alone, separate case.
    ``(c) Multiple Applications and Orders Unsealed.--A request 
described in subsection (a) may include more than 1 application for a 
criminal surveillance order, criminal surveillance order, or an 
inventory.''.
    (b) Technical and Conforming Amendments.--
            (1) In general.--Title 18, United States Code, is amended--
                    (A) in section 2518(8)--
                            (i) by striking paragraph (b); and
                            (ii) by redesignating paragraphs (c) and 
                        (d) as subparagraphs (b) and (c), respectively;
                    (B) in section 3123, by striking subsection (d); 
                and
                    (C) in section 3103a(b)(1)--
                            (i) by striking ``2705'' and inserting 
                        ``3132)''; and
                            (ii) by striking ``trial)'' and inserting 
                        ``trial''.
            (2) E-government act of 2002.--
                    (A) In general.--Section 205 of the E-Government 
                Act of 2002 (44 U.S.C. 3501 note) is amended--
                            (i) in subsection (a), by adding at the end 
                        the following:
            ``(8) Access to the substance of all applications for 
        criminal surveillance orders, criminal surveillance orders, and 
        inventories in a text searchable format in accordance with 
        chapter 206A of title 18, United States Code.''; and
                            (ii) in subsection (c)--
                                    (I) by striking paragraph (2) and 
                                inserting the following:
            ``(2) Exceptions.--
                    ``(A) In general.--Documents that are filed that 
                are not otherwise available to the public, such as 
                documents filed under seal, shall not be made available 
                online.
                    ``(B) Criminal surveillance orders.--Subparagraph 
                (A) shall not apply to applications for criminal 
                surveillance orders, criminal surveillance orders, and 
                inventories that are publicly available in accordance 
                with chapter 206A of title 18, United States Code.''; 
                and
                                    (II) in paragraph (3), by adding at 
                                the end the following:
                    ``(D) The Supreme Court shall update the rules 
                prescribed under subparagraph (A) to address personal 
                information included in criminal surveillance orders, 
                applications, and inventories that are made available 
                to the public.''.
            (3) Table of chapters.--The table of chapters for part II 
        of title 18, United States Code, is amended by inserting after 
        the item relating to chapter 206 the following:

