[House Report 114-528]
[From the U.S. Government Publishing Office]


114th Congress   }                                       {      Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                       {     114-528

======================================================================



 
                           EMAIL PRIVACY ACT

                                _______
                                

 April 26, 2016.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 699]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 699) to amend title 18, United States Code, to 
update the privacy protections for electronic communications 
information that is stored by third-party service providers in 
order to protect consumer privacy interests while meeting law 
enforcement needs, and for other purposes, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.











                                CONTENTS

                                                                   Page

The Amendment....................................................     2
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     5
Hearings.........................................................    10
Committee Consideration..........................................    11
Committee Votes..................................................    11
Committee Oversight Findings.....................................    12
New Budget Authority and Tax Expenditures........................    12
Congressional Budget Office Cost Estimate........................    12
Duplication of Federal Programs..................................    13
Disclosure of Directed Rule Makings..............................    13
Performance Goals and Objectives.................................    13
Advisory on Earmarks.............................................    13
Section-by-Section Analysis......................................    13
Changes in Existing Law Made by the Bill, as Reported............    16










                             The Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Email Privacy Act''.

SEC. 2. VOLUNTARY DISCLOSURE CORRECTIONS.

  (a) In General.--Section 2702 of title 18, United States Code, is 
amended--
          (1) in subsection (a)--
                  (A) in paragraph (1)--
                          (i) by striking ``divulge'' and inserting 
                        ``disclose'';
                          (ii) by striking ``while in electronic 
                        storage by that service'' and inserting ``that 
                        is in electronic storage with or otherwise 
                        stored, held, or maintained by that service'';
                  (B) in paragraph (2)--
                          (i) by striking ``to the public'';
                          (ii) by striking ``divulge'' and inserting 
                        ``disclose''; and
                          (iii) by striking ``which is carried or 
                        maintained on that service'' and inserting 
                        ``that is stored, held, or maintained by that 
                        service''; and
                  (C) in paragraph (3)--
                          (i) by striking ``divulge'' and inserting 
                        ``disclose''; and
                          (ii) by striking ``a provider of'' and 
                        inserting ``a person or entity providing''
          (2) in subsection (b)--
                  (A) in the matter preceding paragraph (1), by 
                inserting ``wire or electronic'' before 
                ``communication'';
                  (B) by amending paragraph (1) to read as follows:
          ``(1) to an originator, addressee, or intended recipient of 
        such communication, to the subscriber or customer on whose 
        behalf the provider stores, holds, or maintains such 
        communication, or to an agent of such addressee, intended 
        recipient, subscriber, or customer;''; and
                  (C) by amending paragraph (3) to read as follows:
          ``(3) with the lawful consent of the originator, addressee, 
        or intended recipient of such communication, or of the 
        subscriber or customer on whose behalf the provider stores, 
        holds, or maintains such communication;'';
          (3) in subsection (c) by inserting ``wire or electronic'' 
        before ``communications'';
          (4) in each of subsections (b) and (c), by striking 
        ``divulge'' and inserting ``disclose''; and
          (5) in subsection (c), by amending paragraph (2) to read as 
        follows:
          ``(2) with the lawful consent of the subscriber or 
        customer;''.

SEC. 3. AMENDMENTS TO REQUIRED DISCLOSURE SECTION.

  Section 2703 of title 18, United States Code, is amended--
          (1) by striking subsections (a) through (c) and inserting the 
        following:
  ``(a) Contents of Wire or Electronic Communications in Electronic 
Storage.--Except as provided in subsections (i) and (j), a governmental 
entity may require the disclosure by a provider of electronic 
communication service of the contents of a wire or electronic 
communication that is in electronic storage with or otherwise stored, 
held, or maintained by that service 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--
          ``(1) is issued by a court of competent jurisdiction; and
          ``(2) may indicate the date by which the provider must make 
        the disclosure to the governmental entity.
In the absence of a date on the warrant indicating the date by which 
the provider must make disclosure to the governmental entity, the 
provider shall promptly respond to the warrant.
  ``(b) Contents of Wire or Electronic Communications in a Remote 
Computing Service.--
          ``(1) In general.--Except as provided in subsections (i) and 
        (j), a governmental entity may require the disclosure by a 
        provider of remote computing service of the contents of a wire 
        or electronic communication that is stored, held, or maintained 
        by that service 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--
                  ``(A) is issued by a court of competent jurisdiction; 
                and
                  ``(B) may indicate the date by which the provider 
                must make the disclosure to the governmental entity.
        In the absence of a date on the warrant indicating the date by 
        which the provider must make disclosure to the governmental 
        entity, the provider shall promptly respond to the warrant.
          ``(2) Applicability.--Paragraph (1) is applicable with 
        respect to any wire or electronic communication that is stored, 
        held, or maintained by the provider--
                  ``(A) on behalf of, and received by means of 
                electronic transmission from (or created by means of 
                computer processing of communication received by means 
                of electronic transmission from), a subscriber or 
                customer of such remote computing service; and
                  ``(B) solely for the purpose of providing storage or 
                computer processing services to such subscriber or 
                customer, if the provider is not authorized to access 
                the contents of any such communications for purposes of 
                providing any services other than storage or computer 
                processing.
  ``(c) Records Concerning Electronic Communication Service or Remote 
Computing Service.--
          ``(1) In general.--Except as provided in subsections (i) and 
        (j), a governmental entity may require the disclosure by a 
        provider of electronic communication service or remote 
        computing service of a record or other information pertaining 
        to a subscriber to or customer of such service (not including 
        the contents of wire or electronic communications), only--
                  ``(A) if a 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--
                          ``(i) is issued by a court of competent 
                        jurisdiction directing the disclosure; and
                          ``(ii) may indicate the date by which the 
                        provider must make the disclosure to the 
                        governmental entity;
                  ``(B) if a governmental entity obtains a court order 
                directing the disclosure under subsection (d);
                  ``(C) with the lawful consent of the subscriber or 
                customer; or
                  ``(D) as otherwise authorized in paragraph (2).
          ``(2) Subscriber or customer information.--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 available 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 or customer 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.'';
          (2) in subsection (d)--
                  (A) by striking ``(b) or'';
                  (B) by striking ``the contents of a wire or 
                electronic communication, or'';
                  (C) by striking ``sought,'' and inserting ``sought''; 
                and
                  (D) by striking ``section'' and inserting 
                ``subsection''; and
          (3) by adding at the end the following:
  ``(h) Notice.--Except as provided in section 2705, a provider of 
electronic communication service or remote computing service may notify 
a subscriber or customer of a receipt of a warrant, court order, 
subpoena, or request under subsection (a), (b), (c), or (d) of this 
section.
  ``(i) Rule of Construction Related to Legal Process.--Nothing in this 
section or in section 2702 shall limit the authority of a governmental 
entity to use an administrative subpoena authorized by Federal or State 
statute, a grand jury, trial, or civil discovery subpoena, or 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 to--
          ``(1) require an originator, addressee, or intended recipient 
        of a wire or electronic communication to disclose a wire or 
        electronic communication (including the contents of that 
        communication) to the governmental entity;
          ``(2) require a person or entity that provides an electronic 
        communication service to the officers, directors, employees, or 
        agents of the person or entity (for the purpose of carrying out 
        their duties) to disclose a wire or electronic communication 
        (including the contents of that communication) to or from the 
        person or entity itself or to or from an officer, director, 
        employee, or agent of the entity to a governmental entity, if 
        the wire or electronic communication is stored, held, or 
        maintained on an electronic communications system owned, 
        operated, or controlled by the person or entity; or
          ``(3) require a person or entity that provides a remote 
        computing service or electronic communication service to 
        disclose a wire or electronic communication (including the 
        contents of that communication) that advertises or promotes a 
        product or service and that has been made readily accessible to 
        the general public.
  ``(j) Rule of Construction Related to Congressional Subpoenas.--
Nothing in this section or in section 2702 shall limit the power of 
inquiry vested in the Congress by Article I of the Constitution of the 
United States, including the authority to compel the production of a 
wire or electronic communication (including the contents of a wire or 
electronic communication) that is stored, held, or maintained by a 
person or entity that provides remote computing service or electronic 
communication service.''.

