[House Report 113-729]
[From the U.S. Government Publishing Office]
113th Congress } { Rept. 113-729
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
KELSEY SMITH ACT
_______
January 2, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 1575]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 1575) to amend the Communications Act of 1934 to
require a provider of a commercial mobile service or an IP-
enabled voice service to provide call location information
concerning the user of such a service to law enforcement
agencies in order to respond to a call for emergency services
or in an emergency situation that involves risk of death or
serious physical harm, having considered the same, report
favorably thereon with amendments and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 3
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
Statement of General Performance Goals and Objectives............ 4
New Budget Authority, Entitlement Authority, and Tax Expenditures 4
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 4
Committee Cost Estimate.......................................... 4
Congressional Budget Office Estimate............................. 4
Federal Mandates Statement....................................... 6
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 6
Advisory Committee Statement..................................... 6
Applicability to Legislative Branch.............................. 6
Section-by-Section Analysis of the Legislation................... 7
Changes in Existing Law Made by the Bill, as Reported............ 7
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Kelsey Smith Act''.
SEC. 2. REQUIRED EMERGENCY DISCLOSURE OF CALL LOCATION INFORMATION.
(a) In General.--Title II of the Communications Act of 1934 (47
U.S.C. 201 et seq.) is amended by inserting after section 222 the
following:
``SEC. 222A. REQUIRED EMERGENCY DISCLOSURE OF CALL LOCATION
INFORMATION.
``(a) In General.--Notwithstanding section 222, at the request of an
investigative or law enforcement officer in accordance with this
section, a provider of a covered service shall provide call location
information concerning the telecommunications device of a user of such
service to such officer.
``(b) Form of Request.--A request to a provider of a covered service
by an investigative or law enforcement officer for call location
information under subsection (a) shall be accompanied by a sworn
written statement from such officer stating facts that support such
officer's probable cause to believe that disclosure without delay is
required--
``(1) by an emergency involving risk of death or serious
physical injury; or
``(2) in order to respond to the user's call for emergency
services.
``(c) Hold Harmless.--No cause of action shall lie in any court nor
shall any civil or administrative proceeding be commenced by a
governmental entity against any telecommunications carrier, or its
directors, officers, employees, agents, or vendors, for providing in
good faith call location information or other information, facilities,
or assistance in accordance with subsection (a) and any regulations
promulgated under this section.
``(d) Court Order.--Not later than 48 hours after an investigative or
law enforcement officer makes a request for call location information
under subsection (a), the law enforcement agency of such officer shall
request a court order stating whether such officer had probable cause
to believe that the conditions described in subsection (b)(1) or
subsection (b)(2) existed at the time of the request under subsection
(a).
``(e) Definitions.--In this section:
``(1) Covered service.--The term `covered service' means--
``(A) a commercial mobile service (as defined in
section 332); or
``(B) an IP-enabled voice service (as defined in
section 7 of the Wireless Communications and Public
Safety Act of 1999 (47 U.S.C. 615b)).
``(2) Emergency services.--The term `emergency services' has
the meaning given such term in section 222.
``(3) Investigative or law enforcement officer.--The term
`investigative or law enforcement officer' has the meaning
given such term in section 2510 of title 18, United States
Code.''.
(b) Regulations.--Not later than 180 days after the date of the
enactment of this Act, the Federal Communications Commission shall,
after public notice and comment, adopt regulations to implement section
222A(a) of the Communications Act of 1934, as added by subsection (a).
Amend the title so as to read:
A bill to amend the Communications Act of 1934 to require
providers of a covered service to provide call location
information concerning the telecommunications device of a user
of such service to an investigative or law enforcement officer
in an emergency situation involving risk of death or serious
physical injury or in order to respond to the user's call for
emergency services.
Purpose and Summary
H.R. 1575, the ``Kelsey Smith Act,'' requires providers of
commercial mobile service or IP-enabled voice service to share
call location data with law enforcement when it is necessary to
respond to an emergency call or in an emergency situation where
a person's life may be in danger. The law also provides
liability protection for companies that provide the data to law
enforcement.
Background and Need for Legislation
Section 222 of the Communications Act of 1934 places a duty
on telecommunications carriers to protect the proprietary
information of their customers, including data related to the
location of a user's device or where calls were placed. Current
law does not prohibit telecommunications carriers from
disclosing call location data to emergency service providers, a
user's family, or to services providing emergency response.