``206A. Criminal surveillance orders........................    3121''.
    (c) Effective Date.--
            (1) In general.--Except as provided in paragraphs (2) and 
        (3), the amendments made by this section shall take effect on 
        the date that is 2 years after the date of enactment of this 
        Act.
            (2) Delayed applicability for certain state and tribal 
        courts.--
                    (A) In general.--Subsections (b)(1)(A) and (c) of 
                section 3132 of title 18, United States Code, as added 
                by subsection (a) of this section, shall apply on and 
                after the date that is 4 years after the date of 
                enactment of this Act--
                            (i) to a State or Tribal court that, on the 
                        date of enactment of this Act, does not offer 
                        electronic docketing or public online access to 
                        dockets; or
                            (ii) any State or Tribal court that 
                        certifies that the court needs more time to 
                        comply with the requirements of those 
                        subsections.
            (3) Authority to delay electronic filing.--
                    (A) Certification.--
                            (i) Federal courts.--The application of 
                        subsection (c) of section 3132 of title 18, 
                        United States Code, as added by subsection (a) 
                        of this section, to Federal courts under 
                        paragraph (1) of this subsection shall be 
                        delayed for 1 year if the Director of the 
                        Administrative Office of the United States 
                        Courts certifies that the system used by 
                        Federal courts for electronic filing is not 
                        sufficiently secure.
                            (ii) State and tribal courts.--The 
                        application of subsection (c) of section 3132 
                        of title 18, United States Code, as added by 
                        subsection (a) of this section, to a State or 
                        Tribal court under paragraph (1) or (2) of this 
                        subsection, as applicable, shall be delayed for 
                        1 year if the chief judge of the highest court 
                        of the State or Tribe certifies that the system 
                        used by the State or Tribal court for 
                        electronic filing is not sufficiently secure.
                    (B) Contents.--A certification under subparagraph 
                (A) shall include an estimate of the date by which the 
                electronic filing system of the applicable court will 
                be sufficiently secure.
                    (C) Renewal of delay.--The delay of the application 
                of subsection (c) of section 3132 of title 18, United 
                States Code, as added by subsection (a) of this 
                section, to Federal courts or to a State or Tribal 
                court may be delayed for 1 or more additional 1-year 
                periods if the Director of the Administrative Office of 
                the United States Courts or the chief judge of the 
                highest court of the State or Tribe, respectively, 
                submits an additional certification in accordance with 
                subparagraphs (A) and (B).
                    (D) Publication.--Any certification under this 
                paragraph shall be--
                            (i) made available on the website of the 
                        court system with respect to which the 
                        certification is submitted; and
                            (ii) submitted to the Committee on the 
                        Judiciary of the Senate and the Committee on 
                        the Judiciary of the House of Representatives.
    (d) Applicability.--
            (1) Definitions.--In this subsection, the terms 
        ``application'', ``criminal surveillance order'', and 
        ``inventory'' have the meanings given such terms in section 
        3131 of title 18, United States Code, as added by subsection 
        (a).
            (2) Application.--The amendments made by this section shall 
        apply to--
                    (A) any application filed or inventory returned on 
                or after the date described in subsection (d); and
                    (B) any criminal surveillance order entered on or 
                after the date described in subsection (d).
            (3) Rule of construction regarding unsealing.--Nothing in 
        the amendments made by this section shall be construed to 
        prohibit a court from unsealing--
                    (A) a criminal surveillance order entered or 
                inventory returned before the date described in 
                subsection (d); or
                    (B) an application for a criminal surveillance 
                order made before the date described in subsection (d).
            (4) Rule of construction regarding interpretation.--The 
        amendments made by this section shall be liberally construed in 
        favor of public access to documents, to the extent possible.

SEC. 3. NOTICE TO COURTS OF UNLAWFUL SURVEILLANCE.

    (a) Required Disclosure of Customer Communications or Records.--
Section 2703(d) of title 18, United States Code, is amended--
            (1) by striking ``A court order'' and inserting the 
        following:
            ``(1) In general.--A court order''; and
            (2) by adding at the end the following:
            ``(2) Required inventory.--A court order for disclosure 
        issued under subsection (b) or (c) shall require an inventory 
        described in rule 41(f)(1)(B) of the Federal Rules of Criminal 
        Procedure, or any successor thereto, be promptly returned to 
        the court if the provider disclosed to the government any data 
        not authorized by the court.''.
    (b) Issuance of an Order for a Pen Register or a Trap and Trace 
Device.--Section 3123(b) of title 18, United States Code, is amended--
            (1) in paragraph (1)(D), by striking ``and'' at the end;
            (2) in paragraph (2), by striking the period at the end and 
        inserting ``; and''; and
            (3) by adding at the end the following:
            ``(3) shall require an inventory described in rule 
        41(f)(1)(B) of the Federal Rules of Criminal Procedure, or any 
        successor thereto, be promptly returned to the court if--
                    ``(A) the provider disclosed to the government any 
                electronic data not authorized by the court; or
                    ``(B) the government obtained dialing, routing, 
                addressing, or signaling information that was not 
                authorized by the court or in a manner that exceeded 
                the authorization granted by the court.''.
    (c) Rule 41.--Rule 41(f)(1)(B) of the Federal Rules of Criminal 
Procedure is amended by inserting after the period at the end the 
following:
        ``If an inventory is required pursuant to this rule, or if an 
        inventory is required by section 2703(d)(2) of title 18, United 
        States Code, or section 3123(b)(3) of that title, the inventory 
        shall--
                            ``(i) disclose whether the provider 
                        disclosed to the government any electronic data 
                        not authorized by the court and, if so, provide 
                        detailed information regarding the disclosure; 
                        and
                            ``(ii) disclose whether the government 
                        searched persons or property, including 
                        accounts or electronic devices, or obtained 
                        dialing, routing, addressing, or signaling 
                        information not authorized by the court or in a 
                        manner that exceeded the authorization granted 
                        by the court and, if so, provide detailed 
                        information regarding the search.''.

