[Congressional Record Volume 161, Number 125 (Tuesday, August 4, 2015)]
[Senate]
[Pages S6301-S6303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2556. Mr. LEE (for himself, Mr. Leahy, Mr. Durbin, and Mr. Heller)
submitted an amendment intended to be proposed by him to the bill S.
754, to improve cybersecurity in the United States through enhanced
sharing of information about cybersecurity threats, and for other
purposes; which was ordered to lie on the table; as follows:
At the end, add the following:
TITLE II--ELECTRONIC COMMUNICATIONS PRIVACY ACT AMENDMENTS
SEC. 201. SHORT TITLE.
This title may be cited as the ``Electronic Communications
Privacy Act Amendments Act of 2015''.
[[Page S6302]]
SEC. 202. 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. 203. 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).
``(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. 204. 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 one 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 one 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.
[[Page S6303]]
``(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. 205. EVALUATION BY THE GOVERNMENT ACCOUNTABILITY OFFICE.
Not later than September 30, 2017, the Comptroller General
of the United States shall submit to Congress a report
regarding the disclosure of customer communications and
records under section 2703 of title 18, United States Code,
which shall include--
(1) an analysis and evaluation of such disclosure under
section 2703 of title 18, United States Code, as in effect
before the date of enactment of this Act, including--
(A) a comprehensive analysis and evaluation regarding the
number of individual instances, in each of the 5 years before
the year in which this Act is enacted, in which Federal,
State, or local law enforcement officers used section 2703 of
title 18, United States Code, to obtain information relevant
to an ongoing criminal investigation;
(B) an analysis of the average length of time taken by a
provider of an electronic communication service or a remote
computing service to comply with requests by law enforcement
officers for information under section 2703 of title 18,
United States Code;
(C) the number of individual instances, in each of the 5
years before the year in which this Act is enacted, in which
information was requested by law enforcement officers from a
provider of an electronic communication service or a remote
computing service under a warrant as authorized under section
2703(a) of title 18, United States Code;
(D) the number of individual instances and type of request,
in each of the 5 years before the year in which this Act is
enacted, in which information was requested by law
enforcement officers from a provider of an electronic
communication service or a remote computing service under the
other information request provisions in section 2703 of title
18, United States Code; and
(E) the number of individual instances, in each of the 5
years before the year in which this Act is enacted, in which
law enforcement officers requested delayed notification to
the subscriber or customer under section 2705 of title 18,
United States Code; and
(2) an analysis and evaluation of such disclosure under
section 2703 of title 18, United States Code, as amended by
this title, including--
(A) an evaluation of the effects of the amendments to the
warrant requirements on judges, court dockets, or any other
court operations;
(B) a survey of Federal, State, and local judges and law
enforcement officers to determine the average length of time
required for providers of an electronic communication service
or a remote computing service to provide the contents of
communications requested under a search warrant, which shall
include identifying the number of instances in which a judge
was required to order a provider of an electronic
communication service or a remote computing service to appear
to show cause for failing to comply with a warrant or to
issue an order of contempt against a provider of an
electronic communication service or a remote computing
service for such a failure; and
(C) determining whether the amendments to the warrant
requirements resulted in an increase in the use of the
emergency exception under section 2702(b)(8) of title 18,
United States Code.
SEC. 206. RULE OF CONSTRUCTION.
Nothing in this title or an amendment made by this title
shall be construed to preclude the acquisition by the United
States Government of--
(1) the contents of a wire or electronic communication
pursuant to other lawful authorities, including the
authorities under chapter 119 of title 18 (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 not specifically amended by this title; or
(2) records or other information relating to a subscriber
or customer of any electronic communications service or
remote computing service (not including the content of such
communications) pursuant to the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), chapter
119 of title 18 (commonly known as the ``Wiretap Act''), or
any other provision of Federal law not specifically amended
by this title.
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