[House Report 114-580]
[From the U.S. Government Publishing Office]


114th Congress }                                           { Report
                        HOUSE OF REPRESENTATIVES
 2d Session    }                                           { 114-580

======================================================================
 
                            KELSEY SMITH ACT

                                _______
                                

  May 23, 2016.--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

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 4889]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 4889) 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, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     4
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.......     5
Committee Cost Estimate..........................................     5
Congressional Budget Office Estimate.............................     5
Federal Mandates Statement.......................................     7
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Advisory Committee Statement.....................................     7
Applicability to Legislative Branch..............................     7
Section-by-Section Analysis of the Legislation...................     7
Changes in Existing Law Made by the Bill, as Reported............     8
Minority Views...................................................    13

    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 ``Kelsey Smith Act''.

SEC. 2. REQUIRED EMERGENCY DISCLOSURE OF CALL LOCATION INFORMATION TO 
                    LAW ENFORCEMENT.

  Section 222 of the Communications Act of 1934 (47 U.S.C. 222) is 
amended--
          (1) in subsection (d)--
                  (A) in paragraph (4), by redesignating subparagraphs 
                (A) through (C) as clauses (i) through (iii), 
                respectively;
                  (B) by redesignating paragraphs (1) through (4) as 
                subparagraphs (A) through (D), respectively;
                  (C) by striking ``Nothing in this section'' and 
                inserting the following:
          ``(1) Permitted disclosures.--Nothing in this section''; and
                  (D) by adding at the end the following:
          ``(2) Required emergency disclosure of call location 
        information to law enforcement.--Notwithstanding subsections 
        (a), (b), and (c), at the request of an investigative or law 
        enforcement officer, a provider of a covered service shall 
        provide to such officer the call location information, or the 
        best available location information, of a telecommunications 
        device that is--
                  ``(A) used to place a 9-1-1 call requesting emergency 
                assistance; or
                  ``(B) reasonably believed to be in the possession of 
                an individual that the law enforcement officer 
                reasonably believes is in an emergency situation that 
                involves the risk of death or serious physical harm to 
                the individual.
          ``(3) 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 provider of a 
        covered service, 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 paragraph (2) and any regulations promulgated 
        under such paragraph.'';
          (2) in subsection (f)(1), by striking ``subsection (d)(4)'' 
        and inserting ``subsection (d)(1)(D)''; and
          (3) in subsection (h), by adding at the end the following:
          ``(8) 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)).
          ``(9) 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.''.

                          Purpose and Summary

    H.R. 4889, Kelsey Smith Act, requires providers of a 
certain wireless services to provide call location information 
for the device of a person that law enforcement believes to be 
in an emergency situation with a risk of death or serious 
physical injury.