SEC. 4. NOTICE TO SUBJECTS OF LAW ENFORCEMENT SURVEILLANCE.

    (a) In General.--Section 2703 of title 18, United States Code, is 
amended--
            (1) in subsection (a), in the first sentence--
                    (A) by inserting ``and in accordance with the 
                requirements for executing and returning a warrant'' 
                after ``the procedures'';
                    (B) by inserting ``and execution and return'' after 
                ``State warrant''; and
                    (C) by inserting ``and in accordance with the 
                requirements for executing and returning such a 
                warrant'' after ``that title'';
            (2) in subsection (b)--
                    (A) in paragraph (1)
                            (i) in subparagraph (A)--
                                    (I) by striking ``without required 
                                notice to the subscriber or 
                                customer,'';
                                    (II) by inserting ``and in 
                                accordance with the requirements for 
                                executing and returning a warrant'' 
                                after ``the procedures'';
                                    (III) by inserting ``and execution 
                                and return'' after ``State warrant''; 
                                and
                                    (IV) by inserting ``and in 
                                accordance with the requirements for 
                                executing and returning such a 
                                warrant'' after ``that title''; and
                            (ii) in subparagraph (B)--
                                    (I) in clause (ii), by striking the 
                                semicolon at the end and inserting a 
                                period; and
                                    (II) in the matter following clause 
                                (ii), by striking ``except that delayed 
                                notice may be given pursuant to section 
                                2705 of this title.''; and
                    (B) by adding at the end the following:
    ``(3) Notice may not be delayed pursuant to section 2705 for a 
disclosure under paragraph (1)(B)(i).'';
            (3) in subsection (c)--
                    (A) in paragraph (1)(A)--
                            (i) by inserting ``and in accordance with 
                        the requirements for executing and returning a 
                        warrant'' after ``the procedures'';
                            (ii) by inserting ``and execution and 
                        return'' after ``State warrant''; and
                            (iii) by inserting ``and in accordance with 
                        the requirements for executing and returning 
                        such a warrant'' after ``that title''; and
                    (B) by striking paragraph (3);
            (4) in subsection (d), as amended by section 3(a) of this 
        Act, by adding at the end the following:
            ``(3) Requirements.--Orders under this subsection shall be 
        issued in accordance with the requirements for executing and 
        returning a warrant under the Federal Rules of Criminal 
        Procedure.''; and
            (5) by adding at the end the following:
    ``(i) Service.--
            ``(1) In general.--A governmental entity receiving records 
        or information under subsection (a), (b), or (c) of this 
        section or seeking an order under section 3123 shall provide 
        notice prior to conducting the court-authorized surveillance to 
        the subscriber or customer or the person described in 
        subsection (b)(1)(A) of that section, as applicable, unless 
        notice is delayed in accordance with section 2705. If prior 
        notice is infeasible due to inadequate contact information, the 
        governmental entity shall provide the required notice within 7 
        days after receipt of adequate contact information from the 
        provider.
            ``(2) Other requirements.--For purposes of serving a copy 
        of a warrant or order described in this section and a receipt 
        for the warrant or order--
                    ``(A) the person or persons whose wire or 
                electronic communications are obtained under the 
                warrant or order shall be the person or persons whose 
                property was searched or who possessed the information 
                that was seized or copied; and
                    ``(B) service of the copy of the warrant or order 
                and the receipt may only be delayed in accordance with 
                section 2705.''.
    (b) Writs.--Section 1651 of title 28, United States Code, is 
amended by adding at the end the following:
    ``(c) In seeking an order to a third party under this section, the 
Federal Government shall comply with any requirement for notice 
applicable to warrants issued under the Federal Rules of Criminal 
Procedure.''.
    (c) Voluntary Disclosure of Customer Communications or Records.--
Section 2702 of title 18, United States Code, is amended by adding at 
the end the following:
    ``(e) Notice.--If a governmental entity requests and receives a 
voluntary disclosure from a provider described in subsection (a)--
            ``(1) the contents of communications pursuant to subsection 
        (b)(8); or
            ``(2) a record or other information pertaining to a 
        subscriber to or customer of such service pursuant to 
        subsection (c)(4),
the governmental entity shall within 7 days provide notice to the 
subscriber or customer, unless notice is delayed in accordance with 
section 2705.''.