SEC. 4. DELAYED NOTICE.

  Section 2705 of title 18, United States Code, is amended to read as 
follows:

``Sec. 2705. Delayed notice

  ``(a) In General.--A governmental entity acting 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.
  ``(b) Determination.--A court shall grant a request for an order made 
under subsection (a) for delayed notification of up to 180 days if the 
court determines that there is reason to believe that notification of 
the existence of the warrant, order, subpoena, or other directive will 
likely result in--
          ``(1) endangering the life or physical safety of an 
        individual;
          ``(2) flight from prosecution;
          ``(3) destruction of or tampering with evidence;
          ``(4) intimidation of potential witnesses; or
          ``(5) otherwise seriously jeopardizing an investigation or 
        unduly delaying a trial.
  ``(c) Extension.--Upon request by a governmental entity, a court may 
grant one or more extensions, for periods of up to 180 days each, of an 
order granted in accordance with subsection (b).''.

SEC. 5. RULE OF CONSTRUCTION.

  Nothing in this Act or an amendment made by this Act 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 Act; or
          (2) records or other information relating to a subscriber or 
        customer of any electronic communication 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 
        Act.

                          Purpose and Summary

    The purpose of H.R. 699 is to update the privacy 
protections for electronic communications information that is 
stored by third-party service providers in order to protect 
consumer privacy interests while meeting law enforcement needs.

                Background and Need for the Legislation

    In 1986, Congress enacted the Electronic Communications 
Privacy Act (ECPA) to protect both the privacy of an 
individual's electronic communications and provide the 
government with a means for accessing these communications and 
related records. Although passed at the infancy of the 
Internet, the Stored Communications Act (SCA),\1\ a chapter of 
ECPA, has been interpreted over the years to cover the content 
of emails, private Facebook messages, YouTube videos, and so-
called ``metadata,'' or non-content information, associated 
with Internet transactions. Congress originally modeled the new 
law on the Right to Financial Privacy Act in order ``to protect 
privacy interests in personal and proprietary information, 
while protecting the Government's legitimate law enforcement 
needs.''\2\ The Senate Report also stressed that the 
legislation was intended to strike a ``fair balance between the 
privacy expectations of American citizens and the legitimate 
needs of law enforcement agencies.''\3\
---------------------------------------------------------------------------
    \1\Known as the ``Stored Communications Act'', but the statute 
never actually refers to that term.
    \2\S. Rep. No. 99-541 (1986), reprinted in 1986 U.S.C.C.A.N. 3555.
    \3\Id.
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    The scope of the SCA is determined largely by the entities 
to which it applies, ``electronic communication service'' (ECS) 
providers and ``remote computing service'' (RCS) providers, as 
defined in the statute. It does not apply to government access 
to records held by a party to the communication. It is helpful 
to think of the SCA broken into two core components. First, it 
creates a broad bar against service providers voluntarily 
disclosing the content of a customer's communications to the 
government or others, subject to various exceptions. Second, it 
establishes procedures under which the government can compel a 
provider to disclose customers' communications or records. As 
to government access, the SCA utilizes a tiered system with 
different levels of evidence required depending on whether the 
provider is an ECS or RCS; whether the data sought is content 
or non-content; the age of the email; and whether notice has 
been given to the customer.

                    A. HISTORICAL BACKGROUND OF ECPA

    Before passage of ECPA in 1986, government access to 
private electronic communications was governed primarily by the 
Fourth Amendment and the Federal wiretap law. In 1967, the 
Supreme Court issued two landmark Fourth Amendment cases. In 
Katz v. United States, the Court held that the Fourth 
Amendment's prohibition against ``unreasonable searches and 
seizures'' entitles individuals to a reasonable expectation of 
privacy in their private communications.\4\ In Berger v. New 
York, the Court struck down a New York wiretap law that failed 
to include adequate safeguards for the privacy interests of 
those whose communications were being ``tapped.''\5\
---------------------------------------------------------------------------
    \4\See U.S. Const. amend IV (``The right of the people to be secure 
in their persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, and no Warrants shall 
issue but upon probable cause, supported by Oath or affirmation, and 
particularly describing the place to be searched, and the persons or 
things to be seized.''); Katz v. United States, 389 U.S. 347, 359 
(1967).
    \5\Berger vs. New York, 388 U.S. 41, 63-64 (1967).
---------------------------------------------------------------------------
    One year later, in an effort to regulate wiretapping while 
also giving law enforcement a lawful means for intercepting 
telephone conversations, Congress enacted the ``Wiretap Act'' 
as Title III of the Omnibus Crime Control and Safe Streets Act 
of 1968.\6\ Title III prohibits the unauthorized interception 
of wire or oral communications, while simultaneously providing 
a procedure for law enforcement to conduct such interceptions 
upon judicial approval.\7\ However, Title III only covered the 
``aural'' interception of wire or oral communications--the 
interception of actual sounds--that are interpreted by hearing, 
and not sight. This left largely unregulated the transfer of 
digital communications.\8\
---------------------------------------------------------------------------
    \6\Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 
801, 82 Stat. 197, 212.
    \7\See 18 U.S.C. Sec. 2511.
    \8\See United States v. New York Telephone Co., 434 U.S. 159, 166-
67 (1977); United States v. Seidlitz, 589 F.2d 152, 157 (4th Cir. 1978) 
(``The words `aural acquisition' literally translated mean to come into 
possession through the sense of hearing.'') (quoting Webster's Third 
New International Dictionary, 1967 ed.).
---------------------------------------------------------------------------
    This legal uncertainty as to whether new digital forms of 
communication would be covered by Title III or other Federal 
law prompted the introduction of the original version of ECPA 
in 1985.\9\ Foreshadowing arguments made by proponents of ECPA 
reform today, the Senate Judiciary Committee observed at the 
time that this gap in coverage could stifle American 
technological innovation, expose law enforcement to liability, 
allow the erosion of American privacy rights, and jeopardize 
the admissibility of probative evidence in criminal 
prosecutions.\10\ One year later Congress enacted ECPA.\11\
---------------------------------------------------------------------------
    \9\See Office of Technology Assessment, Federal Government 
Information Technology: Electronic Surveillance and Civil Liberties 46 
(1985).
    \10\Id. at 21.
    \11\S. Rept. 99-541, at 5.
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          B. THE STORED COMMUNICATIONS ACT'S GENERAL FRAMEWORK

