[Congressional Record Volume 161, Number 125 (Tuesday, August 4, 2015)]
[Senate]
[Pages S6307-S6308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2574. Mr. HATCH 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--LAW ENFORCEMENT ACCESS TO DATA STORED ABROAD ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ``The Law Enforcement Access
to Data Stored Abroad Act''.
[[Page S6308]]
SEC. 202. FINDINGS.
Congress finds the following:
(1) The Electronic Communications Privacy Act of 1986
(Public Law 99-508; 100 Stat. 1848) (referred to in this
section as ``ECPA'') was intended to protect the privacy of
electronic communications stored with providers of electronic
communications services and remote computing services, while
balancing the legitimate needs of law enforcement to access
records stored by such providers.
(2) To strike this balance, ECPA authorized governmental
entities to obtain certain categories of communications data
from providers using established, pre-existing forms of
process--warrants and subpoenas. It also created a new form
of court order, in section 2703(d) of title 18, United States
Code, that governmental entities could use to obtain
additional types of communications data.
(3) It has been well established that courts in the United
States lack the power to issue warrants authorizing
extraterritorial searches and seizures, and neither ECPA nor
subsequent amendments extended the warrant power of courts in
the United States beyond the territorial reach of the United
States.
(4) Nevertheless, Congress also recognizes the legitimate
needs of law enforcement agencies in the United States to
obtain, through lawful process, electronic communications
relevant to criminal investigations related to United States
persons wherever that content may be stored. Therefore, this
title authorizes the use of search warrants
extraterritorially only where the Government seeks to obtain
the contents of electronic communications belonging to a
United States person.
SEC. 203. SCOPE AND CLARIFICATION OF WARRANT REQUIREMENT.
(a) In General.--Chapter 121 of title 18, United States
Code, is amended--
(1) in section 2702(a), by amending paragraph (3) 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.'';
(2) in section 2703--
(A) by striking subsections (a) and (b) and inserting the
following:
``(a) Contents of Wire or Electronic Communication in
Electronic Storage.--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
pursuant to 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) by a
court of competent jurisdiction. Subject to subsection (b), a
warrant issued pursuant to this subsection may be used to
require the disclosure of contents of a wire or electronic
communication that are in the provider's electronic storage
within the United States or otherwise stored, held, or
maintained within the United States by the provider.
``(b) Warrant Requirements.--A warrant issued under
subsection (a) may require the disclosure of the contents of
a wire or electronic communication, regardless of where such
contents may be in electronic storage or otherwise stored,
held, or maintained by the provider, if the account-holder
whose contents are sought by the warrant is a United States
person. A court issuing a warrant pursuant to this
subsection, on a motion made promptly by the service
provider, shall modify or vacate such warrant if the court
finds that the warrant would require the provider of an
electronic communications or remote computing service to
violate the laws of a foreign country.'';
(B) in subsection (d), in the first sentence--
(i) by striking ``(b) or'';
(ii) by striking ``the contents of a wire or electronic
communication, or''; and
(iii) by striking ``sought, are'' and inserting ``sought
are''; and
(C) 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.
``(i) Notice.--Except as provided in section 2705, not
later than 10 business 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 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) notice that informs the customer or subscriber--
``(A) of the nature of the law enforcement inquiry with
reasonable specificity; and
``(B) 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.'';
(3) in section 2704(a)(1), by striking ``section
2703(b)(2)'' and inserting ``section 2703'';
(4) in section 2705--
(A) in subsection (a), by striking paragraph (1) and
inserting the following:
``(1) A governmental entity that is seeking a warrant under
section 2703 may include in the application for the warrant a
request, which the court shall grant, for an order delaying
the notification required under section 2703(i) for a period
of not more than 90 days, if the court determines that there
is reason to believe that notification of the existence of
the warrant may have an adverse result described in paragraph
(2) of this subsection.''; and
(B) in subsection (b), in the matter preceding paragraph
(1), by striking ``under section 2703(b)(1)''; and
(5) in section 2711--
(A) in paragraph (3)(B) by striking ``warrants; and'' and
inserting ``warrants'';
(B) in paragraph (4) by striking ``thereof.'' and inserting
``thereof; and''; and
(C) by adding at the end the following:
``(5) the term `United States person' means a citizen or
permanent resident alien of the United States, or an entity
or organization organized under the laws of the United States
or a State or political subdivision thereof.''.
SEC. 204. MUTUAL LEGAL ASSISTANCE TREATY REFORMS.
(a) Mutual Legal Assistance Treaty Transparency and
Efficiency.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Attorney General shall establish--
(A) a form for use by a foreign government filing a mutual
legal assistance treaty request (referred to in this section
as an ``MLAT request''), which shall--
(i) be made available on the website of the Department of
Justice; and
(ii) require sufficient information and be susceptible for
use by a foreign government to provide all the information
necessary for the MLAT request; and
(B) an online docketing system for all MLAT requests, which
shall allow a foreign government to track the status of an
MLAT request filed by the foreign government.
(2) Annual publication.--Beginning not later than 1 year
after the date of enactment of this Act, and each year
thereafter, the Attorney General shall publish on the website
of the Department of Justice statistics on--
(A)(i) the number of MLAT requests made by the Department
of Justice to foreign governments for the purpose of
obtaining the contents of an electronic communication or
other information or records from a provider of electronic
communications or remote computing services; and
(ii) the average length of time taken by foreign
governments to process the MLAT requests described in clause
(i); and
(B)(i) the number of MLAT requests made to the Department
of Justice by foreign governments for the purpose of
obtaining the contents of an electronic communication or
other information or records from a provider of electronic
communications or remote computing services; and
(ii) the average length of time taken by the Department of
Justice to process the MLAT requests described in clause (i).
(3) Notice to department of state.--The Attorney General
shall notify the Secretary of State not later than 7 days
after the date on which disclosure of electronic
communications content to a foreign government is made
pursuant to an MLAT request.
(b) Preservation of Records.--The Attorney General may
issue a request pursuant to section 2703(f) of title 18,
United States Code, upon receipt of an MLAT request that
appears to be facially valid.
(c) Notification to Provider of MLAT Request.--When the
Attorney General makes use of the process provided in section
2703 of title 18, United States Code, to obtain information
from an electronic communications provider or a remote
computing provider based on an MLAT request, the Attorney
General shall notify that provider in writing that the
request has been made pursuant to a mutual legal assistance
treaty.
SEC. 205. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) data localization requirements imposed by foreign
governments on data providers are--
(A) incompatible with the borderless nature of the
Internet;
(B) an impediment to online innovation; and
(C) unnecessary to meet the needs of law enforcement; and
(2) the Department of Justice, the Department of State, and
the United States Trade Representatives should pursue open
data flow policies with foreign nations.
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