SEC. 5. DELAY AND PRECLUSION OF REQUIRED NOTICE.

    (a) In General.--Section 2705 of title 18, United States Code, is 
amended to read as follows:
``Sec. 2705. Delay and preclusion of notice
    ``(a) Delay of Required Notice to Customer or Subscriber.--
            ``(1) In general.--A governmental entity acting under 
        section 2702, 2703, or section 3123 may apply to a court for an 
        order delaying the required notice to the person whose wire or 
        electronic communications or records or information are 
        obtained.
            ``(2) Warrants and orders.--The court may enter an order 
        described in paragraph (1) with respect to a warrant or order 
        only if the warrant or order is sealed in accordance with 
        chapter 206A, and only for the period during which the sealing 
        order is in effect.
            ``(3) Subpoenas and emergency requests.--
                    ``(A) In general.--The court shall enter an order 
                described in paragraph (1) with respect to a subpoena 
                or emergency request for a period not to exceed 180 
                days after the return date of the subpoena or the 
                emergency request if the governmental entity certifies 
                that there is reason to believe that failure to issue 
                the order will have an adverse result described in 
                section 3132(a)(2)(B).
                    ``(B) Extensions.--
                            ``(i) In general.--The court shall grant a 
                        single extension of an order described in 
                        paragraph (1) with respect to a subpoena or 
                        emergency request for a period not to exceed 
                        180 days upon the governmental entity's motion, 
                        based on a renewed certification that failure 
                        to extend the order will have an adverse result 
                        described in section 3132(a)(2)(B).
                            ``(ii) Subsequent extensions.--
                                    ``(I) In general.--For any 
                                extension after an extension under 
                                clause (i), the court may grant an 
                                extension of an order described in 
                                paragraph (1) with respect to a 
                                subpoena or emergency request for up to 
                                180 days, upon the governmental 
                                entity's motion, if the governmental 
                                entity demonstrates a particularized 
                                showing described in subitems (AA) and 
                                (BB) of section 3132(a)(2)(C)(I)(aa) 
                                and details the information described 
                                in item (bb) of section 
                                3132(a)(2)(C)(I).
                                    ``(II) Redacted documents.--The 
                                court shall consider and order 
                                redactions under this clause in 
                                accordance with the procedures under 
                                section 3132(a)(2)(C)(II).
                    ``(C) Review by court.--The court may, in its 
                discretion, require the governmental entity to provide 
                the factual basis for the certification described in 
                subparagraph (A) and may review that factual basis for 
                sufficiency.
                    ``(D) Notification.--
                            ``(i) In general.--A governmental entity 
                        shall promptly notify the court once the 
                        governmental entity no longer has reason to 
                        believe that the order is necessary to prevent 
                        an adverse result described in section 
                        3132(a)(2)(B).
                            ``(ii) Revocation.--After being notified by 
                        the governmental entity under clause (i), the 
                        court shall revoke the order.
    ``(b) Preclusion of Notice to Subject of Governmental Access.--
            ``(1) Authority.--
                    ``(A) In general.--Except as provided in paragraph 
                (2) a governmental entity acting under section 2703 or 
                section 3123 may apply to a court for--
                            ``(i) an order commanding a provider of 
                        electronic communications service or remote 
                        computing service to whom a criminal 
                        surveillance order, as defined in section 3131, 
                        or subpoena is directed, not to notify any 
                        other person of the existence of the criminal 
                        surveillance order or subpoena; or
                            ``(ii) an order commanding a person owning 
                        or leasing the line or other facility to which 
                        the pen register or a trap and trace device is 
                        attached or applied, or who is obligated by the 
                        order to provide assistance to the applicant, 
                        not to notify any other person of the existence 
                        of a pen register or trap and trace device, as 
                        such terms are defined in section 3127.
                    ``(B) Criminal surveillance orders.--The court may 
                enter an order described in subparagraph (A) with 
                respect to a criminal surveillance order only if the 
                criminal surveillance order is sealed in accordance 
                with chapter 206A, and only for the period during which 
                the sealing order is in effect.
                    ``(C) Subpoenas.--
                            ``(i) In general.--The court shall enter an 
                        order described in subparagraph (A) with 
                        respect to a subpoena for a period not to 
                        exceed 180 days after the return date of the 
                        subpoena if the governmental entity certifies 
                        that there is reason to believe that failure to 
                        issue the order will have an adverse result 
                        described in section 3132(a)(2)(B).
                            ``(ii) Extensions.--
                                    ``(I) In general.--The court shall 
                                grant a single extension of an order 
                                described in subparagraph (A) with 
                                respect to a subpoena for a period not 
                                to exceed 180 days upon the 
                                governmental entity's motion, based on 
                                a renewed certification that failure to 
                                extend the order will have an adverse 
                                result described in section 
                                3132(a)(2)(B).
                                    ``(II) Subsequent extensions.--
                                            ``(aa) In general.--For any 
                                        extension after an extension 
                                        under subclause (I), the court 
                                        may grant an extension of an 
