[Congressional Record Volume 157, Number 68 (Tuesday, May 17, 2011)]
[Senate]
[Pages S3054-S3059]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      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today, this law is significantly outdated and out-paced by rapid 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.''.
                                 ______
                                 
      By Mr. BAUCUS (for himself, Mr. Hatch, Mr. Rockefeller, and Mr. 
        Enzi):
  S. 1013. A bill to renew the authority of the Secretary of Health and 
Human Services to approve demonstration projects designed to test 
innovative strategies in State child welfare programs; to the Committee 
on Finance.
  Mr. BAUCUS. Mr. President, the Finance Committee has a long history 
of working together in a bi-partisan fashion in the interest of 
children in Montana and across the Nation. I am happy to have you as a 
partner on child welfare issues. The Fostering Connections to Success 
and Increasing Adoptions Act of 2008 was a first step on the road to 
reforming the child welfare system. Today, with the introduction of the 
State Child Welfare Innovation Act, we take another step on the path 
toward making lives better for the children we serve.
  As the authors of this legislation, we build on the successes of 
waivers since they were first authorized in 1994. Since that time, 
these waivers have given States the flexibility needed to focus on new 
practices that prevent abuse and neglect and encourage permanency for 
children in our child welfare system.
  It is important for us to understand that the goal of reauthorizing 
child welfare waivers is not simply to develop and test new service 
delivery models, but to put in place sound practices that state 
innovation has determined to be effective in increasing positive 
outcomes for youth in the system.
  Our March 11 hearing entitled ``Innovations in Child Welfare 
Waivers'' continued a productive conversation and helped us to craft 
legislation to address some of the issues facing our Nation's most-
vulnerable youth. I was happy we were able to welcome two graduates of 
the foster care system to share their perspectives. In our 
conversations with youth, service providers and local government 
officials, we have noted the successes of the program in spurring 
innovative new practices while listening to the concerns regarding the 
challenges that they have faced in the implementation of these waivers 
and in the system overall.
  In this legislation, we continued to focus the waivers on producing 
improvements in three important areas: the prevention of abuse and 
neglect; safety for children at home and in placements; and permanency 
outcomes. We have also asked States to focus on increasing the quality 
of care for kids in the foster care system. We heard from youth about 
what is important to them, including knowing what your rights are and 
understanding how to reconnect with biological parents in a healthy 
way. I am so pleased we were able to work together to give States the 
opportunity and incentive to address these concerns.
  Mr. HATCH. Mr. President, I am also pleased to join with my partner 
on the Senate Finance Committee in producing bipartisan legislation 
that gives States increased flexibility to improve the lives of 
children and youth.
  The legislation we will introduce today is the product of many months 
of work and is the result of an open and transparent process bringing 
together relevant stakeholders. The Committee has heard from the state 
groups, the advocacy community and most importantly, youth both in and 
out of the foster care system. Young people in ``Foster Club,'' have a 
saying: ``Nothing about us, without us.'' We have taken their motto to 
heart and the legislation we are introducing today reflects years of 
input for youth in and out of foster care.
  I agree with the Chairman of the Finance Committee when he 
characterized the State Child Welfare Innovation Act as another step on 
the pathway to comprehensive child welfare reform.
  Comprehensive child welfare reform is desperately needed. The current 
financing system is antiquated, relying on an income eligibility proxy 
dating back to pre-welfare reform standards. The majority of Federal 
support goes to the least desirable outcome: the placement of a child 
or youth into foster care. Federal priorities should be aligned so that 
States are able to keep families together, safely.
  But financing reform is not enough. The underlying foster care system 
needs to be improved. Often times when children enter foster care, 
siblings are separated. Children and youth are shuttled from place to 
place. Their education is disrupted. Their ability to play sports or 
engage in after school

[[Page S3058]]

activities is thwarted. Under the current system, about 30,000 young 
people a year exit foster care without a permanent connection and are 
at risk for homelessness, incarceration and drug abuse.
  My State of Utah informs me that with flexibility, Utah can improve 
on the State's decade-old effort to protect children and strengthen 
families.
  As we look to make improvements to our social service delivery 
systems, we should be relying on the States to chart the way through 
flexibility and innovation. The States are the critical units within 
our constitutional democracy. The States are the laboratories of 
democracy, where appropriate solutions to problems are best crafted. 
The Federal Government needs to give States maximum flexibility in 
crafting solutions that work for their citizens. I am pleased that this 
legislation is consistent with that approach and look forward to making 
further progress to improve the lives of children and young people.
  Mr. BAUCUS. I am happy to introduce this legislation with my partner 
on the Senate Finance Committee, the Ranking Member of that Committee, 
Senator Hatch. I look forward to a new chapter in our work together 
that helps put our Nation's child welfare system on the pathway to 
reform.
                                 ______
                                 
