[Congressional Record Volume 157, Number 68 (Tuesday, May 17, 2011)]
[Senate]
[Pages S3054-S3057]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. LEAHY:
S. 1011. A bill to improve the provisions relating to the privacy of
electronic communications; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today I am pleased to introduce the
Electronic Communications Privacy Act Amendments Act of 2011, a bill to
bring our Federal electronic privacy laws into the digital age. Since
the Electronic Communications Privacy Act, ECPA, was first enacted in
1986, the ECPA has been one of our Nation's premiere privacy laws. But,
today, this law is significantly outdated and out-paced by rapid
changes in technology and the changing mission of our law enforcement
agencies after September 11.
In the digital age, American consumers and businesses face threats to
privacy like no time in history. With the explosion of new
technologies, including social networking sites, smartphones and other
mobile applications, there are many new benefits to consumers. But,
there are also many new risks to their privacy.
Just in the past few weeks, we have witnessed significant data
breaches involving Sony and Epsilon that impact the privacy of millions
of American consumers. We are also learning that smartphones and other
new mobile technologies may be using and storing our location and other
sensitive information posing other new risks to privacy.
When I led the effort to write the ECPA 25 years ago, no one could
have contemplated these and other emerging threats to our digital
privacy. Updating this law to reflect the realities of our time is
essential to ensuring that our Federal privacy laws keep pace with new
technologies and the new threats to our security.
This bill takes several steps to protect Americans' privacy in the
digital age. First, the bill makes common sense changes to the law
regarding the privacy protections afforded to consumers' electronic
communications. Under the current law, a single e-mail could be subject
to as many a four different levels of privacy protections, depending
upon where it is stored and when it was sent. The bill gets rid of the
so-called ``180-day rule'' and replaces this confusing mosaic with one
clear legal standard for the protection of the content of e-mails and
other electronic communications. Under my bill, service providers are
expressly prohibited from disclosing customer content and the
government must obtain a search warrant, based on probable cause, to
compel a service provider to disclose the content of a customer's
electronic communications to the government.
This bill also provides important new consumer privacy protections
for location information that is collected, used, or stored by service
providers, smartphones, or other mobile technologies. To protect
consumer privacy, my bill requires that the government obtain either a
search warrant, or a court order under the Foreign Intelligence
Surveillance Act, in order to access or use an individual's smartphone
or other electronic communications device to obtain geolocation
information. There are well-balanced exceptions to the warrant
requirement if the government needs to obtain location information to
address an immediate threat to safety or national security, or when
there is user consent or a call for emergency services. The bill also
requires that the government obtain a search warrant in order to obtain
contemporaneous, real-time, location information from a provider. There
is an exception to the warrant requirement for emergency calls for
service.
To address the role of new technologies in the changing mission of
law enforcement, the bill also provides important new tools to law
enforcement to fight crime and keep us safe. The bill clarifies the
authority under the ECPA for the government to temporarily delay
notifying an individual of that fact that the government has accessed
the contents of their electronic communications, to protect the
integrity of a government investigation. The bill also gives new
authority to the government to delay notification in order to protect
national security.
Lastly, the ECPA Amendments Act strengthens the tools available in
ECPA to protect our national security and the security of our computer
networks. The legislation creates a new limited exception to the
nondisclosure requirements under the ECPA, so that a service provider
can voluntarily disclose content to the government that is pertinent to
addressing a cyberattack. To protect privacy and civil liberties, the
bill also requires that, among other things, the Attorney General and
the Secretary of Homeland Security submit an annual report to Congress
detailing the number of accounts from which their departments received
voluntary disclosures under this new cybersecurity exception.
In addition, the bill clarifies the kinds of subscriber records that
the Federal Bureau of Investigations may obtain from a provider in
connection with a counterintelligence investigation. This reform will
help to make the process for obtaining this information more certain
and efficient for both the government and providers.
I drafted this bill with one key principle in mind, that updates to
the Electronic Communication Privacy Act must carefully balance the
interests and needs of consumers, law enforcement, and our Nation's
thriving technology sector. I also drafted this bill in careful
consultation with many government and private sector stakeholders,
including the Departments of Justice and Commerce, State and local law
enforcement, and members of the technology and privacy communities.
