Prohibition on obtaining records for Members of Congress

(a)

In general

Title 18, United States Code, is amended by adding at the end the following:

239

Congressional Records

3773.

Prohibition on obtaining records for Members of Congress or congressional employees

(a)

Prohibition on obtaining records

(1)

In general

Notwithstanding any other provision of Federal or State law, a governmental entity may not— (A) seek or obtain a search warrant, grand jury subpoena, court order, statutory authorization, certification, or subpoena that could reasonably be expected to return any covered material; or (B) issue an administrative order that could reasonably be expected to return any covered material. (2)

Exception

This subsection shall not apply if the subject of the search warrant, grand jury subpoena, court order, statutory authorization, certification, subpoena, or administrative order is— (A) the target of a criminal investigation; or (B) a third party and the search warrant, grand jury subpoena, court order, statutory authorization, certification, subpoena, or administrative order demands records, information, or the content of communications pertaining to a Member of Congress or congressional employee who is the target of a criminal investigation. (b)

Notification requirement

(1)

Notice

(A)

In general

A governmental entity shall notify the Member of Congress or congressional employee— (i) prior to or concurrently with the execution of a search warrant, grand jury subpoena, court order, statutory authorization, certification, administrative order, or subpoena that could reasonably be expected to return any covered material; or (ii) as soon as practicable following the execution of a search warrant, grand jury subpoena, court order, statutory authorization, certification, administrative order, or subpoena that unexpectedly returns covered material. (B)

Exception

If a subject of the search warrant, grand jury subpoena, court order, statutory authorization, certification, subpoena, or administrative order is the target of a criminal investigation or if the subject is a third party and the search warrant, grand jury subpoena, court order, statutory authorization, certification, subpoena, or administrative order demands records, information, or the content of communications pertaining to a Member of Congress or congressional employee who is the target of a criminal investigation, a court may, upon application by the governmental entity, issue an order delaying the notice required under subparagraph (A)(i) with respect to an acquisition, subpoena, search, accessing, or disclosure that could reasonably be expected to return covered material in connection with such investigation for a period of not more than 10 days if the court determines that there is reason to believe that providing notice would— (i) endanger the life or physical safety of any person; (ii) result in flight from prosecution; (iii) result in destruction of or tampering with evidence; (iv) result in intimidation of potential witnesses; or (v) otherwise seriously jeopardize an investigation or unduly delay a trial. (2)

Delayed review

(A)

In general

The governmental entity may not review materials that are reasonably expected to contain covered material until the date that is 30 days after the date notice is made pursuant to paragraph (1)(A)(i). (B)

Unexpected Return of Covered Materials

In instances where a search warrant, grand jury subpoena, court order, statutory authorization, certification, administrative order, or subpoena unexpectedly returns covered material, the governmental entity shall halt review of the returned material upon the discovery of the covered material until the date that is 30 days after the date notice is made pursuant to paragraph (1)(A)(ii). (C)

Exception

Subparagraphs (b)(2)(A) and (b)(2)(B) shall not apply when a 30-day delay in reviewing materials could cause an imminent risk to life or serious bodily injury. (c)

Rule of construction

This section may not be construed to limit the scope of any protection applicable under article I, section 6, clause 1 of the Constitution of the United States. (d)

Definitions

In this section: (1)

Congressional employee

The term congressional employee has the meaning given that term in subparagraphs (1), (2), (3), and (5) of section 2107 of title 5 and includes current and former congressional employees. (2)

Covered material

The term covered material means— (A) records, including all written materials, wire communications, and electronic communications, that were prepared by, shared with, or otherwise obtained by a Member of Congress or congressional employee in the course of their official duties, including electronic devices containing such records; and (B) records from an electronic or wire communication service related to any accounts of Members and from the time period of their service in Congress or official congressional accounts of congressional employees, or related to any communications between a Member of Congress or congressional employee and other Members of Congress, other congressional employees, or executive branch employees while at least one party to the communication was serving or working in Congress and another party to the communication was serving or working in Congress or the executive branch. (3)

Wire communication; Electronic communication

The terms wire communication, electronic communication, and electronic communication service have the meanings given those terms in section 2510. (4)

Governmental entity

The term governmental entity means a department or agency of the United States or any State or political subdivision thereof. (5)

Member of Congress

The term Member of Congress means a current or former Senator or Representative in, or Delegate or Resident Commissioner to, the United States Congress. (6)

Executive branch employee

The term executive branch employee has the meaning given that term in subparagraph (2)(A) of section 78u1(h) of title 15 and includes current and former executive branch employees. (7)

Subject of the search warrant, grand jury subpoena, court order, statutory authorization, certification, subpoena, or administrative order

The term subject of the search warrant, grand jury subpoena, court order, statutory authorization, certification, subpoena, or administrative order means the person whose records are sought by the governmental entity, or, if records are sought from an electronic or wire communication service, the person to whom the sought records pertain. (8)

Target of a criminal investigation

The term target of a criminal investigation means a person whom a governmental entity has probable cause to believe has committed a crime. If the person is a Member of Congress or a congressional employee, then the governmental entity shall submit an application certifying to a magistrate judge with authority in the district—or if there is none reasonably available, a judge of a court of record in the district—that there is probable cause to believe the person has committed a crime. The judge must certify that the application establishes that probable cause exists prior to or concurrently with the governmental entity seeking, obtaining, or issuing a search warrant, grand jury subpoena, court order, statutory authorization, certification, subpoena, or administrative order for covered material. (9)

Third party

The term third party means any person who is not a Member of Congress or congressional employee.

(b)

Clerical amendment

The table of chapters at the beginning of part I of title 18, United States Code, is amended by inserting after the item relating to chapter 238 the following new item:

239. Congressional Records 3773