      By Mrs. FEINSTEIN (for herself, Mr. Kyl, Mr. Cornyn, Ms. 
        Klobuchar, Mr. McCain, Mrs. Hutchison, and Mr. Franken):
  S. 1014. A bill to provide for additional Federal district 
judgeships; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I rise to introduce, together with my 
colleague and friend Senator Kyl, the Emergency Judicial Relief Act of 
2011.
  This bill would create a total of ten District judgeships in five 
courts across the country that are facing true emergency situations.
  I want to thank our cosponsors, Senators Cornyn, Klobuchar, Boxer, 
McCain, Hutchison, and Franken, for working with Senator Kyl and me on 
this bill.
  As a member of the Senate, I take very seriously our duty to ensure 
that the Nation's Federal courts have the resources they need to 
administer justice for the American people. Our Federal courts bear 
responsibility for adjudicating criminal cases, deciding civil rights 
and employment cases, and resolving commercial disputes between 
companies. When our courts become overburdened, we leave crime victims 
and criminal defendants in limbo and civil litigants without resolution 
to their problems.
  In the Eastern District of California, the need for additional judges 
is acute. This District, which extends over 87,000 miles and 
encompasses California's Central Valley, faces far and away the worst 
caseload crisis in the Nation.
  The District is home to more than eight million Californians, but it 
has only 6 active District Judges. For three decades, the District's 
population has been steadily growing, but the size of the Court has 
been unchanged. Congress has not created a permanent judgeship in the 
Eastern District since 1978 and the only temporary judgeship created 
was allowed to expire and never renewed despite repeated attempts by 
myself and Senator Leahy.
  The result is unacceptable. As of December 31, 2010, the District was 
managing 1,133 weighted filings per authorized judgeship, a caseload 
that is not only the highest in the Nation, but also 300 weighted 
filings per judge higher than any other District Court in the country 
and almost three times the threshold at which the Judicial Conference 
recommends additional judgeships.
  For everyday life, what this means is that individuals and businesses 
must wait months, or even years to have their disputes resolved. 
According to the most recent statistics, criminal felony cases remained 
pending in this court for a median of 12.7 months; and more than 10 
percent of all civil cases were taking more than 3 years from the date 
of filing to be decided.
  The delay is not for lack of effort. As Judge Lawrence O'Neill 
testified before the Senate Judiciary Committee in 2009, the Eastern 
District's judges are among the most productive in the Nation, and the 
court is utilizing every resource currently at its disposal. The 
caseloads are simply unmanageable.
  U.S. Supreme Court Chief Justice John Roberts has publicly remarked 
on the problems in the District; so has Associate Justice Anthony 
Kennedy; and the Judicial Conference of the United States has formally 
called on Congress to create more judgeships here.
  The Emergency Judicial Relief Act of 2011 would provide a narrow, 
targeted solution.
  The bill would create new judgeships in five Districts across the 
country where the need is most staggering, four in the Eastern District 
of California, two in the District of Arizona; two in the Western 
District of Texas; one in the Southern District of Texas; and one in 
the District of Minnesota. Additionally, the bill would convert a 
temporary judgeship in the District of Arizona and one in the Central 
District of California to permanent status. The bill would be offset by 
raising civil filing fees $10, from $350 to $360.
  Let me be clear. California needs far more judgeships than this bill 
would create, and I will work with my colleagues to create those badly 
needed judgeships.
  In the meantime, this bill is a narrow, emergency measure to provide 
relief in the handful of Districts that need it the very most.
  I urge my colleagues to work with me to pass this commonsense, good 
government bill.
  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. 1014

       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 ``Emergency Judicial Relief 
     Act of 2011''.

     SEC. 2. FEDERAL DISTRICT JUDGESHIPS.