    While colloquially referred to as ECPA, the SCA portion of 
the law remains the focus of reform efforts. The SCA (18 U.S.C. 
Sec. Sec. 2701-2712) regulates how the government can obtain 
stored account information from network service providers such 
as Internet Service Providers (ISPs) and telecommunication 
carriers. Whenever agents or prosecutors seek stored email, 
account records, or subscriber information from a network 
service provider, they must comply with the SCA. The SCA sets 
forth a system of statutory privacy rights for customers and 
subscribers of computer network service providers, and governs 
not just Federal criminal investigators and prosecutors but 
also Federal civil agencies and all state and local criminal 
and civil agencies. The SCA applies to any request to obtain 
stored email content, account records, or subscriber 
information and is not limited to requests in criminal 
investigations and prosecutions. Rather, the SCA applies also 
to any public safety requests and civil investigations in which 
these types of information are sought.
    The SCA applies to the stored content of communications, 
which includes stored emails, text or instant messages, and 
documents, videos, and sound recordings stored in the 
``cloud.'' Section 2701 prohibits unlawful access to certain 
stored communications, subject to criminal penalties if 
violated. Section 2702 governs voluntary disclosures of 
contents or records by network service providers. Section 2703 
governs required or compelled disclosures of contents or 
records by network service providers to federal, state, or 
local governmental entities. As previously mentioned, for 
purposes of obtaining email content under Section 2703, the SCA 
provides a bifurcated system based on whether the provider is 
an ``ECS'' (electronic communication service provider) or 
``RCS'' (remote computing service provider).

          C. VOLUNTARY DISCLOSURE RULES (18 U.S.C. Sec. 2702)

    In section 2702, prohibitions to voluntary disclosure by a 
provider are listed first, followed by exceptions that permit 
voluntary disclosure to various entities. As to the first 
component, under 18 U.S.C. Sec. 2702(a)(1), a provider of ECS 
to the public ``shall not knowingly divulge to any person or 
entity the contents of a communication while in electronic 
storage.'' Section 2702(a)(2) states that a provider of RCS to 
the public shall not knowingly disclose the contents of a 
communication which is carried or maintained by that service. 
There are two other conditions that must be met in order for a 
communication to remain protected under subsection (a)(2). 
First, the communication must be maintained ``on behalf of, and 
received by means of electronic transmission from (or created 
by means of computer processing of communications received by 
means of electronic transmission from), a subscriber or 
customer of such service.''\12\ Second, the communication must 
be maintained ``solely for the purpose of providing storage or 
computer processing services to such subscriber or customer, if 
the provider is not authorized to access the contents of any 
such communications for purposes of providing any services 
other than storage or computer processing.''\13\ Thus, a RCS 
provider may access the content of subscriber or customer 
communications in order to provide computer storage and 
processing services. Access for the purpose of computer storage 
or processing may include access in order to filter out child 
pornography, identify and remove malware or SPAM, protect 
against unauthorized access, or to deliver targeted advertising 
to a subscriber or customer. Such access does not remove that 
content from the prohibition on voluntary disclosure in section 
2702.\14\ At the same time, the simple act of storing or 
processing information that may constitute contents of a wire 
or electronic communication about or on behalf of a subscriber 
or customer--as many Internet websites or ``apps'' do today to 
facilitate the provision of a product or service--including 
information to which an entity has access--does not transform 
that website or app into a RCS provider for purposes of either 
the voluntary disclosure rules in section 2702 or the required 
disclosure rules in section 2703.
---------------------------------------------------------------------------
    \12\18 U.S.C. Sec. 2702(a)(2)(A).
    \13\Id. at (a)(2)(B).
    \14\Nor does such access by a RCS provider remove the content of 
communications from the compelled disclosure procedures in section 2703 
(discussed in greater detail below).
---------------------------------------------------------------------------
    Section 2702(a)(3) prohibits a provider of ECS or RCS to 
the public from disclosing a ``record or other information 
pertaining to a subscriber to or customer of such service (not 
including the contents of a communication covered by paragraph 
(1) or (2)) to any governmental entity.'' Note that this rule, 
which concerns non-content or ``metadata,'' does not apply to 
nongovernmental, private entities. This permits companies to 
share non-content information with other private entities, 
insofar as the SCA is concerned. There may be other Federal or 
state laws, however, which prohibit disclosure of particular 
classes of information.\15\
---------------------------------------------------------------------------
    \15\See e.g., Right to Financial Privacy Act, 12 U.S.C. Sec. 3401; 
Video Privacy Protection Act, 18 U.S.C. Sec. 2710; Family Educational 
Rights and Privacy Act of 1978, 20 U.S.C. Sec. 1232g.
---------------------------------------------------------------------------
    Section 2702(b) provides exceptions to the prohibitions in 
subsection (a), for the voluntary disclosure of the content of 
communications, including: to an addressee or intended 
recipient of a communication, as authorized under Section 2703; 
as may be necessarily incident to the rendition of the service 
or the protection of the rights of property of the provider of 
that service; or to a governmental entity, if the provider, in 
good faith, believes that an emergency involving danger of 
death or serious physical injury to any person requires 
disclosure without delay of communications relating to the 
emergency. Section 2702(c) provides similar exceptions for the 
disclosure of non-content information, including as authorized 
under section 2703; with the lawful consent of the customer or 
subscriber; and to any person other than a governmental entity.