                  Background and Need for Legislation

    When a cell phone connects to or communicates with the 
network, whether to make a call, download data, or even receive 
a push notification or background update, the cell provider 
notes the approximate location using the closest cell tower and 
the device's proximity to that tower. Current federal law 
permits telecommunications carriers to use, disclose, or permit 
access by emergency personnel to call location information for 
users of their service in order to respond to a call for 
emergency services.\1\ In addition, it permits carriers to 
provide location information to the user's legal guardian or 
immediate family when there is an emergency situation with risk 
of death or serious physical harm.\2\ However, federal law does 
not compel disclosure of that information to law enforcement, 
leaving the decision whether to disclose to the discretion of 
the carrier.
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    \1\47 U.S.C. 222(d)(4)(A).
    \2\47 U.S.C. 222(d)(4)(B).
---------------------------------------------------------------------------
    In 2007, Kelsey Smith was abducted from a Target parking 
lot in Kansas in broad daylight while shopping for a birthday 
gift for her boyfriend. She was 18 years old, and just nine 
days past her high school graduation, preparing to attend 
college in the fall. While the search for her began 
immediately, law enforcement encountered difficulty in 
obtaining location information from her cell phone provider. 
Because the service provider did not have clear legal guidance 
for the appropriate course of action, the provider spent a 
great deal of time considering the various legal implications 
of divulging that information. It eventually required a 
subpoena to obtain the information. After four days of 
searching, law enforcement located her body within 45 minutes 
of receiving the device location data. Kelsey had been sexually 
assaulted and murdered, her body left in the woods. Following 
her death, Kelsey's parents became committed to ensuring that 
no other family would endure this unnecessary delay and 
prolonged agony of waiting. As Kelsey's mother, Melissa Smith, 
testified before the Subcommittee on Communications and 
Technology, perhaps Kelsey laid in the woods for four days 
because the law needed to change.
    This legislation would allow law enforcement to access 
location data more quickly in order to better react to 
emergencies and locate and save potential victims more quickly. 
Commercial mobile service providers would be required to 
provide call location information to law enforcement when the 
device has been used to call 9-1-1 for emergency assistance, or 
for a device that is in the possession of a user that law 
enforcement believes to be in an emergency situation involving 
risk of death or serious physical harm. In addition, the 
legislation limits the liability for carriers that, in good 
faith, are compelled to provide location data in compliance 
with the law.
    To date, similar legislation has passed in 22 states.\3\ 
The state versions of the Kelsey Smith Act have already helped 
to save lives, including a case in Kelsey Smith's home state of 
Kansas where a vehicle was stolen from an ATM with a baby in 
the backseat. By tracking the device that remained in the car, 
police were able to locate the vehicle within 45 minutes of the 
crime, and the baby was recovered, unharmed. In instances like 
this, every second counts, and any delay while seeking a 
warrant or sworn statement could mean the difference between 
whether a victim is found dead or alive.
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    \3\http://kelseysarmy.org/#ks-act.
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    The Kelsey Smith Act is silent as to how state and local 
law enforcement may exercise the powers granted by this Act. As 
employees and political subdivisions of the states, law 
enforcement must abide by the policies and procedures 
established within their states that govern their conduct. The 
Kelsey Smith Act establishes an obligation on wireless 
carriers; how and when law enforcement avails itself of the 
tools provided in this Act are matters of state law.

                                Hearings

    On April 13, 2016, the Subcommittee on Communications and 
Technology held a hearing on H.R. 4889. The Subcommittee 
received testimony from:
     Melissa Smith, mother of Kelsey Smith, Treasurer, 
Kelsey Smith Foundation.

                        Committee Consideration

    Representative Yoder introduced H.R. 4889 on March 23, 
2016.
    On April 18 and 19, 2016, the Subcommittee on 
Communications and Technology met in open markup session. 
Chairman Walden offered an amendment incorporating liability 
protection for covered providers who provided location data in 
compliance with the Act. The amendment was accepted by voice 
vote. The Subcommittee forwarded H.R. 4889 as amended, to the 
full Committee by a voice vote.
    On April 26, 27, and 28, 2016, the full Committee on Energy 
and Commerce met in open markup session, where Subcommittee 
Chairman Walden offered an amendment making clarifying changes 
to the liability language. The amendment was adopted, and the 
Committee ordered H.R. 4889 reported to the House, as amended, 
by a 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. No 
recorded votes were taken on this legislation.

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee held a hearing and made 
findings that are reflected in this report.

         Statement of General Performance Goals and Objectives

    The goal and objective of H.R. 4889 is to ensure that 
providers of certain wireless services provide location data to 
law enforcement when there is an emergency that involves risk 
of death or serious physical harm.

   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. 
4889 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. 4889 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, May 20, 2016.
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. 4889, the Kelsey 
Smith Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Kathleen 
Gramp.
            Sincerely,
                                         Robert A. Sunshine
                                        (For Keith Hall, Director).
    Enclosure.

