[Congressional Record Volume 159, Number 40 (Tuesday, March 19, 2013)]
[Senate]
[Pages S1951-S1953]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Lee):
  S. 607. 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 2013--a bill to 
strengthen the privacy protections for email and other electronic 
communications. Last year, the Judiciary Committee favorably reported 
substantially similar legislation with strong bipartisan support. I 
thank Republican Senator Mike Lee for cosponsoring this important 
privacy bill. Senator Lee and I understand that protecting Americans' 
privacy rights is something that is important to all Americans, 
regardless of political party or ideology. I hope that all Senators 
will support this bill and that

[[Page S1952]]

the Senate will pass this privacy legislation this year.
  Like many Americans, I am concerned about growing and unwelcome 
intrusions into our private lives in cyberspace. I also understand that 
we must update our digital privacy laws to keep pace with these threats 
and the rapid advances in technology.
  When I led the effort to write ECPA 27 years ago, email was a 
novelty. No one could have imagined the way the Internet and mobile 
technologies would transform how we communicate and exchange 
information today. Three decades later, we must update this law to 
reflect the realities of our time, so that our Federal privacy laws 
keep pace with American innovation and the changing mission of our law 
enforcement agencies.
  My bill takes several important steps to improve Americans' digital 
privacy rights, while also promoting new technologies, like cloud 
computing, and accommodating the legitimate needs of law enforcement. 
First, the bill requires that the government obtain a search warrant 
based on probable cause to obtain the content of Americans' email and 
other electronic communications, when those communications are 
requested from a third-party service provider. There are balanced 
exceptions to the warrant requirement to address emergency 
circumstances and to protect national security under current law.
  Second, the bill requires that the government promptly notify any 
individual whose email content has been accessed via a third-party 
service provider, and provide that individual with a copy of the search 
warrant and other details about the information obtained. The bill 
permits the government to seek a court order temporarily delaying such 
notice in order to protect the integrity of ongoing government 
investigations. In addition, the bill permits the government to ask a 
court to temporarily preclude a service provider from notifying a 
customer about the disclosure.
  The bill contains several important provisions to ensure that the 
reforms to ECPA do not hinder law enforcement. The bill adds a new 
notice requirement to the law that requires service providers to notify 
the government of their intent to inform a customer about a disclosure 
of electronic communications information at least three business days 
before giving such notice. Furthermore, to help law enforcement 
investigate and prosecute corporate wrongdoing, the bill adds civil 
discovery subpoenas to the existing tools that the government may use 
to obtain non-content information under ECPA.
  In addition, the bill makes clear that the government may also 
continue to use administrative, civil discovery and grand jury subpoena 
to obtain corporate email and other electronic communications directly 
from a corporate entity, when those communications are contained on an 
internal email system. Lastly, the bill also provides that the search 
warrant requirement in the bill does not apply to other Federal 
criminal or national security laws, including Title III of the Omnibus 
Crime Control and Safe Streets Act of 1986, commonly known as the 
Wiretap Act, and the Foreign Intelligence Surveillance Act of 1978, 50 
U.S.C. Sec.  1801, et seq., commonly known as FISA.
  Since I first put forward proposals to update ECPA in early 2011, I 
have worked to make sure that these updates carefully balance privacy 
interests, the needs of law enforcement and the interests of our 
thriving American tech sector. During the past 2 years, I have 
consulted with many stakeholders from the Federal, state and local law 
enforcement communities, including--the Department of Justice, the 
Federal Trade Commission, the Securities and Exchange Commission, the 
International Association of Chiefs of Police, the Federal Law 
Enforcement Officers Association, the Association of State Criminal 
Investigative Agencies, and the National Sheriffs Association. I have 
also consulted closely with many leaders in the privacy, civil 
liberties, civil rights and technology communities who support these 
reforms.
  The 113th Congress has an important opportunity to address the 
digital privacy challenges that Americans face today. We should do so 
by enacting the commonsense privacy reforms contained in this bill.
  When the Senate Judiciary Committee favorably reported the Electronic 
Communications Privacy Act on September 19, 1986, it did so with the 
unanimous support of all Democratic and Republican Senators. At the 
time, the Committee recognized that protecting Americans' privacy 
rights should not be a partisan issue.
  In that bipartisan spirit, I am pleased to join with Senator Lee in 
urging the Congress to enact these important privacy reforms without 
delay. Senator Lee and I are joined in this effort by a broad coalition 
of more than 50 privacy, civil liberties, civil rights and tech 
industry leaders from across the political spectrum that have also 
endorsed the ECPA reform effort. I thank the Digital Due Process 
Coalition, the Digital 4th Coalition and the many other individuals and 
organizations that have advocated for ECPA reform for their support. I 
hope that all Members of the Senate will follow their example, so that 
we can enact this digital privacy bill with strong, bipartisan support.
  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. 607

       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 2013''.

     SEC. 2. CONFIDENTIALITY OF ELECTRONIC COMMUNICATIONS.

       Section 2702(a)(3) of title 18, United States Code, is 
     amended to read as follows:
       ``(3) a provider of remote computing service or electronic 
     communication 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 service.''.