          D. COMPELLED DISCLOSURE RULES (18 U.S.C. Sec. 2703)

    The second major component of the SCA is the rules 
concerning required or compelled disclosure of customer 
communications and records. Section 2703 sets up a tiered 
system with different standards that apply depending on whether 
an ECS or RCS is holding the record, whether the data sought is 
content or non-content, whether the email has been opened, and 
whether advanced notice has been given to the customer. This 
tiered system permits the government to use greater process 
when lesser process would satisfy the statute--for instance, 
the government may use a warrant when a subpoena would 
suffice.\16\ Another way of thinking of the scope of data 
available through compelled disclosure is that ``greater 
process generally includes access to information that cannot be 
obtained with lesser process.''\17\
---------------------------------------------------------------------------
    \16\Orin K. Kerr, A User's Guide to the Stored Communications Act, 
and a Legislator's Guide to the Amending It, 72 Geo. Wash. L. Rev. 
1208, 1220 (2004).
    \17\See, U.S. Department of Justice Computer Crime and Intellectual 
Property Section Manual, ``Searching and Seizing Computers and 
Obtaining Electronic Evidence in Criminal Investigations,'' Third 
Edition, (2009).
---------------------------------------------------------------------------
    At the highest level, the temporal age of the communication 
governs the criminal procedure related to compelled disclosure 
by an ECS or email provider. Specifically, the ``180-day rule'' 
arose because Internet users in 1986 were not able to retain a 
significant number of email messages on their computers simply 
because of storage limitations at the time. Thus, any emails 
older than 180 days were deemed abandoned and subject to lesser 
legal process than newer messages under 180 days old which 
entailed greater protection. This framework is reflected in 
section 2703(a), requiring the government to obtain a warrant 
if it seeks access to the content of a communication from an 
ECS provider that has been in ``electronic storage'' for 180 
days or less.
    Moving down a tier, if the communication has been stored 
for longer than 180 days, or if it is being ``held or 
maintained'' by an RCS ``solely for the purpose of providing 
storage or computer processing services,'' the government can 
use a subpoena, or a court order under Section 2703(d), so long 
as notice is provided to the customer at some point. Section 
2703(d) orders require the applicant to prove ``specific and 
articulable facts, showing that there are reasonable grounds to 
believe that the contents of a[n] . . . electronic 
communication . . . are relevant and material to an ongoing 
criminal investigation.''
    While Section 2703 facially permits government access to 
the contents of emails stored more than 180 days or those no 
longer in electronic storage, a 2010 ruling from the Sixth 
Circuit Court of Appeals called into question the 
constitutional validity of this provision. In United States v. 
Warshak, the government accessed 27,000 emails directly from 
the suspect's Internet service provider (ISP) with a subpoena 
under section 2703(b) and an ex parte order under section 
2703(d).\18\ The Sixth Circuit held that such access was 
unlawful under the Fourth Amendment as subscribers enjoy ``a 
reasonable expectation of privacy in the contents of emails 
'that are stored with, or sent or received through, a 
commercial ISP''' and ``to the extent that the SCA purports to 
permit the government to obtain such emails warrantlessly, the 
SCA is unconstitutional.''\19\
---------------------------------------------------------------------------
    \18\United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).
    \19\Id. at 288.
---------------------------------------------------------------------------
    The Sixth Circuit is the only circuit court in the country 
which has held that a warrant is required for all 
communications content, but the decision had an immediate 
impact on the practices of telecommunications companies and 
government agencies. In those Federal districts where Warshak 
has become the de facto law, law enforcement has been required 
to obtain a warrant even in those cases where lesser process is 
still permitted by statute. Soon after the decision, the 
Department of Justice began using warrants for email in all 
criminal cases. That practice became Department policy in 2013.
    In addition to the content of communications, the SCA 
permits access to non-content information with a warrant, but 
the government may also use a subpoena or a section 2703(d) 
order without having to provide the customer notice.\20\ To 
access basic subscriber information, including the customer's 
name, address, phone number, length of service, and means of 
payment (including bank account numbers), the government may 
follow the more stringent requirements for obtaining a warrant 
or a section 2703(d) order, but can also use an administrative 
subpoena, which requires no prior authorization by a judicial 
officer.\21\
---------------------------------------------------------------------------
    \20\See 18 U.S.C. Sec. 2703(c). Non-content information such as the 
to/from line in emails, otherwise known as source and destination 
information, is generally not protected under the Fourth Amendment. See 
United States v. Forrester, 521 F.3d 500, 509 (9th Cir. 2007).
    \21\18 U.S.C. Sec. 2703(c).
---------------------------------------------------------------------------
    Finally, the SCA outlines when the government must provide 
notice to customers when their communications have been 
disclosed to the government. If the government seeks the 
contents of an electronic communication stored by an ECS for 
fewer than 180 days or stored by a RCS pursuant to a warrant, 
the government must follow the procedures set forth in Federal 
Rule of Criminal Procedure 41, which allow for the warrant to 
be served at the place the seizure occurs.\22\ The government 
is not required to notify a customer of a compelled disclosure 
pursuant to a warrant.\23\ If the government seeks access to 
the contents of electronic communications from an ECS or RCS 
under a section 2703(d) order or pursuant to a subpoena, the 
government must give prior notice to the customer, unless the 
government obtains a delayed-notice order under 18 U.S.C. 
Sec. 2705. The SCA does not require the government to provide 
notice to customers when it obtains non-content metadata or 
billing information from an ECS or RCS.\24\
---------------------------------------------------------------------------
    \22\18 U.S.C. Sec. 2703(a); FRCP 41(f)(1).
    \23\See e.g., 18 U.S.C. Sec. 2703(b)(1)(A).
    \24\18 U.S.C. Sec. 2703(c)(3).
---------------------------------------------------------------------------
    The SCA permits the government to seek a court order 
precluding notice to the customer by an ECS or RCS. Section 
2705 sets forth the criteria that forms the basis for the order 
and instructs that an order may command an ECS or RCS, ``for 
such period as the court deems appropriate'' not to notify any 
person of the existence of a warrant, subpoena, or court 
order.\25\
---------------------------------------------------------------------------
    \25\18 U.S.C. Sec. 2705.
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held 1 day of hearings on 
H.R. 699 on December 1, 2015. Testimony was received from Mr. 
Andrew J. Ceresney, Director, Division of Enforcement, United 
States Securities and Exchange Commission, Mr. Steven Cook, 
President, Board of Directors, National Association of 
Assistant United States Attorneys, Mr. Richard W. Littlehale, 
Assistant Special Agent in Charge, Criminal Investigation 
Division, Tennessee Bureau of Investigation, Mr. Chris 
Calabrese, Vice President, Policy, Center for Democracy and 
Technology, Mr. Richard Salgado, Director, Law Enforcement and 
Information Security, Google, Inc., and Mr. Paul Rosenzweig, 
Founder, Red Branch Consulting, with additional material 
submitted by Representative Doug Collins of Georgia, 
Representative Sheila Jackson Lee of Texas, Representative 
Kevin Yoder of Kansas, Representative Jared Polis of Colorado, 
the United States Department of Justice, the FBI Agents 
Association, the Association of Prosecuting Attorneys (APA), 
the Association of State Criminal Investigative Agencies 
(ASCIA), the Federal Law Enforcement Officers Association 
(FLEOA), the Fraternal Order of Police (FOP), the International 
Association of Chiefs of Police (IACP), the Major Cities Chiefs 
Association (MCCA), the Major County Sheriffs' Association 
(MCSA), the National Association of Assistant United States 
Attorneys (NAAUSA), the National Association of Police 
Organizations (NAPO), the National District Attorneys 
Association (NDAA), the National Fusion Center Association 
(NFCA), the National Narcotic Officers' Associations' Coalition 
(NNOAC), the National Sheriffs' Association (NSA), the Virginia 
Association of Commonwealth Attorneys, CompTIA and the 
Technology Councils of North America, TechFreedom, 60 Plus 
Association, American Commitment, American Consumer Institute, 
Americans for Tax Reform, Center for Financial Privacy and 
Human Rights, Citizen Outreach Competitive, Enterprise 
Institute, Council for Citizens Against Government Waste, 
Digital Liberty, FreedomWorks, Frontiers of Freedom, Heritage 
Action for America, Institute for Liberty, Institute for Policy 
Innovation, Less Government, Liberty Coalition, National 
Taxpayers Union, Niskanen Center, R Street, Taxpayers 
Protection Alliance, and the Rutherford Institute