H.R. 4889--Kelsey Smith Act

    H.R. 4889 would require telecommunications providers, upon 
request, to share data about the location of a call placed from 
a mobile phone or through an Internet voice service under 
certain circumstances. Under the bill, such requests for 
location information could only be made by a law enforcement 
officer who is responding to an emergency call or an emergency 
situation where a person is in serious physical danger. 
Furthermore, governmental entities would not be allowed to 
pursue civil or administrative actions against entities or 
individuals that provide such information in good faith.
    Based on information from the Federal Communications 
Commission (FCC), CBO estimates that the regulatory activities 
necessary to implement H.R. 4889 would have no significant 
effect on the agency's workload or costs. Moreover, under 
current law, the FCC is authorized to collect fees sufficient 
to offset the cost of its regulatory activities each year. 
Therefore, CBO estimates that the net cost to implement H.R. 
4889 would be negligible, assuming annual appropriation actions 
consistent with the agency's authorities.
    Because enacting H.R. 4889 would not affect direct spending 
or revenues, pay-as-you-go procedures do not apply. CBO 
estimates that enacting H.R. 4889 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2027.
    H.R. 4889 would impose an intergovernmental mandate as 
defined in the Unfunded Mandates Reform Act (UMRA) by 
prohibiting public entities from initiating civil or 
administrative proceedings against service providers that relay 
requested information and other assistance. CBO estimates that 
the cost, if any, for public entities to comply with the 
mandate would be minimal and well below the annual threshold 
established in UMRA ($77 million in 2016, adjusted annually for 
inflation).
    H.R. 4889 would impose a private-sector mandate as defined 
in 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 the call location data immediately at the 
request of law enforcement officials when the cell phone has 
been used to place a 9-1-1 call requesting emergency 
assistance, or when the cell phone is believed to be in the 
possession of someone law enforcement believes is in a serious 
emergency situation. 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 that would have been awarded for such claims in the 
absence of the bill. A search of the available literature 
suggests that few of those specific types of lawsuits have been 
brought against providers under current law, and that most 
cases involving the release of location information have been 
brought against the government or government officials. 
Although there is some uncertainty about the number of claims 
against telecommunications providers that would be successful 
and about the value of awards or settlements in those cases, 
because of the narrow scope of the cases involved CBO expects 
that the costs in any one year would probably fall below the 
annual threshold established in UMRA for private-sector 
mandates ($154 million, in 2016, adjusted annually for 
inflation).
    The CBO staff contacts for this estimate are Kathleen Gramp 
(for federal costs), Rachel Austin (for state and local 
mandates), and Logan Smith (for private-sector mandates). The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director of 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. 4889 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. 4889 does not 
direct any rule making within the meaning of 5 U.S.C. 551, as 
specified in Section 2(a).

                      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 that the Act may be cited as the 
``Kelsey Smith Act.''

Section 2. Required emergency disclosure of call location information 
        to law enforcement

    Section 2 amends Section 222 of the Communications Act of 
1934 by adding a new subsection (d)(2) that requires covered 
service providers to provide location data or call location 
information to law enforcement officers at their request for 
the device of a user that law enforcement believes to be in an 
emergency situation that involves the risk of death or serious 
physical harm, or when the device was used to place a call to 
9-1-1 requesting emergency assistance.
    The narrow scope of the legislation is intended to prevent 
abuse or overreach. By limiting it to true emergency situations 
where a victim is at risk of death or serious injury, law 
enforcement cannot use the law to obtain location information 
for routine, non-emergency investigations or for any other 
purpose. In addition, the Act only grants access to call 
location information and triangulated location data--the 
legislation would not allow law enforcement to obtain call 
history, any data on the device, texts or emails from the 
device owner, or any other information connected to the device. 
This legislation is intended to only address the specific 
situation of providing law enforcement with a tool to locate a 
device and presumably the user. Moreover, the legislation 
establishes an obligation on wireless carriers; how and when 
law enforcement avails itself of the tools provided in this Act 
are matters of state law.
    In addition, the legislation states that there shall be no 
cause of action against any provider of a covered service that 
provides, in good faith, location information in accordance 
with this Act. This hold harmless language helps to protect the 
carriers from liability so long as they are in compliance with 
the Act, and further takes the decision making out of the hands 
of service providers and places it with law enforcement. Given 
the unique skill sets of law enforcement for making 
determinations as to what constitutes an emergency, it is 
appropriate that they are tasked with this responsibility.
    The Act defines ``covered service'' as a commercial mobile 
service, or an IP enabled voice service. The Act also defines 
``investigative or law enforcement officer'' through cross-
reference to section 2510 of title 18 of the U.S. Code.

         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 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. 222. PRIVACY OF CUSTOMER INFORMATION.