       (a) Additional Permanent District Judgeship.--The President 
     shall appoint, by and with the advice and consent of the 
     Senate--
       (1) 2 additional district judges for the district of 
     Arizona;
       (2) 4 additional district judges for the eastern district 
     of California;
       (3) 1 additional district judge for the district of 
     Minnesota;
       (4) 1 additional district judge for the southern district 
     of Texas; and
       (5) 2 additional district judges for the western district 
     of Texas.
       (b) Conversion of Temporary Judgeships.--The existing 
     judgeships for the district of Arizona and the central 
     district of California authorized by section 312(c) of the 
     21st Century Department of Justice Appropriations 
     Authorization Act (28 U.S.C. 133 note; Public Law 107-273; 
     116 Stat. 1788), as of the effective date of this Act, shall 
     be authorized under section 133 of title 28, United States 
     Code, and the incumbents in those offices shall hold the 
     office under section 133 of title 28, United States Code, as 
     amended by this Act.
       (c) Technical and Conforming Amendments.--The table 
     contained in section 133(a) of title 28, United States Code, 
     is amended--
       (1) by striking the item relating to the district of 
     Arizona and inserting the following:


``Arizona..................................................        15'';
 

       (2) by striking the item relating to California and 
     inserting the following:


  ``California:
  Northern.................................................           14
  Eastern..................................................           10
  Central..................................................           28
  Southern.................................................        13'';
 

       (3) by striking the item relating to the district of 
     Minnesota and inserting the following:


``Minnesota................................................     8''; and
 

       (4) by striking the item relating to Texas and inserting 
     the following:


  ``Texas:
  Northern.................................................           12
  Southern.................................................           20
  Eastern..................................................            7
  Western..................................................        15''.
 

       (d) Increase in Filing Fees.--Section 1914(a) of title 28, 
     United States Code, is amended by striking ``$350'' and 
     inserting ``$360''.
                                 ______
                                 
      By Mr. BINGAMAN (for himself, Mr. Crapo, Mr. Kerry, Ms. Snowe, 
        Mr. Cardin, and Mr. Grassley):
  S. 1016. A bill to amend the Internal Revenue Code of 1986 to 
permanently modify the limitations on the deduction of interest by 
financial institutions which hold tax-exempt bonds, and for other 
purposes; to the Committee on Finance.
  Mr. BINGAMAN. Mr. President, I rise today to introduce the Municipal 
Bond Market Support Act of 2011. This bill is

[[Page S3059]]

similar to ones that Senator Crapo and I introduced in the 110th and 
111th Congresses. I am grateful for Senator Crapo's continued 
leadership on this issue, as well as the cosponsorship of our Finance 
Committee colleagues, Senators Kerry, Snowe, Cardin, and Grassley.
  Municipal bonds have long played an essential role in financing the 
construction, expansion, and repair of schools; highways, roads, and 
bridges; affordable housing; hospitals; public transit; water and 
sewage systems; and community-owned utilities. Since the enactment of 
the Federal income tax in 1913, Congress has supported the municipal 
bond market by exempting municipal bond interest from taxation. Tax 
exemption confers Federal assistance on State and local capital 
investments; it also recognizes that decisions about which projects to 
fund are most appropriately made at the State or local level.
  Historically, banks were significant purchasers of tax-exempt debt. 
But the Tax Reform Act of 1986 severely curtailed banks' participation 
by automatically disallowing deductions for interest expense whenever 
municipal bonds are purchased. The 1986 Act left an exception only for 
bonds purchased from smaller municipalities, those selling no more than 
$10 million of bonds each year. But because the $10 million level was 
not indexed to inflation, its purchasing power has eroded significantly 
since 1986, leaving many smaller governments and non-profit educational 
and health care facilities either to defer projects to comply with this 
low limit or find non-bank purchasers.
  I was very pleased that the American Recovery and Reinvestment Act 
incorporated a bill that Senator Crapo and I introduced, the Municipal 
Bond Market Support Act of 2009, raising the $10 million small issuer 
exception to $30 million. Additionally, the Recovery Act included a 
provision ensuring that the small issuer is made applicable at the 
ultimate borrower level, so that bonds benefiting non-profit 
universities and hospitals will not exceed the limitation merely 
because they issue bonds through statewide authorities.
  Taken together, those steps significantly enhanced demand for debt 
issued by small municipal governments, enabling municipalities across 
the Nation, and particularly those in small and rural communities, to 
finance the critical infrastructure projects that play an important 
role in growing our national economy.
  In 2009, the dollar amount of bank qualified issuances reached $32.7 
billion, double the prior year's level, with more than 6,000 issuances. 
Beneficiaries included a broad range of counties, cities, and school 
districts in all corners of my home state of New Mexico. For instance, 
the proceeds of a $17 million bond issued by Santa Fe County financed 
roads, trails and parks for open space, a fire facility, a solid waste 
transfer station, water rights acquisition and water projects. The City 
of Artesia completed two bank-qualified transactions, to finance 
building a public safety complex and a new waste water treatment 
facility. The Bloomfield School District placed $19 million in bank-
qualified debt to finance capital expenditures. Similarly, in 2010, 
issuances climbed even further, to $36.8 billion, with more than 6,700 
issuances representing a similarly diverse array of counties, cities, 
school districts, infrastructure districts, and hospitals across my 
home state of New Mexico and the country.
  The ARRA-enacted provisions helped small communities across New 
Mexico and the country finance critical infrastructure needs and create 
jobs. The higher bank-qualified limit is a great success and deserves 
to be made permanent. The bill that Senators Crapo, Kerry, Snowe, 
Cardin, Grassley, and I are introducing today would do just that, 
ensuring that smaller governments and non-profit educational and health 
care facilities can finance their capital needs, particularly in 
periods of tight credit, and save taxpayer dollars.
  At least 14 national organizations representing issuers of tax-exempt 
bonds are supporting the Act. These include the American Hospital 
Association; American Public Power Association; Council of Development 
Finance Authorities; Council of Infrastructure Financing Authorities; 
Government Finance Officers Association; International City/County 
Management Association; International Municipal Lawyers Association; 
National Association of College and University Business Officers; 
National Association of Counties; National Association of Health and 
Educational Facilities Finance Authorities; National Association of 
State Auditors, Comptrollers, and Treasurers; National Association of 
State Treasurers; National League of Cities; and the U.S. Conference of 
Mayors. I urge my colleagues to join these organizations in supporting 
our bill, to ensure that small municipalities across the country are 
able to finance critical infrastructure projects at reduced costs to 
their residents.
  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. 1016