                                        order described in subparagraph 
                                        (A) with respect to a subpoena 
                                        for up to 180 days, upon the 
                                        governmental entity's motion, 
                                        if the governmental entity 
                                        demonstrates a particularized 
                                        showing described in subitems 
                                        (AA) and (BB) of section 
                                        3132(a)(2)(C)(I)(aa) and 
                                        details the information 
                                        described in item (bb) of 
                                        section 3132(a)(2)(C)(I).
                                            ``(bb) Redacted 
                                        documents.--The court shall 
                                        consider and order redactions 
                                        under this subclause in 
                                        accordance with the procedures 
                                        under section 
                                        3132(a)(2)(C)(II).
                            ``(iii) Review by court.--The court may, in 
                        its discretion, require the governmental entity 
                        to provide the factual basis for the 
                        certification described in clause (i) and may 
                        review that factual basis for sufficiency.
                            ``(iv) Notification.--
                                    ``(I) In general.--A governmental 
                                entity shall promptly notify the court 
                                once the governmental entity no longer 
                                has reason to believe that the order is 
                                necessary to prevent an adverse result 
                                described in section 3132(a)(2)(B).
                                    ``(II) Revocation.--After being 
                                notified by the governmental entity, 
                                the court shall revoke the order.
                    ``(D) Limitations.--Preclusion of notice orders 
                that may be issued only under subparagraph (A)(i) to 
                criminal surveillance orders or subpoenas that are 
                listed in the preclusion of notice order.
            ``(2) Exceptions.--Paragraph (1) shall not apply to--
                    ``(A) any person to whom disclosure is necessary in 
                order to comply with the request;
                    ``(B) an attorney in order to obtain legal advice 
                or assistance regarding the request; or
                    ``(C) any other person as permitted by the court.
            ``(3) Rule of construction.--Nothing in this subsection may 
        be construed to prohibit a recipient of an order under this 
        subsection from challenging the order on grounds that the order 
        violates the Constitution of the United States or, in the case 
        of an order issued by a State or Tribal court, the State or 
        Tribal constitution.
    ``(c) Reports Concerning Preclusion of Notice Orders.--
            ``(1) In general.--In January of each year, any judge who 
        has issued an order (or an extension thereof) under subsection 
        (b) that expired during the preceding year, or who has denied 
        approval of a request for a preclusion of notice order, shall 
        report to the Administrative Office of the United States 
        Courts--
                    ``(A) the fact that an order or extension was 
                applied for;
                    ``(B) the fact that the order or extension was 
                granted as applied for, was modified, or was denied;
                    ``(C) the period of the preclusion of notice 
                required by the order, and the number and duration of 
                any extensions of the order;
                    ``(D) the nature of the offense or criminal 
                investigation that was the basis for the underlying 
                criminal surveillance order;
                    ``(E) the name of each provider of electronic 
                communication service or remote computing service 
                served with the order, if so granted; and
                    ``(F) the investigative or law enforcement agency 
                that submitted the application.
            ``(2) Public report.--In June of each year, the Director of 
        the Administrative Office of the United States Courts shall 
        publish on the website of the Administrative Office of the 
        United States Courts and include in the report required under 
        section 2519(3)--
                    ``(A) a full and complete report concerning--
                            ``(i) the number of applications for orders 
                        authorizing or approving the preclusion of 
                        notice pursuant to this section; and
                            ``(ii) the number of orders and extensions 
                        granted or denied pursuant to this section 
                        during the preceding calendar year; and
                    ``(B) a detailed summary and analysis of each 
                category of data required to be reported under 
                paragraph (1).
            ``(3) Format.--Not later than 180 days after the date of 
        enactment of this section, the Director of the Administrative 
        Office of the United States Courts shall, in consultation with 
        the National Institute of Standards and Technology and the 
        Administrator of General Services, private entities offering 
        electronic case management software, the National Center for 
        State Courts, and the National American Indian Court Judges 
        Association, publish a machine readable form that shall be used 
        for any report required under paragraph (1).
            ``(4) Regulations.--The Director of the Administrative 
        Office of the United States Courts may promulgate regulations 
        with respect to the content and form of the reports required 
        under paragraph (1).
    ``(d) Duration.--Any order issued under subsection (a) or (b) 
before the effective date of chapter 206A shall be for a period of not 
longer than 180 days.''.
    (b) Additional Grounds for Issuing Warrant.--Section 3103a of title 
18, United States Code, is amended--
            (1) in subsection (b)(3), by inserting ``, not to exceed 
        180 days,'' after ``certain'';
            (2) in subsection (c), by inserting ``, not to exceed 180 
        days'' before the period at the end; and
            (3) in subsection (d)(1)--
                    (A) in subparagraph (C), by striking ``and'' at the 
                end;
                    (B) in subparagraph (D), by striking the period at 
                the end and inserting ``; and''; and
                    (C) by adding at the end the following:
                    ``(E) the identification of the statute or rule of 
                law authorizing the search and seizure of property or 
                material.''.
    (c) Technical and Conforming Amendment.--The table of sections for 
chapter 121 of title 18, United States Code, is amended by striking the 
item relating to section 2705 and inserting the following:

