[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5297 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 5297

     To amend the Controlled Substances Act to require electronic 
communication service providers and remote computing services to report 
     to the Attorney General the unlawful sale and distribution of 
       counterfeit substances and certain controlled substances.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 19, 2022

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

_______________________________________________________________________

                                 A BILL


 
     To amend the Controlled Substances Act to require electronic 
communication service providers and remote computing services to report 
     to the Attorney General the unlawful sale and distribution of 
       counterfeit substances and certain controlled substances.

    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 ``Cooper Davis Act''.

SEC. 2. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION SERVICE 
              PROVIDERS AND REMOTE COMPUTING SERVICES FOR THE UNLAWFUL 
              SALE AND DISTRIBUTION OF COUNTERFEIT SUBSTANCES AND 
              CERTAIN CONTROLLED SUBSTANCES.

    (a) In General.--Part E of the Controlled Substances Act (21 U.S.C. 
871 et seq.) is amended by adding at the end the following:

``SEC. 521. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION SERVICE 
              PROVIDERS AND REMOTE COMPUTING SERVICES FOR THE UNLAWFUL 
              SALE AND DISTRIBUTION OF COUNTERFEIT SUBSTANCES AND 
              CERTAIN CONTROLLED SUBSTANCES.

    ``(a) Definitions.--In this section, the terms `electronic 
communication service', `electronic mail address', `provider', `remote 
computing service', and `website' have the meanings given those terms 
in section 2258E of title 18, United States Code.
    ``(b) Duty To Report.--
            ``(1) In general.--
                    ``(A) Duty.--In order to reduce the proliferation 
                of the unlawful sale or distribution of counterfeit 
                substances and certain controlled substances, a 
                provider--
                            ``(i) shall, as soon as reasonably possible 
                        after obtaining actual knowledge of any facts 
                        or circumstances described in paragraph (2)(A), 
                        take the actions described in subparagraph (B); 
                        and
                            ``(ii) may, after obtaining actual 
                        knowledge of any facts or circumstances 
                        described in paragraph (2)(B), take the actions 
                        described in subparagraph (B).
                    ``(B) Actions described.--The actions described in 
                this subparagraph are--
                            ``(i) providing to the Drug Enforcement 
                        Administration the mailing address, telephone 
                        number, facsimile number, and electronic 
                        mailing address of, and individual point of 
                        contact for, such provider; and
                            ``(ii) making a report of such facts or 
                        circumstances to the Drug Enforcement 
                        Administration.
            ``(2) Facts and circumstances.--
                    ``(A) Violations.--The facts or circumstances 
                described in this subparagraph are any facts or 
                circumstances that indicate a violation has occurred 
                involving--
                            ``(i) fentanyl;
                            ``(ii) methamphetamine; or
                            ``(iii) the manufacture of a counterfeit 
                        substance.
                    ``(B) Imminent violations.--The facts or 
                circumstances described in this subparagraph are any 
                facts or circumstances that indicate that a violation 
                described in subparagraph (A) may be planned or 
                imminent.
    ``(c) Contents of Report.--In an effort to prevent future 
violations described in subsection (b)(2)(A), and to the extent the 
information is within the custody or control of a provider, the facts 
and circumstances included in each report under subsection (b)(1) shall 
include the following information:
            ``(1) Information about the involved individual.--
        Information relating to the identity of any individual who has 
        committed a violation or plans to commit a violation described 
        under subsection (b)(2)(A), which may, to the extent reasonably 
        practicable, include the electronic mail address, Internet 
        Protocol address, uniform resource locator, payment information 
        (excluding personally identifiable information), screen names 
        or monikers for the account used or any other accounts 
        associated with the individual, or any other identifying 
        information, including self-reported identifying information.
            ``(2) Historical reference.--Information relating to when 
        and how a customer or subscriber of a provider uploaded, 
        transmitted, or received content relating to the report or when 
        and how content relating to the report was reported to or 
        discovered by the provider, including a date and time stamp and 
        time zone.
            ``(3) Geographic location information.--Information 
        relating to the geographic location of the involved individual 
        or website, which may include the Internet Protocol address or 
        verified address, or, if not reasonably available, at least one 
        form of geographic identifying information, including area code 
        or ZIP Code, provided by the customer or subscriber, or stored 
        or obtained by the provider, and any information as to whether 
        a virtual private network was used.
            ``(4) Data relating to the sale of counterfeit substances 
        and certain controlled substances.--Any data, including 
        symbols, photos, video, icons, or direct messages, relating to 
        activity involving the unlawful sale or distribution of a 