       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 ``Municipal Bond Market 
     Support Act of 2011''.

     SEC. 2. PERMANENT MODIFICATION OF SMALL ISSUER EXCEPTION TO 
                   TAX-EXEMPT INTEREST EXPENSE ALLOCATION RULES 
                   FOR FINANCIAL INSTITUTIONS.

       (a) Permanent Increase in Limitation.--Subparagraphs 
     (C)(i), (D)(i), and (D)(iii)(II) of section 265(b)(3) of the 
     Internal Revenue Code of 1986 are each amended by striking 
     ``$10,000,000'' and inserting ``$30,000,000''.
       (b) Permanent Modification of Other Special Rules.--
     Paragraph (3) of section 265(b) of the Internal Revenue Code 
     of 1986 is amended--
       (1) by redesignating clauses (iv), (v), and (vi) of 
     subparagraph (G) as clauses (ii), (iii), and (iv) of such 
     subparagraph, respectively, and
       (2) by striking so much of subparagraph (G) as precedes 
     such clauses and inserting the following:
       ``(G) Qualified 501(c)(3) bonds treated as issued by exempt 
     organization.--In the case of a qualified 501(c)(3) bond (as 
     defined in section 145), this paragraph shall be applied by 
     treating the 501(c)(3) organization for whose benefit such 
     bond was issued as the issuer.
       ``(H) Special rule for qualified financings.--
       ``(i) In general.--In the case of a qualified financing 
     issue--

       ``(I) subparagraph (F) shall not apply, and
       ``(II) any obligation issued as a part of such issue shall 
     be treated as a qualified tax-exempt obligation if the 
     requirements of this paragraph are met with respect to each 
     qualified portion of the issue (determined by treating each 
     qualified portion as a separate issue which is issued by the 
     qualified borrower with respect to which such portion 
     relates).''.

       (c) Inflation Adjustment.--Paragraph (3) of section 265(b) 
     of the Internal Revenue Code of 1986, as amended by 
     subsection (b), is amended by adding at the end the following 
     new subparagraph:
       ``(I) Inflation adjustment.--In the case of any calendar 
     year after 2011, the $30,000,000 amounts contained in 
     subparagraphs (C)(i), (D)(i), and (D)(iii)(II) shall each be 
     increased by an amount equal to--
       ``(i) such dollar amount, multiplied by
       ``(ii) the cost-of-living adjustment determined under 
     section 1(f)(3) for such calendar year, determined by 
     substituting `calendar year 2010' for `calendar year 1992' in 
     subparagraph (B) thereof.

     Any increase determined under the preceding sentence shall be 
     rounded to the nearest multiple of $100,000.''.
       (d) Effective Date.--The amendments made by this section 
     shall apply to obligations issued after the date of the 
     enactment of this Act.

                          ____________________