However, the burden lies with the carrier to determine when the
situation reaches the level of an ``emergency'' so as to
warrant the disclosure of such information. Carriers are not
required to provide call location data if they are uncertain
whether the situation merits the release of the information.
The Kelsey Smith Act shifts the discretion for identifying
an emergency situation that warrants disclosure of call
location from the providers, leaving it to the party best
suited to make that determination--law enforcement. Under the
legislation, if a law enforcement officer believes that a user
is involved in an emergency involving the risk of death or a
serious physical injury, or if location data is necessary in
order to respond to a call made by the user for emergency
services, the officer can submit a sworn statement to the
provider that such a situation exists. The statement must
attest to the facts supporting the officer's assessment of the
emergency situation.
Once the officer has made that submission, the provider no
longer bears the responsibility of assessing the situation, and
must disclose the call location information to the requesting
officer. Call location information in this context refers to
unaltered, immediately available location data--historical or
other call data can still be obtained, but may require the
additional steps available to law enforcement under current
law. This bill also does not affect the call data retention
requirements on providers, and pertains only to the information
specified above.
So long as the request complies with the statute and the
provider complies with the request, the legislation absolves
the provider and its employees and agents of liability for
supplying the information in the requisite good faith. Good
faith on the part of the provider can be presumed if all of the
requirements set forth in the legislation are met.
In order to curb any potential abuse of this tool, the
legislation requires that the requesting officer request an
order from the courts confirming that the officer had probable
cause to believe that the stated facts existed at the time of
the request. The officer has 48 hours in which to make such a
request.
The Kelsey Smith Act allows law enforcement officials to
better serve and protect the public by taking advantage of a
tool that many Americans already carry with them at all time--
their wireless device. Placing checks on the power of officers
to obtain the information strikes the appropriate balance
between privacy and utility. Absolving providers from liability
when they comply with the statute leaves the determination of
what is an ``emergency'' to law enforcement, who are far better
suited to that sort of decision-making. By allowing law
enforcement to obtain call location data in a narrow set of
emergency situations, needless tragedies can be prevented or
mitigated.
Committee Consideration
On July 29 and 30, 2014, the Committee on Energy and
Commerce met in open markup session to consider H.R. 1575. An
amendment in the nature of a substitute was offered by Rep.
Greg Walden and was agreed to by voice vote. H.R. 1575 was
ordered favorably reported to the House, as amended, by voice
vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were no record votes taken in connection with ordering
H.R. 1575 reported. A motion by Mr. Upton to order H.R. 1575
reported to the House, with amendment, was agreed to by a voice
vote.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held hearings and made
findings that are reflected in this report.
Statement of General Performance Goals and Objectives
The goal and objective of H.R. 1575 is to require providers
of covered services to provide call location information
concerning the telecommunications device of a user to
investigative or law enforcement officers in an emergency
situation involving risk of death or serious physical injury,
or in order to respond to the user's call for emergency
services.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
1575 would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 1575 contains no earmarks, limited tax
benefits, or limited tariff benefits.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 28, 2014.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1575, the Kelsey
Smith Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susan Willie.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1575--Kelsey Smith Act
CBO estimates that implementing H.R. 1575 would have a
negligible net cost over the 2015-2019 period. Enacting H.R.
1575 would not affect direct spending or revenues; therefore,
pay-as-you-go procedures do not apply.
H.R. 1575 would require telecommunications providers, upon
request, to share data about the location of a call placed from
a mobile phone or through an IP-enabled voice service under
certain circumstances. The request for location information
must be made by a law enforcement officer responding to an
emergency call or an emergency situation where a person's life
may be in danger. The bill would require the Federal
Communications Commission (FCC) to develop rules to implement
the new requirement within six months of enactment.
Based on information from the FCC, CBO expects that
implementing the rulemaking activities required under the bill
would not have a significant effect on the agency's workload or
budget. In addition, the FCC is authorized to collect fees
sufficient to cover its annual appropriation; therefore, CBO
estimates that implementing H.R. 1575 would have a negligible
effect on net discretionary costs, assuming appropriation
action consistent with that authority.
H.R. 1575 would impose a private-sector mandate as defined
in the Unfunded Mandates Reform Act (UMRA) by requiring
telecommunications providers to share the location of cell
phones in emergency situations. Currently, telecommunications
providers supply cell phone location data upon request when
certain internal criteria of the providers are met or when law
enforcement officials present a warrant for the information.