  (a) In General.--Every telecommunications carrier has a duty 
to protect the confidentiality of proprietary information of, 
and relating to, other telecommunication carriers, equipment 
manufacturers, and customers, including telecommunication 
carriers reselling telecommunications services provided by a 
telecommunications carrier.
  (b) Confidentiality of Carrier Information.--A 
telecommunications carrier that receives or obtains proprietary 
information from another carrier for purposes of providing any 
telecommunications service shall use such information only for 
such purpose, and shall not use such information for its own 
marketing efforts.
  (c) Confidentiality of Customer Proprietary Network 
Information.--
          (1) Privacy requirements for telecommunications 
        carriers.--Except as required by law or with the 
        approval of the customer, a telecommunications carrier 
        that receives or obtains customer proprietary network 
        information by virtue of its provision of a 
        telecommunications service shall only use, disclose, or 
        permit access to individually identifiable customer 
        proprietary network information in its provision of (A) 
        the telecommunications service from which such 
        information is derived, or (B) services necessary to, 
        or used in, the provision of such telecommunications 
        service, including the publishing of directories.
          (2) Disclosure on request by customers.--A 
        telecommunications carrier shall disclose customer 
        proprietary network information, upon affirmative 
        written request by the customer, to any person 
        designated by the customer.
          (3) Aggregate customer information.--A 
        telecommunications carrier that receives or obtains 
        customer proprietary network information by virtue of 
        its provision of a telecommunications service may use, 
        disclose, or permit access to aggregate customer 
        information other than for the purposes described in 
        paragraph (1). A local exchange carrier may use, 
        disclose, or permit access to aggregate customer 
        information other than for purposes described in 
        paragraph (1) only if it provides such aggregate 
        information to other carriers or persons on reasonable 
        and nondiscriminatory terms and conditions upon 
        reasonable request therefor.
  (d) Exceptions.--
          (1)  Permitted disclosures.--Nothing in this section 
        prohibits a telecommunications carrier from using, 
        disclosing, or permitting access to customer 
        proprietary network information obtained from its 
        customers, either directly or indirectly through its 
        agents--
                  [(1)] (A) to initiate, render, bill, and 
                collect for telecommunications services;
                  [(2)] (B) to protect the rights or property 
                of the carrier, or to protect users of those 
                services and other carriers from fraudulent, 
                abusive, or unlawful use of, or subscription 
                to, such services;
                  [(3)] (C) to provide any inbound 
                telemarketing, referral, or administrative 
                services to the customer for the duration of 
                the call, if such call was initiated by the 
                customer and the customer approves of the use 
                of such information to provide such service; 
                and
                  [(4)] (D) to provide call location 
                information concerning the user of a commercial 
                mobile service (as such term is defined in 
                section 332(d)) or the user of an IP-enabled 
                voice service (as such term is defined in 
                section 7 of the Wireless Communications and 
                Public Safety Act of 1999 (47 U.S.C. 615b))--
                          [(A)] (i) to a public safety 
                        answering point, emergency medical 
                        service provider or emergency dispatch 
                        provider, public safety, fire service, 
                        or law enforcement official, or 
                        hospital emergency or trauma care 
                        facility, in order to respond to the 
                        user's call for emergency services;
                          [(B)] (ii) to inform the user's legal 
                        guardian or members of the user's 
                        immediate family of the user's location 
                        in an emergency situation that involves 
                        the risk of death or serious physical 
                        harm; or
                          [(C)] (iii) to providers of 
                        information or database management 
                        services solely for purposes of 
                        assisting in the delivery of emergency 
                        services in response to an emergency.
          (2) Required emergency disclosure of call location 
        information to law enforcement.--Notwithstanding 
        subsections (a), (b), and (c), at the request of an 
        investigative or law enforcement officer, a provider of 
        a covered service shall provide to such officer the 
        call location information, or the best available 
        location information, of a telecommunications device 
        that is--
                  (A) used to place a 9-1-1 call requesting 
                emergency assistance; or
                  (B) reasonably believed to be in the 
                possession of an individual that the law 
                enforcement officer reasonably believes is in 
                an emergency situation that involves the risk 
                of death or serious physical harm to the 
                individual.
