[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1080 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 200
118th CONGRESS
  1st Session
                                S. 1080

     To amend the Controlled Substances Act to require electronic 
communication service providers and remote computing services to report 
   to the Attorney General certain controlled substances violations.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 30, 2023

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

                           September 5, 2023

               Reported by Mr. Durbin, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
     To amend the Controlled Substances Act to require electronic 
communication service providers and remote computing services to report 
   to the Attorney General certain controlled substances violations.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Cooper Davis 
Act''.</DELETED>

<DELETED>SEC. 2. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION 
              SERVICE PROVIDERS AND REMOTE COMPUTING SERVICES FOR 
              CERTAIN CONTROLLED SUBSTANCES VIOLATIONS.</DELETED>

<DELETED>    (a) Amendments to Controlled Substances Act.--</DELETED>
        <DELETED>    (1) 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:</DELETED>

<DELETED>``SEC. 521. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION 
              SERVICE PROVIDERS AND REMOTE COMPUTING SERVICES FOR 
              CERTAIN CONTROLLED SUBSTANCES VIOLATIONS.</DELETED>

<DELETED>    ``(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.</DELETED>
<DELETED>    ``(b) Duty To Report.--</DELETED>
        <DELETED>    ``(1) In general.--</DELETED>
                <DELETED>    ``(A) Duty.--In order to reduce the 
                proliferation of the unlawful sale, distribution, or 
                manufacture (as applicable) of counterfeit controlled 
                substances and certain controlled substances, a 
                provider--</DELETED>
                        <DELETED>    ``(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);</DELETED>
                        <DELETED>    ``(ii) may, after obtaining actual 
                        knowledge of any facts or circumstances 
                        described in paragraph (2)(B), take the actions 
                        described in subparagraph (B);</DELETED>
                        <DELETED>    ``(iii) may, if the provider 
                        reasonably believes that any facts or 
                        circumstances described in paragraph (2)(A) 
                        exist, take the actions described in 
                        subparagraph (B); and</DELETED>
                        <DELETED>    ``(iv) shall, if a submission to 
                        the provider by a user, subscriber, or customer 
                        of the provider alleges facts or circumstances 
                        described in paragraph (2) and the provider 
                        upon review has a reasonable belief that the 
                        alleged facts or circumstances exist, take the 
                        actions described in subparagraph 
                        (B).</DELETED>
                <DELETED>    ``(B) Actions described.--The actions 
                described in this subparagraph are--</DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(ii) making a report of such 
                        facts or circumstances to the Drug Enforcement 
                        Administration.</DELETED>
        <DELETED>    ``(2) Facts and circumstances.--</DELETED>
                <DELETED>    ``(A) Violations.--The facts or 
                circumstances described in this subparagraph are any 
                facts or circumstances that indicate a violation has 
                occurred involving--</DELETED>
                        <DELETED>    ``(i) the unlawful sale or 
                        distribution of--</DELETED>
                                <DELETED>    ``(I) fentanyl; 
                                or</DELETED>
                                <DELETED>    ``(II) methamphetamine; 
                                or</DELETED>
                        <DELETED>    ``(ii) the unlawful sale, 
                        distribution, or manufacture of a counterfeit 
                        controlled substance.</DELETED>
                <DELETED>    ``(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.</DELETED>
<DELETED>    ``(c) Contents of Report.--</DELETED>
        <DELETED>    ``(1) In general.--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) may, at the sole discretion of the provider, 
        except as provided in paragraph (2), include the following 
        information:</DELETED>
                <DELETED>    ``(A) 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 in 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.</DELETED>
                <DELETED>    ``(B) 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.</DELETED>
                <DELETED>    ``(C) 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.</DELETED>
                <DELETED>    ``(D) Data relating to certain controlled 
                substances violations.--Any data, including symbols, 
                photos, video, icons, or direct messages, relating to 
                activity involving a violation described in subsection 
                (b)(2)(A) or other content relating to the incident 
                such report is regarding.</DELETED>
                <DELETED>    ``(E) Complete communication.--The 
                complete communication containing the intent to commit 
                a violation described in subsection (b)(2)(A), 
                including--</DELETED>
                        <DELETED>    ``(i) any data or information 
                        regarding the transmission of the 
                        communication; and</DELETED>
                        <DELETED>    ``(ii) any data or other digital 
                        files contained in, or attached to, the 
                        communication.</DELETED>
        <DELETED>    ``(2) Exception.--In the case of a report under 
        subsection (b)(1) that is mandated under subparagraph (A)(iv) 
        of that subsection--</DELETED>
                <DELETED>    ``(A) the provider shall include in the 
                report the information submitted to the provider by the 
                user, subscriber, or customer; and</DELETED>
