[Congressional Record Volume 163, Number 149 (Thursday, September 14, 2017)]
[Senate]
[Pages S5750-S5753]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1060. Mr. GRAHAM (for himself and Mr. Whitehouse) submitted an
amendment intended to be proposed to amendment SA 1003 proposed by Mr.
McCain (for himself and Mr. Reed) to the bill H.R. 2810, to authorize
appropriations for fiscal year 2018 for military activities of the
Department of Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military personnel
strengths for such fiscal year, and for other purposes; which was
ordered to lie on the table; as follows:
At the end of title X, add the following:
Subtitle H--Bilateral Access to Foreign Data
SEC. 1091. SHORT TITLE.
This subtitle may be cited as the ``Bilateral Access to
Foreign Data Act of 2017''.
SEC. 1092. CONGRESSIONAL FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Timely access to electronic data held by
communications-service providers is an essential component of
government efforts to protect public safety and combat
serious crime, including terrorism.
(2) Such efforts by the United States Government are being
impeded by the inability to access the content of data stored
outside the United States that is in the custody, control, or
possession of communications-service providers that are
subject to jurisdiction of the United States.
(3) Foreign governments also increasingly seek access to
electronic data held by communications service providers in
the United States for the purpose of combating serious crime.
(4) Communications-service providers face potential
conflicting legal obligations when a foreign government
orders production of electronic data that United States law
may prohibit providers from disclosing.
(5) Foreign law may create similarly conflicting legal
obligations when the United States Government orders
production of electronic data that foreign law prohibits
communications-service providers from disclosing.
(6) International agreements provide a mechanism for
resolving these potential conflicting legal obligations where
the United States and the relevant foreign government share a
common commitment to the rule of law and the protection of
privacy and civil liberties.
(b) Purposes.--The purposes of this subtitle are to--
(1) provide authority to implement international agreements
to resolve potential conflicting legal obligations arising
from cross-border requests for the production of electronic
data where the foreign government targets non-United States
persons outside the United States in connection with the
prevention, detection, investigation, or prosecution of
serious crime; and
(2) ensure reciprocal benefits to the United States of such
international agreements.
SEC. 1093. AMENDMENTS TO CURRENT COMMUNICATIONS LAWS.
Title 18, United States Code, is amended--
(1) in chapter 119--
(A) in section 2511(2) by adding at the end the following:
[[Page S5751]]
``(j) It shall not be unlawful under this chapter for a
provider of electronic communication service to the public or
remote computing service to intercept or disclose the
contents of a wire or electronic communication in response to
an order from a foreign government that is subject to an
executive agreement that the Attorney General has determined
and certified to Congress satisfies section 2523.''; and
(B) in section 2520(d), by amending paragraph (3) to read
as follows:
``(3) a good faith determination that section 2511(3),
2511(2)(i), or 2511(2)(j) of this title permitted the conduct
complained of;'';
(2) in chapter 121--
(A) in section 2702--
(i) in subsection (b)--
(I) in paragraph (8), by striking the period at the end and
inserting ``; or''; and
(II) by adding at the end the following:
``(9) to a foreign government pursuant to an order from a
foreign government that is subject to an executive agreement
that the Attorney General has determined and certified to
Congress satisfies section 2523.''; and
(ii) in subsection (c)--
(I) in paragraph (5), by striking ``or'' at the end;
(II) in paragraph (6), by striking the period at the end
and inserting ``; or''; and
(III) by adding at the end the following:
``(7) a foreign government pursuant to an order from a
foreign government that is subject to an executive agreement
that the Attorney General has determined and certified to
Congress satisfies section 2523.''; and
(B) in section 2707(e), by amending paragraph (3) to read
as follows:
``(3) a good faith determination that section 2511(3),
section 2702(b)(9), or section 2702(c)(7) of this title
permitted the conduct complained of;''; and
(3) in chapter 206--
(A) in section 3121(a), by inserting before the period at
the end the following: ``or an order from a foreign
government that is subject to an executive agreement that the
Attorney General has determined and certified to Congress
satisfies section 2523''; and
(B) in section 3124--
(i) by amending subsection (d) to read as follows:
``(d) No Cause of Action Against a Provider Disclosing
Information Under This Chapter.--No cause of action shall lie
in any court against any provider of a wire or electronic
communication service, its officers, employees, agents, or
other specified persons for providing information,
facilities, or assistance in accordance with a court order
under this chapter, request pursuant to section 3125 of this
title, or an order from a foreign government that is subject
to an executive agreement that the Attorney General has
determined and certified to Congress satisfies section
2523.''; and
(ii) by amending subsection (e) to read as follows:
``(e) Defense.--A good faith reliance on a court order
under this chapter, a request pursuant to section 3125 of
this title, a legislative authorization, a statutory
authorization, or a good faith determination that the conduct
complained of was permitted by an order from a foreign
government that is subject to executive agreement that the
Attorney General has determined and certified to Congress
satisfies section 2523, is a complete defense against any
civil or criminal action brought under this chapter or any
other law.''.
