[Congressional Record Volume 170, Number 68 (Thursday, April 18, 2024)]
[Senate]
[Pages S2896-S2897]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1829. Mr. PAUL submitted an amendment intended to be proposed by
him to the bill H.R. 7888, to reform the Foreign Intelligence
Surveillance Act of 1978; which was ordered to lie on the table; as
follows:
At the end, add the following:
SEC. __. PROTECTION OF RECORDS HELD BY DATA BROKERS.
Section 2702 of title 18, United States Code, is amended by
adding at the end the following:
``(e) Prohibition on Obtaining in Exchange for Anything of
Value Certain Records and Information by Law Enforcement and
Intelligence Agencies.--
``(1) Definitions.--In this subsection--
``(A) the term `covered customer or subscriber record'
means a covered record that is--
``(i) disclosed to a third party by--
``(I) a provider of an electronic communication service to
the public or a provider of a remote computing service of
which the covered person with respect to the covered record
is a subscriber or customer; or
``(II) an intermediary service provider that delivers,
stores, or processes communications of such covered person;
``(ii) collected by a third party from an online account of
a covered person; or
``(iii) collected by a third party from or about an
electronic device of a covered person;
``(B) the term `covered person' means--
``(i) a person who is located inside the United States; or
``(ii) a person--
``(I) who is located outside the United States or whose
location cannot be determined; and
``(II) who is a United States person, as defined in section
101 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801);
``(C) the term `covered record'--
``(i) means a record or other information that--
``(I) pertains to a covered person; and
``(II) is--
``(aa) a record or other information described in the
matter preceding paragraph (1) of subsection (c);
``(bb) the contents of a communication; or
``(cc) location information; and
``(ii) does not include a record or other information
that--
``(I) has been voluntarily made available to the general
public by a covered person on a social media plat form or
similar service;
``(II) is lawfully available to the public as a Federal,
State, or local government record or through other widely
distributed media;
``(III) is obtained by a law enforcement agency of a
governmental entity or an element of the intelligence
community for the purpose of conducting a background check of
a covered person--
``(aa) with the written consent of such person;
``(bb) for access or use by such agency or element for the
purpose of such background check; and
``(cc) that is destroyed after the date on which it is no
longer needed for such background check; or
``(IV) is data generated by a public or private ALPR
system;
``(D) the term `electronic device' has the meaning given
the term `computer' in section 1030(e);
``(E) the term `illegitimately obtained information' means
a covered record that--
``(i) was obtained--
``(I) from a provider of an electronic communication
service to the public or a provider of a remote computing
service in a manner that--
``(aa) violates the service agreement between the provider
and customers or subscribers of the provider; or
``(bb) is inconsistent with the privacy policy of the
provider;
``(II) by deceiving the covered person whose covered record
was obtained; or
``(III) through the unauthorized accessing of an electronic
device or online account; or
``(ii) was--
``(I) obtained from a provider of an electronic
communication service to the public, a provider of a remote
computing service, or an intermediary service provider; and
``(II) collected, processed, or shared in violation of a
contract relating to the covered record;
``(F) the term `intelligence community' has the meaning
given that term in section 3 of the National Security Act of
1947 (50 U.S.C. 3003);
``(G) the term `location information' means information
derived or otherwise calculated from the transmission or
reception of a radio signal that reveals the approximate or
actual geographic location of a customer, subscriber, or
device;
``(H) the term `obtain in exchange for anything of value'
means to obtain by purchasing, to receive in connection with
services being provided for consideration, or to otherwise
obtain in exchange for consideration, including an access
fee, service fee, maintenance fee, or licensing fee;
``(I) the term `online account' means an online account
with an electronic communication service to the public or
remote computing service;
``(J) the term `pertain', with respect to a person, means--
``(i) information that is linked to the identity of a
person; or
``(ii) information--
``(I) that has been anonymized to remove links to the
identity of a person; and
``(II) that, if combined with other information, could be
used to identify a person;
``(K) the term `third party' means a person who--
``(i) is not a governmental entity; and
``(ii) in connection with the collection, disclosure,
obtaining, processing, or sharing of the covered record at
issue, was not acting as--
``(I) a provider of an electronic communication service to
the public; or
``(II) a provider of a remote computing service; and
``(L) the term `automated license plate recognition system'
or `ALPR system' means a system of 1 or more mobile or fixed
highspeed cameras combined with computer algorithms to
convert images of license plates into computer-readable data.