                <DELETED>    ``(B) the provider may include in the 
                report any information described in paragraph (1) that 
                the user, subscriber, or customer did not submit to the 
                provider.</DELETED>
<DELETED>    ``(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), unless 
the Drug Enforcement Administration will conduct the investigation of 
the report.</DELETED>
<DELETED>    ``(e) Attorney General Responsibilities.--</DELETED>
        <DELETED>    ``(1) In general.--The Attorney General shall 
        enforce this section.</DELETED>
        <DELETED>    ``(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).</DELETED>
        <DELETED>    ``(3) Designation of foreign agencies.--The 
        Attorney General may--</DELETED>
                <DELETED>    ``(A) in consultation with the Secretary 
                of State, designate foreign law enforcement agencies to 
                which a report may be forwarded under subsection 
                (d);</DELETED>
                <DELETED>    ``(B) establish the conditions under which 
                such a report may be forwarded to such agencies; 
                and</DELETED>
                <DELETED>    ``(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).</DELETED>
        <DELETED>    ``(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).</DELETED>
        <DELETED>    ``(5) Notification to providers.--</DELETED>
                <DELETED>    ``(A) In general.--The Drug Enforcement 
                Administration may notify a provider of the information 
                described in subparagraph (B), if--</DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(ii) the Drug Enforcement 
                        Administration forwards the report described in 
                        clause (i) to--</DELETED>
                                <DELETED>    ``(I) the requesting 
                                foreign law enforcement agency; 
                                or</DELETED>
                                <DELETED>    ``(II) another agency in 
                                the same country designated by the 
                                Attorney General under paragraph 
                                (3).</DELETED>
                <DELETED>    ``(B) Information described.--The 
                information described in this subparagraph is--
                </DELETED>
                        <DELETED>    ``(i) the identity of the foreign 
                        law enforcement agency to which the report was 
                        forwarded; and</DELETED>
                        <DELETED>    ``(ii) the date on which the 
                        report was forwarded.</DELETED>
                <DELETED>    ``(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.</DELETED>
<DELETED>    ``(f) Failure To Report.--A provider that knowingly and 
willfully fails to make a report required under subsection (b)(1) shall 
be fined--</DELETED>
        <DELETED>    ``(1) in the case of an initial knowing and 
        willful failure to make a report, not more than $190,000; 
        and</DELETED>
        <DELETED>    ``(2) in the case of any second or subsequent 
        knowing and willful failure to make a report, not more than 
        $380,000.</DELETED>
<DELETED>    ``(g) Protection of Privacy.--Nothing in this section 
shall be construed to require a provider to--</DELETED>
        <DELETED>    ``(1) monitor any user, subscriber, or customer of 
        that provider;</DELETED>
        <DELETED>    ``(2) monitor the content of any communication of 
        any person described in paragraph (1); or</DELETED>
        <DELETED>    ``(3) affirmatively search, screen, or scan for 
        facts or circumstances described in subsections (b) and 
        (c).</DELETED>
<DELETED>    ``(h) Conditions of Disclosure of Information Contained 
Within Report.--</DELETED>
        <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(2) Permitted disclosures by law enforcement.--A 
        law enforcement agency may disclose information in a report 
        received under subsection (d)--</DELETED>
                <DELETED>    ``(A) to an attorney for the government 
                for use in the performance of the official duties of 
                that attorney;</DELETED>
                <DELETED>    ``(B) to such officers and employees of 
                that law enforcement agency, as may be necessary in the 
                performance of their investigative and recordkeeping 
                functions;</DELETED>
                <DELETED>    ``(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;</DELETED>
                <DELETED>    ``(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;</DELETED>
                <DELETED>    ``(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;</DELETED>
                <DELETED>    ``(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</DELETED>
                <DELETED>    ``(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.</DELETED>
<DELETED>    ``(i) Preservation.--</DELETED>
        <DELETED>    ``(1) In general.--</DELETED>
                <DELETED>    ``(A) Request to preserve contents.--
                </DELETED>
                        <DELETED>    ``(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.</DELETED>
                        <DELETED>    ``(ii) Limitations on extension of 
                        preservation period.--</DELETED>
                                <DELETED>    ``(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).</DELETED>
                                <DELETED>    ``(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.</DELETED>
                                <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(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--</DELETED>
                        <DELETED>    ``(i) the provider has notified 
                        the Drug Enforcement Administration of its 
                        intent to provide that notice; and</DELETED>
                        <DELETED>    ``(ii) 5 business days have 
                        elapsed since the notification under clause 
                        (i).</DELETED>
        <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(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.''.</DELETED>
        <DELETED>    (2) 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:</DELETED>