SEC. 1094. EXECUTIVE AGREEMENTS ON ACCESS TO DATA BY FOREIGN
GOVERNMENTS.
(a) In General.--Chapter 119 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 2523. Executive agreements on access to data by
foreign governments
``(a) Definitions.--In this section--
``(1) the term `lawfully admitted for permanent residence'
has the meaning given the term in section 101(a) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)); and
``(2) the term `United States person' means a citizen or
national of the United States, an alien lawfully admitted for
permanent residence, an unincorporated association a
substantial number of members of which are citizens of the
United States or aliens lawfully admitted for permanent
residence, or a corporation that is incorporated in the
United States.
``(b) Executive Agreement Requirements.--For purposes of
this chapter, chapter 121, and chapter 206, an executive
agreement governing access by a foreign government to data
subject to this chapter, chapter 121, or chapter 206 shall be
considered to satisfy the requirements of this section if the
Attorney General, with the concurrence of the Secretary of
State, determines, and submits a written certification of
such determination to Congress, that--
``(1) the domestic law of the foreign government, including
the implementation of that law, affords robust substantive
and procedural protections for privacy and civil liberties in
light of the data collection and activities of the foreign
government that will be subject to the agreement, if--
``(A) such a determination under this section takes into
account, as appropriate, credible information and expert
input; and
``(B) the factors to be considered in making such a
determination include whether the foreign government--
``(i) has adequate substantive and procedural laws on
cybercrime and electronic evidence, as demonstrated by being
a party to the Convention on Cybercrime, done at Budapest
November 23, 2001, and entered into force January 7, 2004, or
through domestic laws that are consistent with definitions
and the requirements set forth in chapters I and II of that
Convention;
``(ii) demonstrates respect for the rule of law and
principles of non-discrimination;
``(iii) adheres to applicable international human rights
obligations and commitments or demonstrates respect for
international universal human rights, including--
``(I) protection from arbitrary and unlawful interference
with privacy;
``(II) fair trial rights;
``(III) freedom of expression, association, and peaceful
assembly;
``(IV) prohibitions on arbitrary arrest and detention; and
``(V) prohibitions against torture and cruel, inhuman, or
degrading treatment or punishment;
``(iv) has clear legal mandates and procedures governing
those entities of the foreign government that are authorized
to seek data under the executive agreement, including
procedures through which those authorities collect, retain,
use, and share data, and effective oversight of these
activities;
``(v) has sufficient mechanisms to provide accountability
and appropriate transparency regarding the collection and use
of electronic data by the foreign government; and
``(vi) demonstrates a commitment to promote and protect the
global free flow of information and the open, distributed,
and interconnected nature of the Internet;
``(2) the foreign government has adopted appropriate
procedures to minimize the acquisition, retention, and
dissemination of information concerning United States persons
subject to the agreement; and
``(3) the agreement requires that, with respect to any
order that is subject to the agreement--
``(A) the foreign government may not intentionally target a
United States person or a person located in the United
States, and shall adopt targeting procedures designed to meet
this requirement;
``(B) the foreign government may not target a non-United
States person located outside the United States if the
purpose is to obtain information concerning a United States
person or a person located in the United States;
``(C) the foreign government may not issue an order at the
request of or to obtain information to provide to the United
States Government or a third-party government, nor shall the
foreign government be required to share any information
produced with the United States Government or a third-party
government;
``(D) an order issued by the foreign government--
``(i) shall be for the purpose of obtaining information
relating to the prevention, detection, investigation, or
prosecution of serious crime, including terrorism;
``(ii) shall identify a specific person, account, address,