``(2) Limitation.--
``(A) In general.--A law enforcement agency of a
governmental entity and an element of the intelligence
community may not obtain from a third party in exchange for
anything of value a covered customer or subscriber record or
any illegitimately obtained information.
``(B) Indirectly acquired records and information.--The
limitation under subparagraph (A) shall apply without regard
to whether the third party possessing the covered customer or
subscriber record or illegitimately obtained information is
the third party that initially obtained or collected, or is
the third party that initially received the disclosure of,
the covered customer or subscriber record or illegitimately
obtained information.
``(3) Limit on sharing between agencies.--An agency of a
governmental entity that is not a law enforcement agency or
an element of the intelligence community may not provide to a
law enforcement agency of a governmental entity or an element
of the intelligence community a covered customer or
subscriber record or illegitimately obtained information that
was obtained from a third party in exchange for anything of
value.
``(4) Prohibition on use as evidence.--A covered customer
or subscriber record or illegitimately obtained information
obtained by or provided to a law enforcement agency of a
governmental entity or an element of the intelligence
community in violation of paragraph (2) or (3), and any
evidence derived therefrom, may not be received in evidence
in any trial, hearing, or other proceeding in or before any
court, grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of the United
States, a State, or a political subdivision thereof.
``(5) Minimization procedures.--
``(A) In general.--The Attorney General shall adopt
specific procedures that are reasonably designed to minimize
the acquisition and retention, and prohibit the
dissemination, of information pertaining to a covered person
that is acquired in violation of paragraph (2) or (3).
``(B) Use by agencies.--If a law enforcement agency of a
governmental entity or element of the intelligence community
acquires information pertaining to a covered person in
violation of paragraph (2) or (3), the law enforcement agency
of a governmental entity or element of the intelligence
community shall minimize the acquisition and retention, and
prohibit the dissemination, of the
[[Page S2897]]
information in accordance with the procedures adopted under
subparagraph (A).''.
SEC. __. REQUIRED DISCLOSURE.
Section 2703 of title 18, United States Code, is amended by
adding at the end the following:
``(i) Covered Customer or Subscriber Records and
Illegitimately Obtained Information.--
``(1) Definitions.--In this subsection, the terms `covered
customer or subscriber record', `illegitimately obtained
information', and `third party' have the meanings given such
terms in section 2702(e).
``(2) Limitation.--Unless a governmental entity obtains an
order in accordance with paragraph (3), the governmental
entity may not require a third party to disclose a covered
customer or subscriber record or any illegitimately obtained
information if a court order would be required for the
governmental entity to require a provider of remote computing
service or a provider of electronic communication service to
the public to disclose such a covered customer or subscriber
record or illegitimately obtained information that is a
record of a customer or subscriber of the provider.
``(3) Orders.--
``(A) In general.--A court may only issue an order
requiring a third party to disclose a covered customer or
subscriber record or any illegitimately obtained information
on the same basis and subject to the same limitations as
would apply to a court order to require disclosure by a
provider of remote computing service or a provider of
electronic communication service to the public of a record of
a customer or subscriber of the provider.
``(B) Standard.--For purposes of subparagraph (A), a court
shall apply the most stringent standard under Federal statute
or the Constitution of the United States that would be
applicable to a request for a court order to require a
comparable disclosure by a provider of remote computing
service or a provider of electronic communication service to
the public of a record of a customer or subscriber of the
provider.''.
SEC. __. INTERMEDIARY SERVICE PROVIDERS.
(a) Definition.--Section 2711 of title 18, United States
Code, is amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(5) the term `intermediary service provider' means an
entity or facilities owner or operator that directly or
indirectly delivers, stores, or processes communications for
or on behalf of a provider of electronic communication
service to the public or a provider of remote computing
service.''.