<DELETED>``Sec. 521. Reporting requirements of electronic communication 
                            service providers and remote computing 
                            services for certain controlled substances 
                            violations.''.
<DELETED>    (b) Conforming Amendments to Stored Communications Act.--
</DELETED>
        <DELETED>    (1) In general.--Section 2702 of title 18, United 
        States Code, is amended--</DELETED>
                <DELETED>    (A) in subsection (b)--</DELETED>
                        <DELETED>    (i) in paragraph (8), by striking 
                        ``or'' at the end;</DELETED>
                        <DELETED>    (ii) in paragraph (9), by striking 
                        the period at the end and inserting ``; or''; 
                        and</DELETED>
                        <DELETED>    (iii) by adding at the end the 
                        following:</DELETED>
        <DELETED>    ``(10) to a law enforcement agency, in connection 
        with a report submitted thereto under section 521 of the 
        Controlled Substances Act.''; and</DELETED>
                <DELETED>    (B) in subsection (c)--</DELETED>
                        <DELETED>    (i) in paragraph (6), by striking 
                        ``or'' at the end;</DELETED>
                        <DELETED>    (ii) in paragraph (7), by striking 
                        the period at the end and inserting ``; or''; 
                        and</DELETED>
                        <DELETED>    (iii) by adding at the end the 
                        following:</DELETED>
        <DELETED>    ``(8) to a law enforcement agency, in connection 
        with a report submitted thereto under section 521 of the 
        Controlled Substances Act.''.</DELETED>
        <DELETED>    (2) Technical amendment.--Paragraph (7) of section 
        2702(b) of title 18, United States Code, is amended to read as 
        follows:</DELETED>
        <DELETED>    ``(7) to a law enforcement agency if the 
        contents--</DELETED>
                <DELETED>    ``(A) were inadvertently obtained by the 
                service provider; and</DELETED>
                <DELETED>    ``(B) appear to pertain to the commission 
                of a crime;''.</DELETED>

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 CERTAIN 
              CONTROLLED SUBSTANCES VIOLATIONS.

    (a) Amendments to Controlled Substances Act.--
            (1) 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:

``reporting requirements of electronic communication service providers 
    and remote computing services for certain controlled substances 
                               violations