or personal device, or any other specific identifier as the
object of the order;
``(iii) shall be in compliance with the domestic law of
that country, and any obligation for a provider of an
electronic communications service or a remote computing
service to produce data shall derive solely from that law;
``(iv) shall be based on requirements for a reasonable
justification based on articulable and credible facts,
particularity, legality, and severity regarding the conduct
under investigation;
``(v) shall be subject to review or oversight by a court,
judge, magistrate, or other independent authority; and
``(vi) in the case of an order for the interception of wire
or electronic communications, and any extensions thereof,
shall require that the interception order--
``(I) be for a fixed, limited duration; and
``(II) may not last longer than is reasonably necessary to
accomplish the approved purposes of the order; and
``(III) be issued only if the same information could not
reasonably be obtained by another less intrusive method;
``(E) an order issued by the foreign government may not be
used to infringe freedom of speech;
``(F) the foreign government shall promptly review material
collected pursuant to the agreement and store any unreviewed
communications on a secure system accessible only to those
persons trained in applicable procedures;
``(G) the foreign government shall, using procedures that,
to the maximum extent possible, meet the definition of
minimization procedures in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801),
segregate, seal, or delete, and not disseminate material
found not to be information that is, or is necessary to
understand or assess the importance of information that is,
relevant to the prevention, detection, investigation, or
prosecution of serious crime, including terrorism, or
necessary to protect against a threat of death or seriously
bodily harm to any person;
``(H) the foreign government may not disseminate the
content of a communication of a United States person to
United States authorities unless the communication may be
disseminated pursuant to subparagraph (G) and relates to
significant harm, or the threat thereof, to the United States
or United States persons, including crimes involving national
security such as terrorism, significant violent crime, child
exploitation,
[[Page S5752]]
transnational organized crime, or significant financial
fraud;
``(I) the foreign government shall afford reciprocal rights
of data access, to include, where applicable, removing
restrictions on communications service providers and thereby
allow them to respond when the United States Government
orders production of electronic data that foreign law would
otherwise prohibit communications-service providers from
disclosing;
``(J) the foreign government shall agree to periodic review
of compliance by the foreign government with the terms of the
agreement to be conducted by the United States Government;
and
``(K) the United States Government shall reserve the right
to render the agreement inapplicable as to any order for
which the United States Government concludes the agreement
may not properly be invoked.
``(c) Limitation on Judicial Review.--A determination or
certification made by the Attorney General under subsection
(b) shall not be subject to judicial or administrative
review.
``(d) Effective Date of Certification.--
``(1) Notice.--Not later than 7 days after the date on
which the Attorney General certifies an executive agreement
under subsection (b), the Attorney General shall provide
notice of the determination under subsection (b) and a copy
of the executive agreement to Congress, including--
``(A) the Committee on the Judiciary and the Committee on
Foreign Relations of the Senate; and
``(B) the Committee on the Judiciary and the Committee on
Foreign Affairs of the House of Representatives.
``(2) Entry into force.--An executive agreement that is
determined and certified by the Attorney General to satisfy
the requirements of this section shall enter into force not
earlier than the date that is 90 days after the date on which
notice is provided under paragraph (1), unless Congress
enacts a joint resolution of disapproval in accordance with
paragraph (4).
``(3) Consideration by committees.--
``(A) In general.--During the 60-day period beginning on
the date on which notice is provided under paragraph (1),
each congressional committee described in paragraph (1) may--
``(i) hold one or more hearings on the executive agreement;
and
``(ii) submit to their respective House of Congress a
report recommending whether the executive agreement should be
approved or disapproved.