I thank the Digital Due Process Coalition and the many other
stakeholders who support this bill. I also thank the Departments of
Commerce and Justice for their guidance on how the ECPA impacts the
needs of our law enforcement community and our national economy. I look
forward to continuing to work with all of these stakeholders as this
bill moves forward.
Two decades before Congress first enacted the Electronic
Communications Privacy Act, Chief Justice Earl Warren wisely opined
that ``the fantastic advances in the field of electronic communications
constitute a greater danger to the privacy of the individual.'' This
aptly describes the state of our digital privacy rights today. The
balanced reforms in this bill will help ensure that our Federal privacy
laws address the many dangers to personal privacy posed by the rapid
advances in electronic communications technologies. Accomplishing this
challenging task will not be easy. But, with the introduction of the
Electronic Communications Privacy Act Amendments Act of 2011, we take a
significant step towards this very important goal.
[[Page S3055]]
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1011
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 ``Electronic Communications
Privacy Act Amendments Act of 2011''.
SEC. 2. PROHIBITION ON DISCLOSURE OF CONTENT.
Section 2702(a)(3) of title 18, United States Code, is
amended to read as follows:
``(3) a provider of electronic communication service,
remote computing service, or geolocation information service
to the public shall not knowingly divulge to any governmental
entity the contents of any communication described in section
2703(a), or any record or other information pertaining to a
subscriber or customer of such provider or service.''.
SEC. 3. ELIMINATION OF 180 DAY RULE AND SEARCH WARRANT
REQUIREMENT; REQUIRED DISCLOSURE OF CUSTOMER
RECORDS.
(a) In General.--Section 2703 of title 18, United States
Code, is amended--
(1) by striking subsections (a), (b), and (c) and inserting
the following:
``(a) Contents of Wire or Electronic Communications in
Electronic Storage.--
``(1) In general.--A governmental entity may require the
disclosure by a provider of electronic communication service,
remote computing service, or geolocation information service
of the contents of a wire or electronic communication that is
in electronic storage with or otherwise held or maintained by
the provider if the governmental entity obtains a warrant
issued and executed in accordance with the Federal Rules of
Criminal Procedure (or, in the case of a State court, issued
using State warrant procedures) that is issued by a court of
competent jurisdiction directing the disclosure.
``(2) Notice.--Except as provided in section 2705, not
later than 3 days after a governmental entity receives the
contents of a wire or electronic communication of a
subscriber or customer from a provider of electronic
communication service, remote computing service, or
geolocation information service under paragraph (1), the
governmental entity shall serve upon, or deliver to by
registered or first-class mail, electronic mail, or other
means reasonably calculated to be effective, as specified by
the court issuing the warrant, the subscriber or customer--
``(A) a copy of the warrant; and
``(B) a notice that includes the information referred to in
section 2705(a)(5)(B)(i).
``(b) Records Concerning Electronic Communication Service,
Remote Computing Service, or Geolocation Information
Service.--
``(1) In general.--Subject to paragraph (2) and subsection
(g), a governmental entity may require a provider of
electronic communication service, remote computing service,
or geolocation information service to disclose a record or
other information pertaining to a subscriber or customer of
the provider or service (not including the contents of
communications), only if the governmental entity--
``(A) obtains a warrant issued and executed in accordance
with the Federal Rules of Criminal Procedure (or, in the case
of a State court, issued using State warrant procedures) that
is issued by a court of competent jurisdiction directing the
disclosure;
``(B) obtains a court order directing the disclosure under
subsection (c);
``(C) has the consent of the subscriber or customer to the
disclosure; or
``(D) submits a formal written request relevant to a law
enforcement investigation concerning telemarketing fraud for
the name, address, and place of business of a subscriber or
customer of the provider or service that is engaged in
telemarketing (as defined in section 2325).
``(2) Subpoenas.--
``(A) In general.--A governmental entity may require a
provider of electronic communication service, remote
computing service, or geolocation information service to
disclose information described in subparagraph (B) if the
governmental entity obtains--
``(i) an administrative subpoena under a Federal or State
statute; or
``(ii) a Federal or State grand jury subpoena or trial
subpoena.