(b) Prohibition.--Section 2702(a) of title 18, United
States Code, is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking ``and'' at the end;
(3) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(4) by adding at the end the following:
``(4) an intermediary service provider shall not knowingly
divulge--
``(A) to any person or entity the contents of a
communication while in electronic storage by that provider;
or
``(B) to any governmental entity a record or other
information pertaining to a subscriber to or customer of, a
recipient of a communication from a subscriber to or customer
of, or the sender of a communication to a subscriber to or
customer of, the provider of electronic communication service
to the public or the provider of remote computing service
for, or on behalf of, which the intermediary service provider
directly or indirectly delivers, transmits, stores, or
processes communications.''.
SEC. __. LIMITS ON SURVEILLANCE CONDUCTED FOR FOREIGN
INTELLIGENCE PURPOSES OTHER THAN UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) In General.--Section 2511(2)(f) of title 18, United
States Code, is amended to read as follows:
``(f)(i)(A) Nothing contained in this chapter, chapter 121
or 206 of this title, or section 705 of the Communications
Act of 1934 (47 U.S.C. 151 et seq.) shall be deemed to affect
an acquisition or activity described in clause (B) that is
carried out utilizing a means other than electronic
surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
``(B) An acquisition or activity described in this clause
is--
``(I) an acquisition by the United States Government of
foreign intelligence information from international or
foreign communications that--
``(aa) is acquired pursuant to express statutory authority;
or
``(bb) only includes information of persons who are not
United States persons and are located outside the United
States; or
``(II) a foreign intelligence activity involving a foreign
electronic communications system that--
``(aa) is conducted pursuant to express statutory
authority; or
``(bb) only involves the acquisition by the United States
Government of information of persons who are not United
States persons and are located outside the United States.
``(ii) The procedures in this chapter, chapter 121, and the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) shall be the exclusive means by which electronic
surveillance, as defined in section 101 of such Act, and the
interception of domestic wire, oral, and electronic
communications may be conducted.''.
(b) Exclusive Means Related to Communications Records.--The
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) shall be the exclusive means by which electronic
communications transactions records, call detail records, or
other information from communications of United States
persons or persons inside the United States are acquired for
foreign intelligence purposes inside the United States or
from a person or entity located in the United States that
provides telecommunications, electronic communication, or
remote computing services.
(c) Exclusive Means Related to Location Information, Web
Browsing History, and Internet Search History.--
(1) Definition.--In this subsection, the term ``location
information'' has the meaning given that term in subsection
(e) of section 2702 of title 18, United States Code, as added
by section __ of this Act.
(2) Exclusive means.--Title I and sections 303, 304, 702,
703, 704, and 705 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq., 1823, 1824, 1881a,
1881b, 1881c, 1881d) shall be the exclusive means by which
location information, web browsing history, and internet
search history of United States persons or persons inside the
United States are acquired for foreign intelligence purposes
inside the United States or from a person or entity located
in the United States.
(d) Exclusive Means Related to Fourth Amendment-Protected
Information.--Title I and sections 303, 304, 702, 703, 704,
and 705 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq., 1823, 1824, 1881a, 1881b, 1881c,
1881d) shall be the exclusive means by which any information,
records, data, or tangible things are acquired for foreign
intelligence purposes from a person or entity located in the
United States if the compelled production of such
information, records, data, or tangible things would require
a warrant for law enforcement purposes.
(e) Definition.--In this section, the term ``United States
person'' has the meaning given that term in section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).
SEC. __. LIMIT ON CIVIL IMMUNITY FOR PROVIDING INFORMATION,
FACILITIES, OR TECHNICAL ASSISTANCE TO THE
GOVERNMENT ABSENT A COURT ORDER.
Section 2511(2)(a) of title 18, United States Code, is
amended--
(1) in subparagraph (ii), by striking clause (B) and
inserting the following:
``(B) a certification in writing--
``(I) by a person specified in section 2518(7) or the
Attorney General of the United States;
``(II) that the requirements for an emergency authorization
to intercept a wire, oral, or electronic communication under
section 2518(7) have been met; and
``(III) that the specified assistance is required,''; and
(2) by striking subparagraph (iii) and inserting the
following:
``(iii) For assistance provided pursuant to a certification
under subparagraph (ii)(B), the limitation on causes of
action under the last sentence of the matter following
subparagraph (ii)(B) shall only apply to the extent that the
assistance ceased at the earliest of the time the application
for a court order was denied, the time the communication
sought was obtained, or 48 hours after the interception
began.''.
______