    ``Sec. 521.  (a) Definitions.--In this section--
            ``(1) the term `electronic communication service' has the 
        meaning given that term in section 2510 of title 18, United 
        States Code;
            ``(2) the term `electronic mail address' has the meaning 
        given that term in section 3 of the CAN-SPAM Act of 2003 (15 
        U.S.C. 7702);
            ``(3) the term `Internet' has the meaning given that term 
        in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 151 
        note);
            ``(4) the term `provider' means an electronic communication 
        service provider or remote computing service;
            ``(5) the term `remote computing service' has the meaning 
        given that term in section 2711 of title 18, United States 
        Code; and
            ``(6) the term `website' means any collection of material 
        placed in a computer server-based file archive so that it is 
        publicly accessible, over the Internet, using hypertext 
        transfer protocol or any successor protocol.
    ``(b) Duty to Report.--
            ``(1) General duty.--In order to reduce the proliferation 
        of the unlawful sale, distribution, or manufacture (as 
        applicable) of counterfeit substances and certain controlled 
        substances, a provider shall, as soon as reasonably possible 
        after obtaining actual knowledge of any facts or circumstances 
        described in paragraph (2), and in any event not later than 60 
        days after obtaining such knowledge, submit to the Drug 
        Enforcement Administration a report containing--
                    ``(A) the mailing address, telephone number, 
                facsimile number, and electronic mailing address of, 
                and individual point of contact for, such provider;
                    ``(B) information described in subsection (c) 
                concerning such facts or circumstances; and
                    ``(C) for purposes of subsection (j), information 
                indicating whether the facts or circumstances were 
                discovered through content moderation conducted by a 
                human or via a non-human method, including use of an 
                algorithm, machine learning, or other means.
            ``(2) Facts or circumstances.--The facts or circumstances 
        described in this paragraph are any facts or circumstances 
        establishing that a crime is being or has already been 
        committed involving--
                    ``(A) creating, manufacturing, distributing, 
                dispensing, or possession with intent to manufacture, 
                distribute, or dispense--
                            ``(i) fentanyl; or
                            ``(ii) methamphetamine;
                    ``(B) creating, manufacturing, distributing, 
                dispensing, or possession with intent to manufacture, 
                distribute, or dispense a counterfeit substance, 
                including a counterfeit substance purporting to be a 
                prescription drug; or
                    ``(C) offering, dispensing, or administering an 
                actual or purported prescription pain medication or 
                prescription stimulant by any individual or entity that 
                is not a practitioner or online pharmacy, including an 
                individual or entity that falsely claims to be a 
                practitioner or online pharmacy.
            ``(3) Permitted actions based on reasonable belief.--In 
        order to reduce the proliferation of the unlawful sale, 
        distribution, or manufacture (as applicable) of counterfeit 
        substances and certain controlled substances, if a provider has 
        a reasonable belief that facts or circumstances described in 
        paragraph (2) exist, the provider may submit to the Drug 
        Enforcement Administration a report described in paragraph (1).
    ``(c) Contents of Report.--
            ``(1) In general.--To the extent the information is within 
        the custody or control of a provider, the facts or 
        circumstances included in each report under subsection (b)(1)--
                    ``(A) shall include, to the extent that it is 
                applicable and reasonably available, information 
                relating to the account involved in the commission of a 
                crime described in subsection (b)(2), such as the name, 
                address, electronic mail address, user or account 
                identification, Internet Protocol address, uniform 
                resource locator, screen names or monikers for the 
                account used or any other accounts associated with the 
                account user, or any other identifying information, 
                including self-reported identifying information, but 
                not including the contents of a wire communication or 
                electronic communication, as those terms are defined in 
                section 2510 of title 18, United States Code, except as 
                provided in subparagraph (B) of this paragraph; and
                    ``(B) may, at the sole discretion of the provider, 
                include the information described in paragraph (2) of 
                this subsection.
            ``(2) Other information.--The information referred to in 
        paragraph (1)(B) is the following:
                    ``(A) Historical reference.--Information relating 
                to when and how a user, subscriber, or customer 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.
                    ``(B) 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 user, subscriber, or customer, or 
                stored or obtained by the provider, and any information 
                as to whether a virtual private network was used.
                    ``(C) Data relating to facts or circumstances.--Any 
                data, including symbols, photos, video, icons, or 
                direct messages, relating to activity involving the 
                facts or circumstances described in subsection (b)(2) 
                or other content relating to the crime.
                    ``(D) Complete communication.--The complete 