          (3) 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 provider of a covered service, 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 paragraph (2) and any regulations 
        promulgated under such paragraph.
  (e) Subscriber List Information.--Notwithstanding subsections 
(b), (c), and (d), a telecommunications carrier that provides 
telephone exchange service shall provide subscriber list 
information gathered in its capacity as a provider of such 
service on a timely and unbundled basis, under 
nondiscriminatory and reasonable rates, terms, and conditions, 
to any person upon request for the purpose of publishing 
directories in any format.
  (f) Authority To Use Location Information.--For purposes of 
subsection (c)(1), without the express prior authorization of 
the customer, a customer shall not be considered to have 
approved the use or disclosure of or access to--
          (1) call location information concerning the user of 
        a commercial mobile service (as such term is defined in 
        section 332(d)) or the user of an IP-enabled voice 
        service (as such term is defined in section 7 of the 
        Wireless Communications and Public Safety Act of 1999 
        (47 U.S.C. 615b)), other than in accordance with 
        [subsection (d)(4)] subsection (d)(1)(D); or
          (2) automatic crash notification information to any 
        person other than for use in the operation of an 
        automatic crash notification system.
  (g) Subscriber Listed and Unlisted Information for Emergency 
Services.--Notwithstanding subsections (b), (c), and (d), a 
telecommunications carrier that provides telephone exchange 
service or a provider of IP-enabled voice service (as such term 
is defined in section 7 of the Wireless Communications and 
Public Safety Act of 1999 (47 U.S.C. 615b)) shall provide 
information described in subsection (i)(3)(A) (including 
information pertaining to subscribers whose information is 
unlisted or unpublished) that is in its possession or control 
(including information pertaining to subscribers of other 
carriers) on a timely and unbundled basis, under 
nondiscriminatory and reasonable rates, terms, and conditions 
to providers of emergency services, and providers of emergency 
support services, solely for purposes of delivering or 
assisting in the delivery of emergency services.
  (h) Definitions.--As used in this section:
          (1) Customer proprietary network information.--The 
        term ``customer proprietary network information'' 
        means--
                  (A) information that relates to the quantity, 
                technical configuration, type, destination, 
                location, and amount of use of a 
                telecommunications service subscribed to by any 
                customer of a telecommunications carrier, and 
                that is made available to the carrier by the 
                customer solely by virtue of the carrier-
                customer relationship; and
                  (B) information contained in the bills 
                pertaining to telephone exchange service or 
                telephone toll service received by a customer 
                of a carrier;
        except that such term does not include subscriber list 
        information.
          (2) Aggregate information.--The term ``aggregate 
        customer information'' means collective data that 
        relates to a group or category of services or 
        customers, from which individual customer identities 
        and characteristics have been removed.
          (3) Subscriber list information.--The term 
        ``subscriber list information'' means any information--
                  (A) identifying the listed names of 
                subscribers of a carrier and such subscribers' 
                telephone numbers, addresses, or primary 
                advertising classifications (as such 
                classifications are assigned at the time of the 
                establishment of such service), or any 
                combination of such listed names, numbers, 
                addresses, or classifications; and
                  (B) that the carrier or an affiliate has 
                published, caused to be published, or accepted 
                for publication in any directory format.
          (4) Public safety answering point.--The term ``public 
        safety answering point'' means a facility that has been 
        designated to receive emergency calls and route them to 
        emergency service personnel.
          (5) Emergency services.--The term ``emergency 
        services'' means 9-1-1 emergency services and emergency 
        notification services.
          (6) Emergency notification services.--The term 
        ``emergency notification services'' means services that 
        notify the public of an emergency.
          (7) Emergency support services.--The term ``emergency 
        support services'' means information or data base 
        management services used in support of emergency 
        services.
          (8) 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)).
          (9) 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.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    Democrats and Republicans agree that in emergency 
situations, law enforcement should have quick access to the 
information necessary to save lives. Democrats also believe, 
however, that new powers granted to law enforcement should also 
be accompanied by key public safeguards and privacy 
protections--especially if those protections will not slow down 
investigations. H.R. 4889, the ``Kelsey Smith Act,'' would 
require wireless carriers to turn over the location data of 
individuals in certain emergency situations. This bill, 
however, does not include after-the-fact procedural checks that 
were part of a bipartisan agreement in the 113th Congress to 
help preserve the privacy of consumers without slowing the 
investigation.