                        Committee Consideration

    On April 13, 2016, the Committee met in open session and 
ordered the bill H.R. 699 favorably reported, with an 
amendment, by a rollcall vote of 28 to 0, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall vote occurred during the Committee's 
consideration of H.R. 699.
    1. Motion to report H.R. 699 favorably to the House. The 
motion was agreed to by a vote of 28 to 0.

                             ROLLCALL NO. 1
 
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................      X
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................      X
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     28       0
------------------------------------------------------------------------


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 699, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 25, 2016.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 699, the ``Email 
Privacy Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                                Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




                      H.R. 699--Email Privacy Act.

      As ordered reported by the House Committee on the Judiciary 
                           on April 13, 2016.




    H.R. 699 would amend the Electronic Communications Privacy 
Act of 1986 (Public Law 99-508) to change current law relating 
to the privacy of certain personal communications. The bill 
also would change the procedures that government agencies must 
follow when requiring providers of remote computing services or 
electronic communication services to disclose stored 
communications. Many of those changes are technical in nature. 
CBO estimates that enacting the bill would have no significant 
cost to the federal government.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply. 
CBO estimates that enacting H.R. 699 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    H.R. 699 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Assistant Director 
for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 699 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 H.R. 699 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that, pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
699 updates the privacy protections for electronic 
communications information that is stored by third-party 
service providers in order to protect consumer privacy 
interests while meeting law enforcement needs.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 699 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Email Privacy Act.''
    Sec. 2. Voluntary Disclosure Corrections. Section 2 of the 
bill makes a series of technical and conforming changes to 
section 18 U.S.C. Sec. 2702. For instance, to harmonize the 
statutory language in sections 2702 and 2703, the bill changes 
``divulge'' to ``disclose'' and inserts ``wire or electronic'' 
before ``communication,'' where relevant. The phrase ``to the 
public'' following ``remote computing service'' in paragraph 
(2) of subsection (a) is removed as redundant.\26\ Section 2 
also incorporates language such as ``in electronic storage 
with, or otherwise stored, held, or maintained by'' to clarify 
that the voluntary disclosure prohibitions and exceptions to 
that prohibition in section 2702 apply to the content of 
communications regardless of whether the communication has been 
opened or read.\27\ This section also makes conforming changes 
to the lawful consent exceptions to voluntary disclosure in 
subsections (b) and (c) of section 2702.
---------------------------------------------------------------------------
    \26\See definition of ``remote computing service'' in 18 U.S.C. 
Sec. 2711(2).
    \27\See Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004).
---------------------------------------------------------------------------
    Sec. 3. Amendments to Required Disclosure Section. Section 
3 of the bill amends 18 U.S.C. Sec. 2703 to remove the tiered 
system of standards for compelling disclosure of communications 
content from a third party provider. Except as provided in 
subsections (i) and (j) of section 2703, subsections (a) and 
(b) require the government to obtain a warrant to compel 
disclosure by an ECS or RCS provider of stored wire or 
electronic communication content in a criminal investigation. 
It adds language authorizing the court to include a date by 
which providers must disclose the information sought in a 
warrant. In the absence of a date of disclosure, the provider 
must ``promptly'' respond to the warrant. Prompt response 
includes disclosure pursuant to the warrant, objection to the 
warrant, or a request for additional time to disclose pursuant 
to the warrant. Merely acknowledging receipt of a warrant or 
simply informing the governmental entity of when a provider 
intends to disclose contents pursuant to a warrant does not 
constitute ``prompt'' response under this section.
    As with the amendments to section 2702, section 3 amends 
section 2703 to incorporate language such as ``in electronic 
storage with, or otherwise stored, held, or maintained by'' to 
clarify that the warrant standard applies to the content of 
communications regardless of whether the communication has been 
opened or read.\28\
---------------------------------------------------------------------------
    \28\Id.
---------------------------------------------------------------------------
    Section 3 makes several technical and conforming changes to 
subsection (c) of section 2703 and instructs that subsection 
(c) is subject to the authorities preserved by subsections (i) 
and (j) of section 2703. Section 3 also amends subsection (d) 
to remove the authority to acquire the content of 
communications with a 2703(d) court order.
    Section 3 creates a new subsection (h) acknowledging that 
an ECS or RCS provider may notify a subscriber or customer of 
receipt of a warrant, court order, subpoena, or request under 
subsections (a), (b), (c), or (d) of section 2703, unless 
prohibited from doing so pursuant to an order issued under 
section 2705.
    Section 3 creates a new subsection (i) preserving the 
authority of a governmental entity to compel disclosure of a 
wire or electronic communication (including its content) 
directly from the originator, addressee, or intended recipient 
of a communication and preserving the authority of a 
governmental entity to compel disclosure of a wire or 
electronic communication (including its content) directly from 
a person or entity that provides an electronic communication 
service to its officers, directors, employees, or agents. 
Many--if not most--modern day businesses and governmental 
entities offer email services to their employees and officers, 
which constitutes an ``electronic communication service'' under 
the definition in the SCA.\29\ Paragraph (2) of subsection (i) 
makes clear that the warrant standard in subsections (a) and 
(b) does not preclude the use of a subpoena to compel 
disclosure of wire or electronic communications directly from 
any individual, business, or governmental entity.
---------------------------------------------------------------------------
    \29\See 18 U.S.C. Sec. 2711(10) (cross-referencing the definitions 
in the Wiretap Act, 18 U.S.C. Sec. 2510. The definition of electronic 
communication service can be found at 18 U.S.C.Sec. 2510(15).
---------------------------------------------------------------------------
    Paragraph (3) of the new subsection (i) preserves the 
ability of a governmental entity to compel disclosure of public 
commercial content with process other than a warrant.
    Section 3 creates a new subsection (j) preserving the 
authority of Congress, through its constitutional power of 
inquiry, to require disclosure, including through use of a 
congressional subpoena, of the contents of a wire or electronic 
communication that is in electronic storage with or otherwise 
stored, held, or maintained by an ECS or RCS provider.
    Sec. 4. Delayed Notice. Section 4 amends the delayed notice 
provisions contained in 18 U.S.C. Sec. 2705. It strikes 
subsection (a) of section 2705, which currently sets forth 
procedures by which the government obtains a delayed-notice 
order against itself when it seeks to obtain the contents of a 
communication with a subpoena or 2703(d) order since, under 
subsections (a) and (b) of section 2703 as amended by this Act, 
a warrant is required to compel disclosure of the contents of a 
communication from an ECS or RCS.
    Subsection (b) of existing section 2705 has been amended 
and renumbered as a new subsection (a). It allows the 
government to seek a court order instructing an ECS or RCS 
provider not to notify any other person of the existence of a 
warrant, order, subpoena, or other directive. The new 
subsection (b) authorizes a court to issue a delayed-notice 
order for a period of up to 180 days if the court determines 
that there is reason to believe that notification of the 
existence of the warrant, subpoena, or court order will likely 
result in one of the following adverse results:

        (A) Lendangering the life or physical safety of an 
        individual;

        (B) Lflight from prosecution;

        (C) Ldestruction of or tampering with evidence;

        (D) Lintimidation of potential witnesses; or

        (E) Lotherwise seriously jeopardizing an investigation 
        or unduly delaying a trial.

    The existing statute requires the court to find that notice 
``will'' produce an adverse result. The new subsection (b) 
establishes a standard of ``will likely'' result. This does not 
require the government to demonstrate with a certainty that one 
of the outcomes will, in fact, result. The government need only 
demonstrate that the result is likely.
    Section 4 creates a new subsection (c) to section 2705 to 
permit a governmental entity to seek one or more extensions of 
the delayed-notice order for periods of up to 180 days each.
    Sec. 5. Rule of Construction. Section 5 clarifies that 
nothing in the Act precludes acquisition of wire or electronic 
communications, including their contents, pursuant to the 
Wiretap Act, the Foreign Intelligence Surveillance Act, or any 
other provision of law not specifically amended by the Act.

         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 (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--CRIMES

           *       *       *       *       *       *       *


      CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND 
TRANSACTIONAL RECORDS ACCESS

           *       *       *       *       *       *       *


Sec. 2702. Voluntary disclosure of customer communications or records

    (a) Prohibitions.--Except as provided in subsection (b) or 
(c)--
            (1) a person or entity providing an electronic 
        communication service to the public shall not knowingly 
        [divulge] disclose to any person or entity the contents 
        of a communication [while in electronic storage by that 
        service] that is in electronic storage with or 
        otherwise stored, held, or maintained by that service; 
        and
            (2) a person or entity providing remote computing 
        service [to the public] shall not knowingly [divulge] 
        disclose to any person or entity the contents of any 
        communication [which is carried or maintained on that 
        service] that is stored, held, or maintained by that 
        service--
                    (A) on behalf of, and received by means of 
                electronic transmission from (or created by 
                means of computer processing of communications 
                received by means of electronic transmission 
                from), a subscriber or customer of such 
                service;
                    (B) solely for the purpose of providing 
                storage or computer processing services to such 
                subscriber or customer, if the provider is not 
                authorized to access the contents of any such 
                communications for purposes of providing any 
                services other than storage or computer 
                processing; and
            (3) [a provider of] a person or entity providing 
        remote computing service or electronic communication 
        service to the public shall not knowingly [divulge] 
        disclose a record or other information pertaining to a 
        subscriber to or customer of such service (not 
        including the contents of communications covered by 
        paragraph (1) or (2)) to any governmental entity.
    (b) Exceptions for disclosure of communications.--A 
provider described in subsection (a) may [divulge] disclose the 
contents of a wire or electronic communication--
            [(1) to an addressee or intended recipient of such 
        communication or an agent of such addressee or intended 
        recipient;]
            (1) to an originator, addressee, or intended 
        recipient of such communication, to the subscriber or 
        customer on whose behalf the provider stores, holds, or 
        maintains such communication, or to an agent of such 
        addressee, intended recipient, subscriber, or customer;
            (2) as otherwise authorized in section 2517, 
        2511(2)(a), or 2703 of this title;
            [(3) with the lawful consent of the originator or 
        an addressee or intended recipient of such 
        communication, or the subscriber in the case of remote 
        computing service;]
            (3) with the lawful consent of the originator, 
        addressee, or intended recipient of such communication, 
        or of the subscriber or customer on whose behalf the 
        provider stores, holds, or maintains such 
        communication;
            (4) to a person employed or authorized or whose 
        facilities are used to forward such communication to 
        its destination;
            (5) as may be necessarily incident to the rendition 
        of the service or to the protection of the rights or 
        property of the provider of that service;
            (6) to the National Center for Missing and 
        Exploited Children, in connection with a report 
        submitted thereto under section 2258A;
            (7) to a law enforcement agency--
                    (A) if the contents--
                            (i) were inadvertently obtained by 
                        the service provider; and
                            (ii) appear to pertain to the 
                        commission of a crime;
            (8) to a governmental entity, if the provider, in 
        good faith, believes that an emergency involving danger 
        of death or serious physical injury to any person 
        requires disclosure without delay of communications 
        relating to the emergency.
    (c) Exceptions for Disclosure of Customer Records.--A 
provider described in subsection (a) may [divulge] disclose a 
record or other information pertaining to a subscriber to or 
customer of such service (not including the contents of wire or 
electronic communications covered by subsection (a)(1) or 
(a)(2))--
            (1) as otherwise authorized in section 2703;
            [(2) with the lawful consent of the customer or 
        subscriber;]
            (2) with the lawful consent of the subscriber or 
        customer;
            (3) as may be necessarily incident to the rendition 
        of the service or to the protection of the rights or 
        property of the provider of that service;
            (4) to a governmental entity, if the provider, in 
        good faith, believes that an emergency involving danger 
        of death or serious physical injury to any person 
        requires disclosure without delay of information 
        relating to the emergency;
            (5) to the National Center for Missing and 
        Exploited Children, in connection with a report 
        submitted thereto under section 2258A; or
            (6) to any person other than a governmental entity.
    (d) Reporting of Emergency Disclosures.--On an annual 
basis, the Attorney General shall submit to the Committee on 
the Judiciary of the House of Representatives and the Committee 
on the Judiciary of the Senate a report containing--
            (1) the number of accounts from which the 
        Department of Justice has received voluntary 
        disclosures under subsection (b)(8);
            (2) a summary of the basis for disclosure in those 
        instances where--
                    (A) voluntary disclosures under subsection 
                (b)(8) were made to the Department of Justice; 
                and
                    (B) the investigation pertaining to those 
                disclosures was closed without the filing of 
                criminal charges; and
            (3) the number of accounts from which the 
        Department of Justice has received voluntary 
        disclosures under subsection (c)(4).