                communication containing the information of the crime 
                described in subsection (b)(2), including--
                            ``(i) any data or information regarding the 
                        transmission of the communication; and
                            ``(ii) any data or other digital files 
                        contained in, or attached to, the 
                        communication.
            ``(3) User, subscriber, or customer submitted reports.--In 
        the case of a report under subsection (b)(3), the provider may, 
        at its sole discretion, include in the report information 
        submitted to the provider by a user, subscriber, or customer 
        alleging facts or circumstances described in subsection (b)(2) 
        if the provider, upon review, has a reasonable belief that the 
        alleged facts or circumstances exist.
    ``(d) Handling of Reports.--Upon receipt of a report submitted 
under subsection (b), the Drug Enforcement Administration--
            ``(1) shall conduct a preliminary review of such report; 
        and
            ``(2) after completing the preliminary review, shall--
                    ``(A) conduct further investigation of the report, 
                which may include making the report available to other 
                Federal, State, or local law enforcement agencies 
                involved in the investigation of crimes described in 
                subsection (b)(2), if the Drug Enforcement 
                Administration determines that the report facially 
                contains sufficient information to warrant and permit 
                further investigation; or
                    ``(B) conclude that no further investigative steps 
                are warranted or possible, or that insufficient 
                evidence exists to make a determination, and close the 
                report.
    ``(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 may 
        forward a report under subsection (d).
            ``(3) Data minimization requirements.--The Attorney General 
        shall take reasonable measures to--
                    ``(A) limit the storage of a report submitted under 
                subsection (b) and its contents to the amount that is 
                necessary to carry out the investigation of crimes 
                described in subsection (b)(2); and
                    ``(B) store a report submitted under subsection (b) 
                and its contents only as long as is reasonably 
                necessary to carry out an investigation of crimes 
                described in subsection (b)(2) or make the report 
                available to other agencies under subsection (d)(2)(A), 
                after which time the report and its contents shall be 
                deleted unless the preservation of a report has future 
                evidentiary value.
    ``(f) Failure to Comply With Requirements.--
            ``(1) Criminal penalty.--
                    ``(A) Offense.--It shall be unlawful for a provider 
                to knowingly fail to submit a report required under 
                subsection (b)(1).
                    ``(B) Penalty.--A provider that violates 
                subparagraph (A) shall be fined--
                            ``(i) in the case of an initial violation, 
                        not more than $190,000; and
                            ``(ii) in the case of any second or 
                        subsequent violation, not more than $380,000.
            ``(2) Civil penalty.--In addition to any other available 
        civil or criminal penalty, a provider shall be liable to the 
        United States Government for a civil penalty in an amount not 
        less than $50,000 and not more than $100,000 if the provider 
        knowingly submits a report under subsection (b) that--
                    ``(A) contains materially false or fraudulent 
                information; or
                    ``(B) omits information described in subsection 
                (c)(1)(A) that is reasonably available.
    ``(g) Protection of Privacy.--Nothing in this section shall be 
construed to--
            ``(1) require a provider to monitor any user, subscriber, 
        or customer of that provider;
            ``(2) require a provider to monitor the content of any 
        communication of any person described in paragraph (1);
            ``(3) require a provider to affirmatively search, screen, 
        or scan for facts or circumstances described in subsection 
        (b)(2); or
            ``(4) permit actual knowledge to be proven based solely on 
        a provider's decision not to engage in additional verification 
        or investigation to discover facts and circumstances that are 
        not readily apparent, so long as the provider does not 
        deliberately blind itself to those violations.
    ``(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, including providing discovery to a defendant;
                    ``(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 an apparent 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;
                    ``(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; and
                    ``(H) in order to facilitate the enforcement of the 
                penalties authorized under subsection (f).
    ``(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) 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 has an active or pending 
                                investigation involving the user, 
                                subscriber, or customer account at 
                                issue in the report.
                                    ``(II) Rule of construction.--
                                Nothing in subclause (I) 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) 45 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.
            ``(4) Relation to reporting requirement.--Submission of a 
        report as required by subsection (b)(1) does not satisfy the 
        obligations under this subsection.
    ``(j) Annual Report.--Not later than 1 year after the date of 
enactment of the Cooper Davis Act, and annually thereafter, the Drug 