``(B) Requirements.--The information described in this
subparagraph is--
``(i) the name of the subscriber or customer;
``(ii) the address of the subscriber or customer;
``(iii) the local and long distance telephone connection
records, or records of session times and durations, of the
subscriber or customer;
``(iv) length of service (including start date) and types
of service utilized by the subscriber or customer;
``(v) telephone or instrument number or other subscriber
number or identity, including any temporarily assigned
network address, of the subscriber or customer; and
``(vi) means and source of payment for such service
(including any credit card or bank account number) of the
subscriber or customer.
``(3) Notice not required.--A governmental entity that
receives records or information under this subsection is not
required to provide notice to a subscriber or customer.'';
and
(2) by redesignating subsections (d) through (g) as
subsections (c) through (f), respectively.
(b) Technical and Conforming Amendments.--
(1) Section 2258a.--Section 2258A(h)(1) of title 18, United
States Code, is amended by striking ``section 2703(f)'' and
inserting ``section 2703(e)''.
(2) Section 2703.--Section 2703(c) of title 18, United
States Code, as redesignated by subsection (a), is amended--
(A) by striking ``A court order for disclosure under
subsection (b) or (c)'' and inserting ``A court order for
disclosure under subsection (b)(1)(B) or (g)(3)(A)(ii)''; and
(B) by striking ``the contents of a wire or electronic
communication, or the records or other information sought,''
and inserting ``the records, other information, or historical
geolocation information sought''.
(3) Section 2707.--Section 2707(a) of title 18, United
States Code, is amended by striking ``section 2703(e)'' and
inserting ``section 2703(d)''.
(4) Section 3486.--Section 3486(a)(1)(C)(i) of title 18,
United States Code, is amended by striking ``section
2703(c)(2)'' and inserting ``section 2703(b)(2)(B)''.
SEC. 4. DELAYED NOTICE.
Section 2705 of title 18, United States Code, is amended to
read as follows:
``Sec. 2705. Delayed notice
``(a) Delay of Notification.--
``(1) In general.--A governmental entity that is seeking a
warrant under section 2703(a) may include in the application
for the warrant a request for an order delaying the
notification required under section 2703(a) for a period of
not more than 90 days.
``(2) Determination.--A court shall grant a request for
delayed notification made under paragraph (1) if the court
determines that there is reason to believe that notification
of the existence of the warrant may result in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses;
``(E) otherwise seriously jeopardizing an investigation or
unduly delaying a trial; or
``(F) endangering national security.
``(3) Extension.--Upon request by a governmental entity, a
court may grant 1 or more extensions of the delay of
notification granted under paragraph (2) of not more than 90
days.
``(4) Expiration of the delay of notification.--Upon
expiration of the period of delay of notification under
paragraph (2) or (3), the governmental entity shall serve
upon, or deliver to by registered or first-class mail,
electronic mail or other means reasonably calculated to be
effective as specified by the court approving the search
warrant, the customer or subscriber--
``(A) a copy of the warrant; and
``(B) notice that informs the customer or subscriber--
``(i) that information maintained for the customer or
subscriber by the provider of electronic communication
service, remote computing service, or geolocation information
service named in the process or request was supplied to, or
requested by, the governmental entity;
``(ii) of the date on which the request to the provider for
information was made by the governmental entity and the date
on which the information was provided by the provider to the
governmental entity;
``(iii) that notification of the customer or subscriber was
delayed;
``(iv) the identity of the court authorizing the delay; and
``(v) of the provision of this chapter under which the
delay was authorized.
``(b) Preclusion of Notice to Subject of Governmental
Access.--
``(1) In general.--A governmental entity that is obtaining
the contents of a communication or information or records
under section 2703 or geolocation information under section
2713 may apply to a court for an order directing a provider
of electronic communication service, remote computing
service, or geolocation information service to which a
warrant, order, subpoena, or other directive under section
2703 or 2713 is directed not to notify any other person of
the existence of the warrant, order, subpoena, or other
directive for a period of not more than 90 days.