This bill would require telecommunications providers to supply
location data immediately in all cases identified as an
emergency by law enforcement officials, without being presented
with a warrant and without subjecting the request to those
internal criteria. Because telecommunications companies already
frequently supply location information to law enforcement
officials, the incremental cost of the mandate would be small.
In addition, the bill would prohibit plaintiffs from filing
a civil action against telecommunication providers for
supplying location information in compliance with the bill. By
eliminating an existing right to seek compensation for damages,
the bill would impose a private-sector mandate. The cost of the
mandate would be the forgone net value of awards and
settlements of such claims. Because we are uncertain about the
number of claims against telecommunications providers that
would be successful and about the value of awards or
settlements in those cases, CBO has no basis to estimate the
cost of this mandate for plaintiffs. Therefore, CBO cannot
determine whether the aggregate cost of the private-sector
mandates in the bill would exceed the annual threshold
established in UMRA for such mandates ($152 million, in 2014,
adjusted annually for inflation).
H.R. 1575 also would impose an intergovernmental mandate by
prohibiting public entities from initiating civil or
administrative proceedings against providers that relay
requested information and other assistance. CBO estimates that
the cost, if any, for public entities to comply with that
mandate would be minimal and well below the annual threshold
established in UMRA ($76 million in 2014, adjusted annually for
inflation).
The CBO staff contacts for this estimate are Susan Willie
(for federal costs), Melissa Merrell (for intergovernmental
mandates), and Marin Burnett (for private-sector mandates). The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Duplication of Federal Programs
No provision of H.R. 1575 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 1575
specifically directs to be completed one rule making within the
meaning of 5 U.S.C. 551.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 provides the short title of the ``Kelsey Smith
Act.''
Section 2. Required Emergency Disclosure of Call Location Information
Section 2(a) amends Section 222A of the Communications Act
to require providers of covered services to provide call data
to law enforcement officers when such data is requested in
accordance with the provisions of this section. The legislation
requires that all requests be accompanied by a sworn written
statement of the officer stating facts that support the
officers belief that there is an emergency involving risk of
death or serious physical injury, or that the data is needed to
respond to a user's call for emergency services. The bill
prohibits any cause of action against providers that comply in
good with a request made in compliance with the legislation. In
addition, requesting officers must obtain a court order within
48 hours that states that the officer had probable cause to
believe that conditions set forth in the written statement
existed at the time of the request.
Section 2(b) requires the Federal Communications Commission
to promulgate regulations to implement the legislation within
180 days of enactment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
COMMUNICATIONS ACT OF 1934
* * * * * * *
TITLE II--COMMON CARRIERS
PART I--COMMON CARRIER REGULATION
* * * * * * *
SEC. 222A. REQUIRED EMERGENCY DISCLOSURE OF CALL LOCATION INFORMATION.
(a) In General.--Notwithstanding section 222, at the request
of an investigative or law enforcement officer in accordance
with this section, a provider of a covered service shall
provide call location information concerning the
telecommunications device of a user of such service to such
officer.
(b) Form of Request.--A request to a provider of a covered
service by an investigative or law enforcement officer for call
location information under subsection (a) shall be accompanied
by a sworn written statement from such officer stating facts
that support such officer's probable cause to believe that
disclosure without delay is required--
(1) by an emergency involving risk of death or
serious physical injury; or
(2) in order to respond to the user's call for
emergency services.
(c) Hold Harmless.--No cause of action shall lie in any court
nor shall any civil or administrative proceeding be commenced
by a governmental entity against any telecommunications
carrier, or its directors, officers, employees, agents, or
vendors, for providing in good faith call location information
or other information, facilities, or assistance in accordance
with subsection (a) and any regulations promulgated under this
section.
(d) Court Order.--Not later than 48 hours after an
investigative or law enforcement officer makes a request for
call location information under subsection (a), the law
enforcement agency of such officer shall request a court order
stating whether such officer had probable cause to believe that
the conditions described in subsection (b)(1) or subsection
(b)(2) existed at the time of the request under subsection (a).
(e) Definitions.--In this section:
(1) Covered service.--The term ``covered service''
means--
(A) a commercial mobile service (as defined
in section 332); or
(B) an IP-enabled voice service (as defined
in section 7 of the Wireless Communications and
Public Safety Act of 1999 (47 U.S.C. 615b)).
(2) Emergency services.--The term ``emergency
services'' has the meaning given such term in section
222.
(3) Investigative or law enforcement officer.--The
term ``investigative or law enforcement officer'' has
the meaning given such term in section 2510 of title
18, United States Code.
* * * * * * *
[all]