Enforcement Administration shall publish a report that includes, for 
the reporting period--
            ``(1) the total number of reports received from providers 
        under subsection (b)(1);
            ``(2) the number of reports received under subsection 
        (b)(1) disaggregated by--
                    ``(A) the provider on whose electronic 
                communication service or remote computing service the 
                crime for which there are facts or circumstances 
                occurred; and
                    ``(B) the subsidiary of a provider, if any, on 
                whose electronic communication service or remote 
                computing service the crime for which there are facts 
                or circumstances occurred;
            ``(3) the number of reports received under subsection 
        (b)(1) that led to convictions in cases investigated by the 
        Drug Enforcement Administration;
            ``(4) the number of reports received under subsection 
        (b)(1) that lacked actionable information;
            ``(5) the number of reports received under subsection 
        (b)(1) where the facts or circumstances of a crime were 
        discovered through--
                    ``(A) content moderation conducted by a human; or
                    ``(B) a non-human method including use of an 
                algorithm, machine learning, or other means;
            ``(6) the number of reports received under subsection 
        (b)(1) that were made available to other law enforcement 
        agencies, disaggregated by--
                    ``(A) the number of reports made available to 
                Federal law enforcement agencies;
                    ``(B) the number of reports made available to State 
                law enforcement agencies; and
                    ``(C) the number of reports made available to local 
                law enforcement agencies; and
            ``(7) the number of requests to providers to continue 
        preservation of the contents of a report or other data 
        described in subsection (i)(1)(A)(i) submitted by the Drug 
        Enforcement Administration under section 2703(f) of title 18, 
        United States Code.
    ``(k) Prohibition on Submission of User, Subscriber, Customer, or 
Anonymous Reports by Law Enforcement.--
            ``(1) In general.--No Federal, Tribal, State, or local law 
        enforcement officer acting in an official capacity may submit a 
        report to a provider or arrange for another individual to 
        submit a report to a provider on behalf of the officer under 
        this section.
            ``(2) Remedy for violation.--No part of the contents of a 
        provider's report made under subsection (b)(1) or (b)(3) and no 
        evidence derived therefrom may be received in evidence in any 
        trial, hearing, or other proceeding in or before any court, 
        department, officer, agency, regulatory body, legislative 
        committee, or other authority of the United States, a State, or 
        a political subdivision thereof if that provider report 
        resulted from an action prohibited by paragraph (1) of this 
        subsection.
    ``(l) Exemption for Providers of Broadband Internet Access 
Service.--Subsections (b) through (k) shall not apply to a provider of 
broadband internet access service, as that term is defined in section 
8.1(b) of title 47, Code of Federal Regulations (or any successor 
regulation), insofar as the provider is acting as a provider of such 
service.''.
            (2) 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 
                            certain controlled substances 
                            violations.''.
    (b) Conforming Amendments to Stored Communications Act.--
            (1) In general.--Section 2702 of title 18, United States 
        Code, is amended--
                    (A) in subsection (b)--
                            (i) in paragraph (8), by striking ``or'' at 
                        the end;
                            (ii) in paragraph (9), by striking the 
                        period at the end and inserting ``; or''; and
                            (iii) by adding at the end the following:
            ``(10) to the Drug Enforcement Administration, in 
        connection with a report submitted thereto under section 521 of 
        the Controlled Substances Act.''; and
                    (B) in subsection (c)--
                            (i) in paragraph (6), by striking ``or'' at 
                        the end;
                            (ii) in paragraph (7), by striking the 
                        period at the end and inserting ``; or''; and
                            (iii) by adding at the end the following:
            ``(8) to the Drug Enforcement Administration, in connection 
        with a report submitted thereto under section 521 of the 
        Controlled Substances Act.''.
            (2) Technical amendment.--Paragraph (7) of section 2702(b) 
        of title 18, United States Code, is amended to read as follows:
            ``(7) to a law enforcement agency if the contents--
                    ``(A) were inadvertently obtained by the service 
                provider; and
                    ``(B) appear to pertain to the commission of a 
                crime;''.

SEC. 3. SEVERABILITY.

    If any provision of this Act or 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 this Act and amendments made by this Act, and the application of 
such provision or amendment to any other person or circumstance, shall 
not be affected thereby.
                                                       Calendar No. 200

118th CONGRESS

  1st Session

                                S. 1080

_______________________________________________________________________

                                 A BILL

     To amend the Controlled Substances Act to require electronic 
communication service providers and remote computing services to report 
   to the Attorney General certain controlled substances violations.

_______________________________________________________________________

                           September 5, 2023

                       Reported with an amendment