``2705. Delay and preclusion of notice.''.

SEC. 6. INCENTIVES FOR STATE AND TRIBAL COURTS TO IMPLEMENT 
              REQUIREMENTS.

    (a) Amendments.--
            (1) Stored communications.--Chapter 121 of title 18, United 
        States Code, is amended--
                    (A) in section 2703, as amended by section 4(a) of 
                this Act, by inserting after ``return procedures'' each 
                place the term appears the following: ``and containing 
                a certification that the court is acting in compliance 
                with chapter 206A''; and
                    (B) in section 2711(3)(B), by inserting ``that is 
                acting in compliance with chapter 206A'' after ``search 
                warrants''.
            (2) Wiretapping.--Section 2516(2) of title 18, United 
        States Code, is amended by striking ``The principal prosecuting 
        attorney of any State'' and inserting ``If a State requires 
        that courts in the state comply with chapter 206A, the 
        principal prosecuting attorney of that State''.
            (3) Pen registers and trap and trace devices.--Section 
        3122(a)(2) of title 18, United States Code, is amended by 
        inserting ``and if the State requires that courts in the state 
        comply with chapter 206A,'' after ``law,''.
            (4) Full faith and credit.--The third undesignated 
        paragraph of section 1738 of title 28, United States Code, is 
        amended by inserting ``, provided that any criminal 
        surveillance order, as defined in section 3131 of title 18, 
        shall be entitled to full faith and credit only if the order 
        contains a certification that the court that issued the order 
        is acting in compliance with the requirements of chapter 206A 
        of title 18'' before the period at the end.
    (b) Effective Date.--
            (1) In general.--Except as provided in paragraph (2), the 
        amendments made by subsection (a) shall take effect on the date 
        that is 2 years after the date of enactment of this Act.
            (2) Delayed applicability for certain state and tribal 
        courts.--The amendments made by subsection (a) shall apply on 
        and after the date that is 4 years after the date of enactment 
        of this Act--
                    (A) to a State or Tribal court that, on the date of 
                enactment of this Act, does not offer electronic 
                docketing or public online access to dockets; or
                    (B) to any State or Tribal court that certifies 
                that the court needs more time to comply with the 
                requirements of the subsection.