     SEC. 3. ELIMINATION OF 180-DAY RULE; 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.--A 
     governmental entity may require the disclosure by a provider 
     of electronic communication service or remote computing 
     service of the contents of a wire or electronic communication 
     that is in electronic storage with or otherwise stored, held, 
     or maintained by the provider only if the governmental entity 
     obtains a warrant issued using the procedures described in 
     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) Notice.--Except as provided in section 2705, not 
     later than 10 business days in the case of a law enforcement 
     agency, or not later than 3 business days in the case of any 
     other governmental entity, 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 or remote computing service under 
     subsection (a), 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--
       ``(1) a copy of the warrant; and
       ``(2) a notice that includes the information referred to in 
     clauses (i) and (ii) of section 2705(a)(4)(B).
       ``(c) Records Concerning Electronic Communication Service 
     or Remote Computing Service.--
       ``(1) In general.--Subject to paragraph (2), a governmental 
     entity may require a provider of electronic communication 
     service or remote computing 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 using the procedures 
     described in 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 (d);
       ``(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).

[[Page S1953]]

       ``(2) Information to be disclosed.--A provider of 
     electronic communication service or remote computing service 
     shall, in response to an administrative subpoena authorized 
     by Federal or State statute, a grand jury, trial, or civil 
     discovery subpoena, or any means authorized under paragraph 
     (1), disclose to a governmental entity the--
       ``(A) name;
       ``(B) address;
       ``(C) local and long distance telephone connection records, 
     or records of session times and durations;
       ``(D) length of service (including start date) and types of 
     service used;
       ``(E) telephone or instrument number or other subscriber 
     number or identity, including any temporarily assigned 
     network address; and
       ``(F) means and source of payment for such service 
     (including any credit card or bank account number), of a 
     subscriber or customer of such service.
       ``(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 adding at the end the following:
       ``(h) Rule of Construction.--Nothing in this section or in 
     section 2702 shall be construed to limit the authority of a 
     governmental entity to use an administrative subpoena 
     authorized under a Federal or State statute or to use a 
     Federal or State grand jury, trial, or civil discovery 
     subpoena to--
       ``(1) require an originator, addressee, or intended 
     recipient of an electronic communication to disclose the 
     contents of the electronic communication to the governmental 
     entity; or
       ``(2) require an entity that provides electronic 
     communication services to the officers, directors, employees, 
     or agents of the entity (for the purpose of carrying out 
     their duties) to disclose the contents of an electronic 
     communication to or from an officer, director, employee, or 
     agent of the entity to a governmental entity, if the 
     electronic communication is held, stored, or maintained on an 
     electronic communications system owned or operated by the 
     entity.''.
       (b) Technical and Conforming Amendments.--Section 2703(d) 
     of title 18, United States Code, is amended--
       (1) by striking ``A court order for disclosure under 
     subsection (b) or (c)'' and inserting ``A court order for 
     disclosure under subsection (c)''; and
       (2) by striking ``the contents of a wire or electronic 
     communication, or''.

     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(b) for a period of 
     not more than 180 days in the case of a law enforcement 
     agency, or not more than 90 days in the case of any other 
     governmental entity.
       ``(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; or
       ``(E) otherwise seriously jeopardizing an investigation or 
     unduly delaying a trial.
       ``(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 180 
     days in the case of a law enforcement agency, or not more 
     than 90 days in the case of any other governmental entity.
       ``(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) of the nature of the law enforcement inquiry with 
     reasonable specificity;
       ``(ii) that information maintained for the customer or 
     subscriber by the provider of electronic communication 
     service or remote computing service named in the process or 
     request was supplied to, or requested by, the governmental 
     entity;
       ``(iii) of the date on which the warrant was served on the 
     provider and the date on which the information was provided 
     by the provider to the governmental entity;
       ``(iv) that notification of the customer or subscriber was 
     delayed;
       ``(v) the identity of the court authorizing the delay; and
       ``(vi) 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 may apply to a court for an order 
     directing a provider of electronic communication service or 
     remote computing service to which a warrant, order, subpoena, 
     or other directive under section 2703 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 180 days in the case of a law enforcement agency, or not 
     more than 90 days in the case of any other governmental 
     entity.
       ``(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; or
       ``(E) otherwise seriously jeopardizing an investigation or 
     unduly delaying a trial.
       ``(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 180 days in the case of 
     a law enforcement agency, or not more than 90 days in the 
     case of any other governmental entity.
       ``(4) Prior notice to law enforcement.--Upon expiration of 
     the period of delay of notice under this section, and not 
     later than 3 business days before providing notice to a 
     customer or subscriber, a provider of electronic 
     communication service or remote computing service shall 
     notify the governmental entity that obtained the contents of 
     a communication or information or records under section 2703 
     of the intent of the provider of electronic communication 
     service or remote computing service to notify the customer or 
     subscriber of the existence of the warrant, order, or 
     subpoena seeking that information.
       ``(c) Definition.--In this section and section 2703, the 
     term `law enforcement agency' means an agency of the United 
     States, a State, or a political subdivision of a State, 
     authorized by law or by a government agency to engage in or 
     supervise the prevention, detection, investigation, or 
     prosecution of any violation of criminal law, or any other 
     Federal or State agency conducting a criminal 
     investigation.''.

     SEC. 5. RULE OF CONSTRUCTION.

       Nothing in this Act or an amendment made by this Act shall 
     be construed to apply the warrant requirement for contents of 
     a wire or electronic communication authorized under this Act 
     or an amendment made by this Act to any other section of 
     title 18, United States Code (including chapter 119 of such 
     title (commonly known as the ``Wiretap Act'')), the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.), or any other provision of Federal law.
                                 ______