``(B) Requests for information.--Upon request by the
Chairman or Ranking Member of a congressional committee
described in paragraph (1), the head of an agency shall
promptly furnish a summary of factors considered in
determining that the foreign government satisfies the
requirements of section 2523.
``(4) Congressional review.--
``(A) Joint resolution defined.--In this paragraph, the
term `joint resolution' means only a joint resolution--
``(i) introduced during the 90-day period described in
paragraph (2);
``(ii) which does not have a preamble;
``(iii) the title of which is as follows: `Joint resolution
disapproving the executive agreement signed by the United
States and __.', the blank space being appropriately filled
in; and
``(iv) the matter after the resolving clause of which is as
follows: `That Congress disapproves the executive agreement
governing access by ___ to certain electronic data as
submitted by the Attorney General on ___', the blank spaces
being appropriately filled in.
``(B) Joint resolution enacted.--Notwithstanding any other
provision of this section, if not later than 90 days after
the date on which notice is provided to Congress under
paragraph (1), there is enacted into law a joint resolution
disapproving of an executive agreement under this section,
the executive agreement shall not enter into force.
``(C) Introduction.--During the 90-day period described in
subparagraph (B), a joint resolution of disapproval may be
introduced--
``(i) in the House of Representatives, by the majority
leader or the minority leader; and
``(ii) in the Senate, by the majority leader (or the
majority leader's designee) or the minority leader (or the
minority leader's designee).
``(5) Floor consideration in house of representatives.--If
a committee of the House of Representatives to which a joint
resolution of disapproval has been referred has not reported
the joint resolution within 60 days after the date of
referral, that committee shall be discharged from further
consideration of the joint resolution.
``(6) Consideration in the senate.--
``(A) Committee referral.--A joint resolution of
disapproval introduced in the Senate shall be--
``(i) referred to the Committee on the Judiciary; and
``(ii) referred to the Committee on Foreign Relations.
``(B) Reporting and discharge.--If a committee to which a
joint resolution of disapproval was referred has not reported
the joint resolution within 60 days after the date of
referral of the joint resolution, that committee shall be
discharged from further consideration of the joint resolution
and the joint resolution shall be placed on the appropriate
calendar.
``(C) Proceeding to consideration.--Notwithstanding rule
XXII of the Standing Rules of the Senate, it is in order at
any time after either the Committee on the Judiciary or the
Committee on Foreign Relations, as the case may be, reports a
joint resolution of disapproval to the Senate or has been
discharged from consideration of such a joint resolution
(even though a previous motion to the same effect has been
disagreed to) to move to proceed to the consideration of the
joint resolution, and all points of order against the joint
resolution (and against consideration of the joint
resolution) are waived. The motion is not subject to a motion
to postpone. A motion to reconsider the vote by which the
motion is agreed to or disagreed to shall not be in order.
``(D) Rulings of the chair on procedure.--Appeals from the
decisions of the Chair relating to the application of the
rules of the Senate, as the case may be, to the procedure
relating to a joint resolution of disapproval shall be
decided without debate.
``(E) Consideration of veto messages.--Debate in the Senate
of any veto message with respect to a joint resolution of
disapproval, including all debatable motions and appeals in
connection with the joint resolution, shall be limited to 10
hours, to be equally divided between, and controlled by, the
majority leader and the minority leader or their designees.
``(7) Rules relating to senate and house of
representatives.--
``(A) Treatment of senate joint resolution in house.--In
the House of Representatives, the following procedures shall
apply to a joint resolution of disapproval received from the
Senate (unless the House has already passed a joint
resolution relating to the same proposed action):
``(i) The joint resolution shall be referred to the
appropriate committees.
``(ii) If a committee to which a joint resolution has been
referred has not reported the joint resolution within 7 days
after the date of referral, that committee shall be
discharged from further consideration of the joint
resolution.
``(iii) Beginning on the third legislative day after each
committee to which a joint resolution has been referred
reports the joint resolution to the House or has been
discharged from further consideration thereof, it shall be in
order to move to proceed to consider the joint resolution in
the House. All points of order against the motion are waived.