        substance described in subsection (b)(2)(A) or other content 
        relating to the incident such report is regarding.
            ``(5) Complete communication.--The complete communication 
        containing the intent to unlawfully sell or distribute a 
        substance described in subsection (b)(2)(A), including--
                    ``(A) any data or information regarding the 
                transmission of the communication; and
                    ``(B) any data or other digital files contained in, 
                or attached to, the communication.
    ``(d) Forwarding of Report to Other Federal Law Enforcement 
Agencies, State and Local Law Enforcement Agencies, and Foreign Law 
Enforcement Agencies.--The Drug Enforcement Administration shall make 
available each report made under subsection (b)(1) to other Federal law 
enforcement agencies, State and local law enforcement agencies, and 
foreign law enforcement agencies involved in the investigation of 
violations described in subsection (b)(2)(A).
    ``(e) Attorney General Responsibilities.--
            ``(1) In general.--The Attorney General shall enforce this 
        section.
            ``(2) Designation of federal agencies.--The Attorney 
        General may designate a Federal law enforcement agency or 
        agencies to which the Drug Enforcement Administration shall 
        forward a report under subsection (d).
            ``(3) Designation of foreign agencies.--The Attorney 
        General may--
                    ``(A) in consultation with the Secretary of State, 
                designate foreign law enforcement agencies to which a 
                report may be forwarded under subsection (d);
                    ``(B) establish the conditions under which such a 
                report may be forwarded to such agencies; and
                    ``(C) develop a process for foreign law enforcement 
                agencies to request assistance from Federal law 
                enforcement agencies in obtaining evidence related to a 
                report referred under subsection (d).
            ``(4) Reporting designated foreign agencies.--The Attorney 
        General may maintain and make available to the Department of 
        State, providers, the Committee on the Judiciary of the Senate, 
        and the Committee on the Judiciary of the House of 
        Representatives a list of the foreign law enforcement agencies 
        designated under paragraph (3).
            ``(5) Notification to providers.--
                    ``(A) In general.--The Drug Enforcement 
                Administration may notify a provider of the information 
                described in subparagraph (B), if--
                            ``(i) a provider notifies the Drug 
                        Enforcement Administration that the provider is 
                        making a report under this section as the 
                        result of a request by a foreign law 
                        enforcement agency; and
                            ``(ii) the Drug Enforcement Administration 
                        forwards the report described in clause (i) 
                        to--
                                    ``(I) the requesting foreign law 
                                enforcement agency; or
                                    ``(II) another agency in the same 
                                country designated by the Attorney 
                                General under paragraph (3).
                    ``(B) Information described.--The information 
                described in this subparagraph is--
                            ``(i) the identity of the foreign law 
                        enforcement agency to which the report was 
                        forwarded; and
                            ``(ii) the date on which the report was 
                        forwarded.
                    ``(C) Notification of inability to forward 
                report.--If a provider notifies the Drug Enforcement 
                Administration that the provider is making a report 
                under this section as the result of a request by a 
                foreign law enforcement agency and the Drug Enforcement 
                Administration is unable to forward the report as 
                described in subparagraph (A)(ii), the Drug Enforcement 
                Administration shall notify the provider that the Drug 
                Enforcement Administration was unable to forward the 
                report.
    ``(f) Failure To Report.--A provider that knowingly and willfully 
fails to make a report required under subsection (b)(1) shall be 
fined--
            ``(1) in the case of an initial knowing and willful failure 
        to make a report, not more than $190,000; and
            ``(2) in the case of any second or subsequent knowing and 
        willful failure to make a report, not more than $380,000.
    ``(g) Protection of Privacy.--Nothing in this section shall be 
construed to require a provider to--
            ``(1) monitor any user, subscriber, or customer of that 
        provider;
            ``(2) monitor the content of any communication of any 
        person described in paragraph (1); or
            ``(3) affirmatively search, screen, or scan for facts or 
        circumstances described in subsections (b) and (c).
    ``(h) Conditions of Disclosure of Information Contained Within 
Report.--
            ``(1) In general.--Except as provided in paragraph (2), a 
        law enforcement agency that receives a report under subsection 
        (d) shall not disclose any information contained in that 
        report.
            ``(2) Permitted disclosures by law enforcement.--A law 
        enforcement agency may disclose information in a report 
        received under subsection (d)--
                    ``(A) to an attorney for the government for use in 
                the performance of the official duties of that 
                attorney;
                    ``(B) to such officers and employees of that law 
                enforcement agency, as may be necessary in the 
                performance of their investigative and recordkeeping 
                functions;
                    ``(C) to such other government personnel (including 