SEC. 7. MODERNIZING CRIMINAL SURVEILLANCE REPORTS.

    (a) Reports Concerning Access to Customer Communications or 
Records.--
            (1) In general.--Section 2703 title 18, United States Code, 
        as amended by section 4(5) of this Act, is amended by adding at 
        the end the following:
    ``(j) Reports Concerning Access to Customer Communications or 
Records.--
            ``(1) In general.--In January of each year, any judge who 
        has issued an order under this section or a warrant to obtain 
        records described in this section, or who has denied approval 
        of an application under this section during the preceding year, 
        shall report to the Administrative Office of the United States 
        Courts--
                    ``(A) the fact that the order or warrant was 
                applied for;
                    ``(B) the type of records sought in the order or 
                warrant;
                    ``(C) whether the order or warrant was--
                            ``(i) granted as applied for;
                            ``(ii) granted as modified; or
                            ``(iii) denied;
                    ``(D) the subsection of this section under which 
                the application for the order or warrant was filed;
                    ``(E) the nature of the offense or criminal 
                investigation that was the basis for the application 
                for the order or warrant;
                    ``(F) the name of each provider of electronic 
                communication service or remote computing service 
                served with the order or warrant, if so granted; and
                    ``(G) the investigative or law enforcement agency 
                that submitted the application.
            ``(2) Public report.--In June of each year, the Director of 
        the Administrative Office of the United States Courts shall 
        publish on the website of the Administrative Office of the 
        United States Courts and include in the report required under 
        section 2519(3)--
                    ``(A) a full and complete report concerning the 
                number of applications for orders or warrants requiring 
                the disclosure of, during the preceding calendar year--
                            ``(i) the contents of wire or electronic 
                        communications in electronic storage under 
                        subsection (a);
                            ``(ii) the contents of wire or electronic 
                        communications in a remote computer service 
                        under subsection (b); and
                            ``(iii) records concerning electronic 
                        communication service or remote computer 
                        service under subsection (c);
                    ``(B) the number of orders and warrants granted or 
                denied under this section during the preceding calendar 
                year; and
                    ``(C) a detailed summary and analysis of each 
                category of data required to be filed with the 
                Administrative Office of the United States Courts under 
                paragraph (1).
            ``(3) Format.--Not later than 180 days after the date of 
        enactment of the Government Surveillance Transparency Act of 
        2022, the Director of the Administrative Office of the United 
        States Courts shall, in consultation with the National 
        Institute of Standards and Technology, the Administrator of 
        General Services, the Electronic Public Access Public User 
        Group, private entities offering electronic case management 
        software, the National Center for State Courts, and the 
        National American Indian Court Judges Association, publish a 
        machine readable form that shall be used for any report 
        required under paragraph (1).
            ``(4) Regulations.--The Director of the Administrative 
        Office of the United States Courts may issue binding 
        regulations with respect to the content and form of the reports 
        required under paragraph (1).''.
            (2) Technical and conforming amendment.--Section 2519(3) of 
        title 18, United States Code, is amended, in the first 
        sentence, by inserting ``publish on the website of the 
        Administrative Office of the United States Courts'' before 
        ``transmit''.
    (b) Reports Concerning Pen Registers and Trap and Trace Devices.--
Section 3126 of title 18, United States Code, is amended to read as 
follows:
``Sec. 3126. Reports concerning pen registers and trap and trace 
              devices
    ``(a) In General.--In January of each year, any judge who has 
issued an order (or an extension thereof) under section 3123 that 
expired during the preceding year, or who has denied approval of an 
installation and use of a pen register or trap and trace device during 
that year, shall report to the Administrative Office of the United 
States Courts--
            ``(1) the fact that an order or extension was applied for;
            ``(2) the kind of order or extension applied for;
            ``(3) the fact that the order or extension was granted as 
        applied for, was modified, or was denied;
            ``(4) the period of installation and use of a pen register 
        or trap and trace device authorized by the order, and the 
        number and duration of any extensions of the order;
            ``(5) the offense specified in the order or application, or 
        extension of an order;
            ``(6) the precise nature of the facilities affected and the 
        precise nature of the information sought; and
            ``(7) the investigative or law enforcement agency that 
        submitted the application.
    ``(b) Public Report.--In June of each year, the Director of the 
Administrative Office of the United States Courts shall publish on the 
website of the Administrative Office of the United States Courts and 
include in the report required under section 2519(3)--
            ``(1) a full and complete report concerning--
                    ``(A) the number of applications for orders 
                authorizing or approving the installation and use of a 
                pen register or trap and trace device pursuant to this 
                chapter; and
                    ``(B) the number of orders and extensions granted 
                or denied pursuant to this chapter during the preceding 
                calendar year; and
            ``(2) a detailed summary and analysis of each category of 
        data required to be reported under subsection (a).
    ``(c) Format.--Not later than 180 days after the date of enactment 
of the Government Surveillance Transparency Act of 2022, the Director 
of the Administrative Office of the United States Courts shall, in 
consultation with the National Institute of Standards and Technology 
and the Administrator of General Services, private entities offering 
electronic case management software, the National Center for State 
Courts, and the National American Indian Court Judges Association, 
publish a machine readable form that shall be used for any report 
required under subsection (a).
    ``(d) Regulations.--The Director of the Administrative Office of 
the United States Courts may issue binding regulations with respect to 
the content and form of the reports required under subsection (a).''.
    (c) Reporting of Emergency Disclosures.--Section 2702(d) of title 
18, United States Code, is amended, in the matter preceding paragraph 
(1), by inserting ``and publish on the website of the Department of 
Justice'' after ``Senate''.