``(2) Determination.--A court shall grant a request for an
order made under paragraph (1) if the court determines that
there is reason to believe that notification of the existence
of the warrant, order, subpoena, or other directive may
result in--
``(A) endangering the life or physical safety of an
individual;
``(B) flight from prosecution;
``(C) destruction of or tampering with evidence;
``(D) intimidation of potential witnesses;
``(E) otherwise seriously jeopardizing an investigation or
unduly delaying a trial; or
``(F) endangering national security.
``(3) Extension.--Upon request by a governmental entity, a
court may grant 1 or more extensions of an order granted
under paragraph (2) of not more than 90 days.''.
SEC. 5. LOCATION INFORMATION PRIVACY.
(a) In General.--Chapter 121 of title 18, United States
Code, is amended by adding at the end the following:
[[Page S3056]]
``Sec. 2713. Location tracking of electronic communications
device
``(a) Prohibition.--Except as provided in subsection (b),
(c), or (d), no governmental entity may access or use an
electronic communications device to acquire geolocation
information.
``(b) Acquisition Pursuant to a Warrant or Court Order.--A
governmental entity may access or use an electronic
communications device to acquire geolocation information if
the governmental entity obtains--
``(1) a warrant issued and executed in accordance with the
Federal Rules of Criminal Procedure relating to tracking
devices (or, in the case of a State court, issued using State
warrant procedures), issued by a court of competent
jurisdiction authorizing the accessing or use of an
electronic communications device to acquire geolocation
information; or
``(2) a court order under title I or title VII of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq. and 1881 et seq.) authorizing the accessing or use of
an electronic communications device to acquire geolocation
information.
``(c) Permitted Acquisitions Without Court Order.--A
governmental entity may access or use an electronic
communications device to acquire geolocation information--
``(1) as permitted under section 222(d)(4) of the
Communications Act of 1934 (47 U.S.C. 222(d)(4)) in order to
respond to a call for emergency services by a user of an
electronic communications device; or
``(2) with the express consent of the owner or user of the
electronic communications device concerned.
``(d) Emergency Acquisition of Geolocation Information.--
``(1) In general.--Subject to paragraph (2), an
investigative or law enforcement officer specially designated
by the Attorney General, the Deputy Attorney General, the
Associate Attorney General, any Assistant Attorney General,
any acting Assistant Attorney General, any United States
attorney, any acting United States attorney, or the principal
prosecuting attorney of any State or political subdivision
thereof acting pursuant to a statute of that State may access
or use an electronic communications device to acquire
geolocation information if the investigative or law
enforcement officer reasonably determines that--
``(A) an emergency situation exists that--
``(i) involves--
``(I) immediate danger of death or serious bodily injury to
any person;
``(II) conspiratorial activities characteristic of
organized crime; or
``(III) an immediate threat to national security; and
``(ii) requires the accessing or use of an electronic
communications device to acquire geolocation information
before an order authorizing the acquisition may, with due
diligence, be obtained; and
``(B) there are grounds upon which an order could be
entered under this section to authorize the accessing or use
of an electronic communications device to acquire geolocation
information.
``(2) Order and termination.--If an investigative or law
enforcement officer accesses or uses an electronic
communications device to acquire geolocation information
under paragraph (1)--
``(A) not later than 48 hours after the activity to acquire
the geolocation information has occurred, or begins to occur,
the investigative or law enforcement officer shall seek a
warrant or order described in subsection (b) approving the
acquisition; and
``(B) unless a warrant or order described in subsection (b)
is issued approving the acquisition, the activity to acquire
the geolocation information shall terminate immediately at
the earlier of the time--
``(i) the information sought is obtained;
``(ii) the application for the warrant or order is denied;
or
``(iii) at which 48 hours have elapsed since the activity
to acquire the geolocation information began to occur.
``(3) Violation and suppression of evidence.--
``(A) In general.--In a circumstance described in
subparagraph (B), a court may determine that--
``(i) no information obtained, or evidence derived from,
geolocation information acquired as part of the accessing or
use of an electronic communications device to acquire
geolocation information may be received into evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof; and
``(ii) no information concerning any person acquired from
the geolocation information may be used or disclosed in any
other manner, without the consent of the person.