                        BACKGROUND AND ANALYSIS

    H.R. 4889 is named for Kelsey Ann Smith, who was abducted 
as she left a discount retail department store one evening in 
2007. Law enforcement officials found Kelsey's body four days 
later by using information obtained from her wireless 
carrier.\1\ This bill was introduced by Rep. Kevin Yoder (R-KS) 
on March 23, 2016.
---------------------------------------------------------------------------
    \1\Mother of Murdered Teen Pushes for Law Forcing Cellphone 
Carriers to Release Life-Saving Information, Fox News (Apr. 13, 2014) 
(online at http://www.foxnews.com/politics/2013/04/13/mother-murdered-
teen-pushes-for-law-mandating-cell-phone-carriers-to-release.html).
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    Rather than use the permissive standard contained in 
current law, H.R. 4889 would require wireless carriers to 
furnish to law enforcement officials the ``best available 
location information'' upon request. Specifically, wireless 
carriers would be required to turn over data for (i) a device 
used to make a 9-1-1 call or (ii) a device reasonably believed 
to be in the possession of an individual that law enforcement 
reasonably believes is in an emergency situation involving the 
risk of death or serious physical harm.
    Presently under the Communications Act, wireless carriers 
may provide location data to a user's family members during an 
``emergency situation that involves the risk of death or 
serious physical harm.''\2\ In responding to a request, the 
wireless carrier must determine whether a given situation is an 
emergency that involves risk of death or serious bodily 
harm.\3\
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    \2\47 U.S.C. 222(d)(4)(B).
    \3\Id.
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    At the time of Ms. Smith's abduction, her wireless carrier 
did not have a policy detailing how to determine if an 
emergency permitted disclosure under the law.\4\ As a result, 
it took the carrier four days to turn over her cell phone's 
location data to law enforcement. During the 113th Congress, 
the Committee on Energy and Commerce considered another version 
of the Kelsey Smith Act. Several Democratic members of the 
Committee and constitutional experts raised concerns that the 
version of the bill being considered risked violating 
consumers' privacy and Fourth Amendment rights. The Committee 
amended the bill to address some of these concerns while 
preserving law enforcement's expedited access to location data.
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    \4\The Kelsey Smith Story--A Story Of Heartache & Hope, Bryan 
Bentley, Plymouth-Canton Patch (May 21, 2014) (online at http://
patch.com/michigan/plymouth-mi/bp--the-kelsey-smith-story-a-story-of-
heartache-hope).
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    In the 113th Congress, the Committee adopted Democratic 
amendments that would require law enforcement to make a showing 
closer in line with the standard required under the Fourth 
Amendment only after a carrier was compelled to hand over a 
private citizen's location data.\5\ After accepting these 
amendments, the Committee favorably reported the bill. Even 
with these improvements, civil liberties groups continued to 
raise concerns that the amended bill could enable the 
government to exercise sweeping new powers to the detriment of 
personal privacy and contrary to the Fourth Amendment.\6\
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    \5\H.R. 1575 (113th Cong.).
    \6\See e.g., Letter from ACLU to Chairman Fred Upton and Ranking 
Member Henry A. Waxman, House Committee on Energy and Commerce (July 
29, 2014).
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    Despite these continued criticisms, the version of the bill 
introduced by Rep. Yoder in this Congress omits even the 
specific protections that were adopted in the last Congress. 
Accordingly, the version of H.R. 4889 being considered in this 
Congress takes a step back from the bipartisan work done in the 
last Congress.
    During open markup of H.R. 4889 before both the 
Subcommittee on Communications and Technology and the full 
Committee on Energy and Commerce, Democrats offered an 
amendment to H.R. 4889 to reflect the bipartisan work on the 
Kelsey Smith Act from the 113th Congress. That amendment would 
have included the key safeguards to protect the privacy of 
consumers while still meeting the public safety goals of the 
Act. The Majority was not interested in adding back even the 
safeguards they agreed to in the last Congress.
    Democrats have always been willing to work in a bipartisan 
fashion to improve this bill. But these safeguards that protect 
consumer privacy are necessary before this bill can become law. 
Law enforcement can receive these new tools to make us safer 
without the public having to sacrifice basic civil rights.

                                   Frank Pallone, Jr.,
                                           Ranking Member, Committee on 
                                               Energy and Commerce.
                                   Anna G. Eshoo,
                                           Ranking Member, Subcommittee 
                                               on Communications and 
                                               Technology.