Sec. 2703. Required disclosure of customer communications or records

    [(a) Contents of Wire or Electronic Communications in 
Electronic Storage.--A governmental entity may require the 
disclosure by a provider of electronic communication service of 
the contents of a wire or electronic communication, that is in 
electronic storage in an electronic communications system for 
one hundred and eighty days or less, 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. A governmental entity may require the disclosure 
by a provider of electronic communications services of the 
contents of a wire or electronic communication that has been in 
electronic storage in an electronic communications system for 
more than one hundred and eighty days by the means available 
under subsection (b) of this section.
    [(b) Contents of Wire or Electronic Communications in a 
Remote Computing Service.--(1) A governmental entity may 
require a provider of remote computing service to disclose the 
contents of any wire or electronic communication to which this 
paragraph is made applicable by paragraph (2) of this 
subsection--
            [(A) without required notice to the subscriber or 
        customer, 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) by a 
        court of competent jurisdiction; or
            [(B) with prior notice from the governmental entity 
        to the subscriber or customer if the governmental 
        entity--
                    [(i) uses an administrative subpoena 
                authorized by a Federal or State statute or a 
                Federal or State grand jury or trial subpoena; 
                or
                    [(ii) obtains a court order for such 
                disclosure under subsection (d) of this 
                section;
        except that delayed notice may be given pursuant to 
        section 2705 of this title.
    [(2) Paragraph (1) is applicable with respect to any wire 
or electronic communication that is held or maintained on that 
service--
            [(A) on behalf of, and received by means of 
        electronic transmission from (or created by means of 
        computer processing of communications received by means 
        of electronic transmission from), a subscriber or 
        customer of such remote computing service; and
            [(B) solely for the purpose of providing storage or 
        computer processing services to such subscriber or 
        customer, if the provider is not authorized to access 
        the contents of any such communications for purposes of 
        providing any services other than storage or computer 
        processing.
    [(c) Records Concerning Electronic Communication Service or 
Remote Computing Service.--(1) 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 to or customer of such 
service (not including the contents of communications) only 
when 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) by a court of competent 
        jurisdiction;
            [(B) obtains a court order for such disclosure 
        under subsection (d) of this section;
            [(C) has the consent of the subscriber or customer 
        to such disclosure;
            [(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 such provider, which 
        subscriber or customer is engaged in telemarketing (as 
        such term is defined in section 2325 of this title); or
            [(E) seeks information under paragraph (2).
    [(2) A provider of electronic communication service or 
remote computing service shall 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 utilized;
            [(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 to or customer of such service when the 
governmental entity uses an administrative subpoena authorized 
by a Federal or State statute or a Federal or State grand jury 
or trial subpoena or any means available under paragraph (1).
    [(3) A governmental entity receiving records or information 
under this subsection is not required to provide notice to a 
subscriber or customer.]
    (a) Contents of Wire or Electronic Communications in 
Electronic Storage.--Except as provided in subsections (i) and 
(j), a governmental entity may require the disclosure by a 
provider of electronic communication service of the contents of 
a wire or electronic communication that is in electronic 
storage with or otherwise stored, held, or maintained by that 
service 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--
            (1) is issued by a court of competent jurisdiction; 
        and
            (2) may indicate the date by which the provider 
        must make the disclosure to the governmental entity.
In the absence of a date on the warrant indicating the date by 
which the provider must make disclosure to the governmental 
entity, the provider shall promptly respond to the warrant.
    (b) Contents of Wire or Electronic Communications in a 
Remote Computing Service.--
            (1) In general.--Except as provided in subsections 
        (i) and (j), a governmental entity may require the 
        disclosure by a provider of remote computing service of 
        the contents of a wire or electronic communication that 
        is stored, held, or maintained by that service 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--
                    (A) is issued by a court of competent 
                jurisdiction; and
                    (B) may indicate the date by which the 
                provider must make the disclosure to the 
                governmental entity.
        In the absence of a date on the warrant indicating the 
        date by which the provider must make disclosure to the 
        governmental entity, the provider shall promptly 
        respond to the warrant.
            (2) Applicability.--Paragraph (1) is applicable 
        with respect to any wire or electronic communication 
        that is stored, held, or maintained by the provider--
                    (A) on behalf of, and received by means of 
                electronic transmission from (or created by 
                means of computer processing of communication 
                received by means of electronic transmission 
                from), a subscriber or customer of such remote 
                computing service; and
                    (B) solely for the purpose of providing 
                storage or computer processing services to such 
                subscriber or customer, if the provider is not 
                authorized to access the contents of any such 
                communications for purposes of providing any 
                services other than storage or computer 
                processing.
    (c) Records Concerning Electronic Communication Service or 
Remote Computing Service.--
            (1) In general.--Except as provided in subsections 
        (i) and (j), a governmental entity may require the 
        disclosure by a provider of electronic communication 
        service or remote computing service of a record or 
        other information pertaining to a subscriber to or 
        customer of such service (not including the contents of 
        wire or electronic communications), only--
                    (A) if a 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--
                            (i) is issued by a court of 
                        competent jurisdiction directing the 
                        disclosure; and
                            (ii) may indicate the date by which 
                        the provider must make the disclosure 
                        to the governmental entity;
                    (B) if a governmental entity obtains a 
                court order directing the disclosure under 
                subsection (d);
                    (C) with the lawful consent of the 
                subscriber or customer; or
                    (D) as otherwise authorized in paragraph 
                (2).
            (2) Subscriber or customer information.--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 available 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 or customer 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.
    (d) Requirements for Court Order.--A court order for 
disclosure under subsection [(b) or] (c) may be issued by any 
court that is a court of competent jurisdiction and shall issue 
only if the governmental entity offers specific and articulable 
facts showing that there are reasonable grounds to believe that 
[the contents of a wire or electronic communication, or] the 
records or other information [sought,] sought are relevant and 
material to an ongoing criminal investigation. In the case of a 
State governmental authority, such a court order shall not 
issue if prohibited by the law of such State. A court issuing 
an order pursuant to this [section] subsection, on a motion 
made promptly by the service provider, may quash or modify such 
order, if the information or records requested are unusually 
voluminous in nature or compliance with such order otherwise 
would cause an undue burden on such provider.
    (e) 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 wire or electronic 
communication service, its officers, employees, agents, or 
other specified persons for providing information, facilities, 
or assistance in accordance with the terms of a court order, 
warrant, subpoena, statutory authorization, or certification 
under this chapter.
    (f) Requirement To Preserve Evidence.--
            (1) In general.--A provider of wire or electronic 
        communication services or a remote computing service, 
        upon the request of a governmental entity, shall take 
        all necessary steps to preserve records and other 
        evidence in its possession pending the issuance of a 
        court order or other process.
            (2) Period of retention.--Records referred to in 
        paragraph (1) shall be retained for a period of 90 
        days, which shall be extended for an additional 90-day 
        period upon a renewed request by the governmental 
        entity.
    (g) Presence of Officer Not Required.--Notwithstanding 
section 3105 of this title, the presence of an officer shall 
not be required for service or execution of a search warrant 
issued in accordance with this chapter requiring disclosure by 
a provider of electronic communications service or remote 
computing service of the contents of communications or records 
or other information pertaining to a subscriber to or customer 
of such service.
    (h) Notice.--Except as provided in section 2705, a provider 
of electronic communication service or remote computing service 
may notify a subscriber or customer of a receipt of a warrant, 
court order, subpoena, or request under subsection (a), (b), 
(c), or (d) of this section.
    (i) Rule of Construction Related to Legal Process.--Nothing 
in this section or in section 2702 shall limit the authority of 
a governmental entity to use an administrative subpoena 
authorized by Federal or State statute, a grand jury, trial, or 
civil discovery subpoena, or 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 to--
            (1) require an originator, addressee, or intended 
        recipient of a wire or electronic communication to 
        disclose a wire or electronic communication (including 
        the contents of that communication) to the governmental 
        entity;
            (2) require a person or entity that provides an 
        electronic communication service to the officers, 
        directors, employees, or agents of the person or entity 
        (for the purpose of carrying out their duties) to 
        disclose a wire or electronic communication (including 
        the contents of that communication) to or from the 
        person or entity itself or to or from an officer, 
        director, employee, or agent of the entity to a 
        governmental entity, if the wire or electronic 
        communication is stored, held, or maintained on an 
        electronic communications system owned, operated, or 
        controlled by the person or entity; or
            (3) require a person or entity that provides a 
        remote computing service or electronic communication 
        service to disclose a wire or electronic communication 
        (including the contents of that communication) that 
        advertises or promotes a product or service and that 
        has been made readily accessible to the general public.
    (j) Rule of Construction Related to Congressional 
Subpoenas.--Nothing in this section or in section 2702 shall 
limit the power of inquiry vested in the Congress by Article I 
of the Constitution of the United States, including the 
authority to compel the production of a wire or electronic 
communication (including the contents of a wire or electronic 
communication) that is stored, held, or maintained by a person 
or entity that provides remote computing service or electronic 
communication service.