``(B) Circumstances.--A circumstance described in this
subparagraph is any instance in which--
``(i) an investigative or law enforcement officer does
not--
``(I) obtain a warrant or order described in subsection (b)
within 48 hours of commencing the accessing or use of the
electronic communications device; or
``(II) terminate the activity to acquire geolocation
information in accordance with paragraph (2)(B); or
``(ii) a court denies the application for a warrant or
order approving the accessing or use of an electronic
communications device to acquire geolocation information.
``(e) Assistance and Compensation.--
``(1) In general.--A warrant described in subsection (b)(1)
authorizing the accessing or use of an electronic
communications device to acquire geolocation information
shall, upon request of the applicant, direct that a provider
of electronic communication service, remote computing
service, or geolocation information service shall provide to
the applicant forthwith all information, facilities, and
technical assistance necessary to accomplish the acquisition
unobtrusively and with a minimum of interference with the
services that the provider is providing to or through the
electronic communications device in question.
``(2) Compensation.--Any provider of electronic
communication service, remote computing service, or
geolocation information service providing information,
facilities, or technical assistance under a directive under
paragraph (1) shall be compensated by the applicant for
reasonable expenses incurred in providing the information,
facilities, or assistance.
``(f) No Cause of Action Against a Provider.--No cause of
action shall lie in any court against any provider of
electronic communication service, remote computing service,
or geolocation information service, or an officer, employee,
or agent of the provider or other specified person for
providing information, facilities, or assistance necessary to
accomplish an acquisition of geolocation information
authorized under this section.''.
(b) Technical and Conforming Amendments.--Title 18 of the
United States Code is amended--
(1) in the table of sections for chapter 121, by adding at
the end the following:
``2713. Location tracking of electronic communications device.'';
(2) in section 2703--
(A) in subsection (d), as redesignated by section 3, by
inserting ``geolocation information service, or remote
computing service,'' after ``electronic communication
service,'';
(B) in subsection (e)(1), as redesignated by section 3, by
striking ``electronic communication services or a'' and
inserting ``electronic communication service, geolocation
information service, or''; and
(C) in subsection (f), as redesignated by section 3--
(i) by inserting ``, geolocation information service,''
after ``electronic communication service''; and
(ii) by inserting ``, geolocation information,'' after
``contents of communications'';
(3) in section 2711--
(A) in paragraph (3), by striking ``and'' at the end;
(B) in paragraph (4), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following:
``(5) the term `electronic communications device' means any
device that enables access to or use of an electronic
communications system, electronic communication service,
remote computing service, or geolocation information service;
``(6) the term `geolocation information'--
``(A) means any information concerning the location of an
electronic communications device that is in whole or in part
generated by or derived from the operation or use of the
electronic communications device;
``(B) does not include--
``(i) information described in section 2703(b)(2)(B); or
``(ii) the contents of a communication;
``(7) the term `geolocation information service' means the
provision of a global positioning service or other mapping,
locational, or directional information service;
``(8) the term `electronic communication identifiable
information' means the--
``(A) name of a person or entity;
``(B) address of a person or entity;
``(C) records of session times and durations of a person or
entity;
``(D) length of service and types of service used by a
person or entity;
``(E) telephone or instrument number or other subscriber
number or identity (including any temporarily assigned
network address) of a person or entity; and
``(F) dialing, routing, addressing, and signaling
information associated with each communication to or from the
subscriber account of a person or entity (including the date,
time, and duration of the communications, without
geographical limit);
``(9) the term `toll billing records' means the--
``(A) name of a person or entity;
``(B) address of a person or entity;
``(C) length of service of a person or entity; and
``(D) local and long distance billing records of a person
or entity; and
``(10) the term `customer' means any person, or authorized
representative of that person, who used or is using any
service provided by an electronic communication service,
remote computing service, or geolocation information service,
regardless of whether the service was, or is, being provided
for a monetary fee.''; and
(4) in section 3127--
(A) in paragraph (1), by striking ``and `contents' have''
and inserting `` `contents', and `geolocation information'
have'';
(B) in paragraph (3), by inserting `` or geolocation
information,'' after ``contents of any communication''; and
[[Page S3057]]
(C) in paragraph (4), by inserting ``or geolocation
information'' after ``contents of any communication''.