Such a motion shall not be in order after the House has
disposed of a motion to proceed on the joint resolution. The
previous question shall be considered as ordered on the
motion to its adoption without intervening motion. The motion
shall not be debatable. A motion to reconsider the vote by
which the motion is disposed of shall not be in order.
``(iv) The joint resolution shall be considered as read.
All points of order against the joint resolution and against
its consideration are waived. The previous question shall be
considered as ordered on the joint resolution to final
passage without intervening motion except 2 hours of debate
equally divided and controlled by the sponsor of the joint
resolution (or a designee) and an opponent. A motion to
reconsider the vote on passage of the joint resolution shall
not be in order.
``(B) Treatment of house joint resolution in senate.--
``(i) If, before the passage by the Senate of a joint
resolution of disapproval, the Senate receives an identical
joint resolution from the House of Representatives, the
following procedures shall apply:
``(I) That joint resolution shall not be referred to a
committee.
``(II) With respect to that joint resolution--
``(aa) the procedure in the Senate shall be the same as if
no joint resolution had been received from the House of
Representatives; but
``(bb) the vote on passage shall be on the joint resolution
from the House of Representatives.
``(ii) If, following passage of a joint resolution of
disapproval in the Senate, the Senate receives an identical
joint resolution from the House of Representatives, that
joint resolution shall be placed on the appropriate Senate
calendar.
``(iii) If a joint resolution of disapproval is received
from the House, and no companion joint resolution has been
introduced in the Senate, the Senate procedures under this
subsection shall apply to the House joint resolution.
``(C) Application to revenue measures.--The provisions of
this paragraph shall not apply in the House of
Representatives to a joint resolution of disapproval that is
a revenue measure.
``(8) Rules of house of representatives and senate.--This
subsection is enacted by Congress--
``(A) as an exercise of the rulemaking power of the Senate
and the House of Representatives, respectively, and as such
is deemed a part of the rules of each House, respectively,
and supersedes other rules only to the extent that it is
inconsistent with such rules; and
``(B) with full recognition of the constitutional right of
either House to change the rules (so far as relating to the
procedure of that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
``(e) Renewal of Determination.--
[[Page S5753]]
``(1) In general.--The Attorney General, with the
concurrence of the Secretary of State, shall renew a
determination under subsection (b) every 5 years.
``(2) Report.--Upon renewing a determination under
subsection (b), the Attorney General shall file a report with
the Committee on the Judiciary and the Committee on Foreign
Relations of the Senate and the Committee on the Judiciary
and the Committee on Foreign Affairs of the House of
Representatives describing--
``(A) the reasons for the renewal;
``(B) any substantive changes to the agreement or to the
relevant laws or procedures of the foreign government since
the original determination or, in the case of a second or
subsequent renewal, since the last renewal; and
``(C) how the agreement has been implemented and what
problems or controversies, if any, have arisen as a result of
the agreement or its implementation.
``(3) Non-renewal.--If a determination is not renewed under
paragraph (1), the agreement shall no longer be considered to
satisfy the requirements of this section.
``(f) Publication.--Any determination or certification
under subsection (b) regarding an executive agreement under
this section, including any termination or renewal of such an
agreement, shall be published in the Federal Register as soon
as is reasonably practicable.
``(g) Minimization Procedures.--A United States authority
that receives the content of a communication described in
subsection (b)(3)(H) from a foreign government in accordance
with an executive agreement under this section shall use
procedures that, to the maximum extent possible, meet the
definition of minimization procedures in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801) to appropriately protect nonpublicly available
information concerning United States persons.''.
(b) Table of Sections Amendment.--The table of sections for
chapter 119 of title 18, United States Code, is amended by
inserting after the item relating to section 2522 the
following:
``2523. Executive agreements on access to data by foreign
governments.''.
SEC. 1095. RULE OF CONSTRUCTION.
Nothing in this subtitle, or the amendments made by this
subtitle, shall be construed to preclude any foreign
authority from obtaining assistance in a criminal
investigation or prosecution pursuant to section 3512 of
title 18, United States Code, section 1782 of title 28,
United States Code, or as otherwise provided by law.
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