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[Sec. 2705. Delayed notice

    [(a) Delay of Notification.--(1) A governmental entity 
acting under section 2703(b) of this title may--
            [(A) where a court order is sought, include in the 
        application a request, which the court shall grant, for 
        an order delaying the notification required under 
        section 2703(b) of this title for a period not to 
        exceed ninety days, if the court determines that there 
        is reason to believe that notification of the existence 
        of the court order may have an adverse result described 
        in paragraph (2) of this subsection; or
            [(B) where an administrative subpoena authorized by 
        a Federal or State statute or a Federal or State grand 
        jury subpoena is obtained, delay the notification 
        required under section 2703(b) of this title for a 
        period not to exceed ninety days upon the execution of 
        a written certification of a supervisory official that 
        there is reason to believe that notification of the 
        existence of the subpoena may have an adverse result 
        described in paragraph (2) of this subsection.
    [(2) An adverse result for the purposes of paragraph (1) of 
this subsection is--
            [(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) The governmental entity shall maintain a true copy of 
certification under paragraph (1)(B).
    [(4) Extensions of the delay of notification provided in 
section 2703 of up to ninety days each may be granted by the 
court upon application, or by certification by a governmental 
entity, but only in accordance with subsection (b) of this 
section.
    [(5) Upon expiration of the period of delay of notification 
under paragraph (1) or (4) of this subsection, the governmental 
entity shall serve upon, or deliver by registered or first-
class mail to, the customer or subscriber a copy of the process 
or request together with notice that--
            [(A) states with reasonable specificity the nature 
        of the law enforcement inquiry; and
            [(B) informs such customer or subscriber--
                    [(i) that information maintained for such 
                customer or subscriber by the service provider 
                named in such process or request was supplied 
                to or requested by that governmental authority 
                and the date on which the supplying or request 
                took place;
                    [(ii) that notification of such customer or 
                subscriber was delayed;
                    [(iii) what governmental entity or court 
                made the certification or determination 
                pursuant to which that delay was made; and
                    [(iv) which provision of this chapter 
                allowed such delay.
    [(6) As used in this subsection, the term ``supervisory 
official'' means the investigative agent in charge or assistant 
investigative agent in charge or an equivalent of an 
investigating agency's headquarters or regional office, or the 
chief prosecuting attorney or the first assistant prosecuting 
attorney or an equivalent of a prosecuting attorney's 
headquarters or regional office.
    [(b) Preclusion of Notice to Subject of Governmental 
Access.--A governmental entity acting under section 2703, when 
it is not required to notify the subscriber or customer under 
section 2703(b)(1), or to the extent that it may delay such 
notice pursuant to subsection (a) of this section, may apply to 
a court for an order commanding a provider of electronic 
communications service or remote computing service to whom a 
warrant, subpoena, or court order is directed, for such period 
as the court deems appropriate, not to notify any other person 
of the existence of the warrant, subpoena, or court order. The 
court shall enter such an order if it determines that there is 
reason to believe that notification of the existence of the 
warrant, subpoena, or court order will result in--
            [(1) endangering the life or physical safety of an 
        individual;
            [(2) flight from prosecution;
            [(3) destruction of or tampering with evidence;
            [(4) intimidation of potential witnesses; or
            [(5) otherwise seriously jeopardizing an 
        investigation or unduly delaying a trial.]

Sec. 2705. DELAYED NOTICE.

    (a) In General.--A governmental entity acting 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.
    (b) Determination.--A court shall grant a request for an 
order made under subsection (a) for delayed notification of up 
to 180 days if the court determines that there is reason to 
believe that notification of the existence of the warrant, 
order, subpoena, or other directive will likely result in--
            (1) endangering the life or physical safety of an 
        individual;
            (2) flight from prosecution;
            (3) destruction of or tampering with evidence;
            (4) intimidation of potential witnesses; or
            (5) otherwise seriously jeopardizing an 
        investigation or unduly delaying a trial.
    (c) Extension.--Upon request by a governmental entity, a 
court may grant one or more extensions, for periods of up to 
180 days each, of an order granted in accordance with 
subsection (b).

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