SEC. 6. REQUIRED DISCLOSURE OF LOCATION INFORMATION AND
WARRANT REQUIREMENT.
Section 2703 of title 18, United States Code, as amended by
section 3, is amended by adding at the end the following:
``(g) Location Information.--
``(1) In general.--Except as provided in paragraph (2), a
governmental entity may not require a provider of electronic
communication service, remote computing service, or
geolocation information service to disclose geolocation
information contemporaneously or prospectively.
``(2) Exceptions.--
``(A) Warrants.--A governmental entity may require a
provider of electronic communication service, remote
computing service, or geolocation information service to
disclose geolocation information contemporaneously or
prospectively pursuant to a warrant issued and executed in
accordance with the Federal Rules of Criminal Procedure (or,
in the case of a State court, issued using State warrant
procedures), issued by a court of competent jurisdiction.
``(B) Call for emergency services.--A provider of
electronic communication service, remote computing service,
or geolocation information service may provide geolocation
information contemporaneously or prospectively to a
governmental entity as permitted under section 222(d)(4) of
the Communications Act of 1934 (47 U.S.C. 222(d)(4)) in order
to respond to a call for emergency services by a user of an
electronic communications device.
``(3) Historical location information.--
``(A) In general.--A governmental entity may require a
provider of electronic communication service, remote
computing service, or geolocation information service to
disclose historical geolocation information pertaining to a
subscriber or customer of the provider only if the
governmental entity--
``(i) obtains a warrant issued and executed in accordance
with the Federal Rules of Criminal Procedure (or, in the case
of a State court, issued using State warrant procedures) that
is issued by a court of competent jurisdiction directing the
disclosure;
``(ii) obtains a court order directing the disclosure under
subsection (c); or
``(iii) has the consent of the subscriber or customer to
the disclosure.
``(B) Notice not required.--A governmental entity that
receives historical geolocation information under
subparagraph (A) is not required to provide notice to a
subscriber or customer.''.
SEC. 7. VOLUNTARY DISCLOSURES TO PROTECT CYBERSECURITY.
Section 2702 of title 18, United States Code is amended--
(1) in subsection (b)(5), by inserting ``, cybersecurity,''
after ``rights'';
(2) in subsection (c)(3), by inserting ``, cybersecurity,''
after ``rights''; and
(3) by adding at the end the following:
``(e) Reporting of Cybersecurity Disclosures.--On an annual
basis, the Attorney General of the United States shall submit
to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the
Senate a report containing--
``(1) the number of accounts from which the Federal
Government has received voluntary disclosures under
subsection (b)(5) that pertain to the protection of
cybersecurity; and
``(2) a summary of the basis for disclosure in each
instance where--
``(A) a voluntary disclosure under subsection (b)(5) that
pertains to the protection of cybersecurity was made to the
Department of Justice; and
``(B) the investigation pertaining to the disclosure was
closed without the filing of criminal charges.''.
SEC. 8. ELECTRONIC COMMUNICATION IDENTIFIABLE INFORMATION.
(a) In General.--Section 2709(a) of title 18, United States
Code, is amended by striking ``electronic communication
transactional records'' and inserting ``electronic
communication identifiable information''.
(b) Required Certification.--Section 2709(b) of title 18,
United States Code, is amended to read as follows:
``(b) Required Certification.--The Director of the Federal
Bureau of Investigation, or a designee in a position not
lower than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office
designated by the Director, may request the toll billing
records and electronic communication identifiable information
of a person or entity if the Director (or designee) certifies
in writing to the wire or electronic communication service
provider or geolocation information service provider to which
the request is made that the toll billing records and
electronic communication identifiable information sought are
relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a United
States person is not conducted solely on the basis of
activities protected by the First Amendment to the
Constitution of the United States.''.
______