                personnel of a State or subdivision of a State) as are 
                determined to be necessary by an attorney for the 
                government to assist the attorney in the performance of 
                the official duties of the attorney in enforcing 
                Federal criminal law;
                    ``(D) if the report discloses a violation of State 
                criminal law, to an appropriate official of a State or 
                subdivision of a State for the purpose of enforcing 
                such State law;
                    ``(E) to a defendant in a criminal case or the 
                attorney for that defendant to the extent the 
                information relates to a criminal charge pending 
                against that defendant;
                    ``(F) to a provider if necessary to facilitate 
                response to legal process issued in connection to a 
                criminal investigation, prosecution, or post-conviction 
                remedy relating to that report; and
                    ``(G) as ordered by a court upon a showing of good 
                cause and pursuant to any protective orders or other 
                conditions that the court may impose.
    ``(i) Preservation.--
            ``(1) In general.--
                    ``(A) Request to preserve contents.--
                            ``(i) In general.--Subject to clause (ii), 
                        for the purposes of this section, a completed 
                        submission by a provider of a report to the 
                        Drug Enforcement Administration under 
                        subsection (b)(1) shall be treated as a request 
                        to preserve the contents provided in the 
                        report, and any data or other digital files 
                        that are reasonably accessible and may provide 
                        context or additional information about the 
                        reported material or person, for 90 days after 
                        the submission to the Drug Enforcement 
                        Administration.
                            ``(ii) Limitations on extension of 
                        preservation period.--
                                    ``(I) Notification that dea has 
                                forwarded report to foreign law 
                                enforcement agency.--The Drug 
                                Enforcement Administration may not 
                                extend the required period of 
                                preservation under clause (i) on the 
                                basis of a notification by the Drug 
                                Enforcement Administration to the 
                                provider under subsection (e)(5)(A).
                                    ``(II) Stored communications act.--
                                The Drug Enforcement Administration may 
                                not submit a request to a provider to 
                                continue preservation of the contents 
                                of a report or other data described in 
                                clause (i) under section 2703(f) of 
                                title 18, United States Code, beyond 
                                the required period of preservation 
                                under clause (i) of this subparagraph 
                                unless the Drug Enforcement 
                                Administration intends in good faith to 
                                investigate the user, subscriber, or 
                                customer account at issue in the report 
                                or make the report available to another 
                                Federal, State, or local law 
                                enforcement agency.
                                    ``(III) Rule of construction.--
                                Nothing in subclause (II) shall 
                                preclude another Federal, State, or 
                                local law enforcement agency from 
                                seeking continued preservation of the 
                                contents of a report or other data 
                                described in clause (i) under section 
                                2703(f) of title 18, United States 
                                Code.
                    ``(B) Notification to user.--A provider may not 
                notify a user, subscriber, or customer of the provider 
                of a preservation request described in subparagraph (A) 
                unless--
                            ``(i) the provider has notified the Drug 
                        Enforcement Administration of its intent to 
                        provide that notice; and
                            ``(ii) 5 business days have elapsed since 
                        the notification under clause (i).
            ``(2) Protection of preserved materials.--A provider 
        preserving materials under this section shall maintain the 
        materials in a secure location and take appropriate steps to 
        limit access to the materials by agents or employees of the 
        service to that access necessary to comply with the 
        requirements of this subsection.
            ``(3) Authorities and duties not affected.--Nothing in this 
        section shall be construed as replacing, amending, or otherwise 
        interfering with the authorities and duties under section 2703 
        of title 18, United States Code.''.
    (b) Technical and Conforming Amendment.--The table of contents for 
the Controlled Substances Act (21 U.S.C. 801 et seq.) is amended by 
inserting after the item relating to section 520 the following:

``Sec. 521. Reporting requirements of electronic communication service 
                            providers and remote computing services for 
                            the unlawful sale and distribution of 
                            counterfeit substances and certain 
                            controlled substances.''.
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