SEC. 8. GRANTS.

    (a) Definitions.--In this section--
            (1) the term ``Indian Tribe'' has the meaning given such 
        term in section 102 of the Federally Recognized Indian Tribe 
        List Act of 1994 (25 U.S.C. 5130); and
            (2) the term ``State'' means each of the several States of 
        the United States, the District of Columbia, the Commonwealth 
        of Puerto Rico, American Samoa, the Commonwealth of the 
        Northern Mariana Islands, Guam, and the United States Virgin 
        Islands.
    (b) Authority.--The Attorney General shall make grants to State and 
Tribal court systems for the cost of implementing the requirements 
under the amendments made by this Act for the 5-year period beginning 
on the date of enactment of this Act.
    (c) Maximum Amount.--The total amount of grants awarded under this 
section shall be not greater than $25,000,000.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated--
            (1) $1,000,000 to the Administrative Office of the United 
        States Courts to implement the requirements of this Act and the 
        amendments made by this Act; and
            (2) $25,000,000 to carry out the grant program under 
        section 8.

SEC. 10. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such a provision or amendment to any person or 
circumstance, is held to be unconstitutional, the remaining provisions 
of and amendments made by this Act, and the application of the 
provision or amendment held to be unconstitutional to any other person 
or circumstance, shall not be affected thereby.
                                 <all>