[House Report 115-141]
[From the U.S. Government Publishing Office]


115th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {      115-141

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



 
                 TARGETING CHILD PREDATORS ACT OF 2017

                                _______
                                

  May 22, 2017.--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

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 883]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 883) to amend title 18, United States Code, to 
provide a certification process for the issuance of 
nondisclosure requirements accompanying certain administrative 
subpoenas, to provide for judicial review of such nondisclosure 
requirements, and for other purposes, having considered the 
same, report favorably thereon without amendment and recommend 
that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     5
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     6
Performance Goals and Objectives.................................     6
Advisory on Earmarks.............................................     6
Section-by-Section Analysis......................................     6
Changes in Existing Law Made by the Bill, as Reported............     7
Dissenting Views.................................................     8

                          Purpose and Summary

    H.R. 883, the ``Targeting Child Predators Act,'' provides a 
mechanism for the government to prohibit the recipient of an 
administrative subpoena under 18 U.S.C. Sec. 3486 from 
disclosing its existence to the target of an investigation in 
child exploitation cases when the law enforcement agency 
certifies that disclosure may result in: (1) endangerment to 
the life or physical safety of any person; (2) flight to avoid 
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. The 
bill also provides judicial review so a company may challenge a 
non-disclosure order.

                Background and Need for the Legislation

    Federal law authorizes federal agencies to use 
administrative subpoenas in child exploitation cases.\1\ This 
provision was originally enacted in 1998 as part of the 
Protection of Children from Sexual Predators Act.\2\ The use of 
administrative subpoenas, in lieu of grand jury subpoenas, has 
enhanced the FBI's ability to investigate online child 
exploitation offenses in an expeditious manner, which is highly 
desirable given that those crimes involve the ongoing abuse of 
children. Section 3486 created a speedy mechanism to identify 
users of electronic communication services or remote computing 
services. A timely method was needed because the information is 
extremely perishable. Many private and commercial online 
service providers maintain records on Internet usage by periods 
of time, sometimes two days or less. Although an investigative 
agency can obtain grand jury subpoenas from a U.S. Attorney's 
Office in exigent circumstances on an expedited basis, more 
commonly, the agency's acquisition of grand jury subpoenas 
takes several weeks. As a result, the Internet service provider 
is often no longer able to provide the needed information. 
Giving authority to the United States Attorneys, the Assistant 
Attorney General for the Criminal Division, and the FBI has 
facilitated the investigative process necessary to obtain 
information that identifies subjects and victimized children. 
In addition, investigative information can be particularly 
important in cases involving the abuse and exploitation of 
children.
---------------------------------------------------------------------------
    \1\See 18 U.S.C. Sec. 3486.
    \2\Pub. L. No. 105-314, 112 Stat. 2984-985 (1998).
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1. Source and scope of subpoena authority under 18 U.S.C. Sec. 3486(a)

    The Attorney General or the Attorney General's designee is 
authorized to issue administrative subpoenas for a limited 
category of information in criminal investigations of 
pornography, sex abuse, and transportation for illegal sexual 
activity offenses, where the victim was under eighteen.\3\ The 
underlying investigation must relate to an act or activity 
involving a violation of certain sexual abuse crimes,\4\ when 
the victim was a minor who had not attained the age of eighteen 
years. Section 3486(a)(1)(C) limits information that a 
governmental entity may request from a provider of electronic 
communications service or remote computing provider receiving a 
subpoena under section 3486. The service or provider can be 
required to disclose only the subscriber or customer's: (1) 
name; (2) address; (3) long distance telephone toll billing 
records; (4) telephone number or other subscriber identity; (5) 
length of service customer or subscriber utilized, which may be 
relevant to an authorized law enforcement inquiry.\5\ Using 
administrative subpoenas to obtain testimony is limited to 
requiring a custodian of records to give testimony concerning 
the production and authentication of such records.\6\ 
Administrative subpoenas issued under section 3486 may require 
production as soon as possible after service of the subpoena, 
but not less than twenty-four hours after such issuance.\7\
---------------------------------------------------------------------------
    \3\18 U.S.C. Sec. 3486(a).
    \4\18 U.S.C. Sec. Sec. 1201, 2241(c), 2242, 2243, 2251A, 2252, 
2252A, 2260, 2421, 2422, or 2423.
    \5\18 U.S.C. Sec. 3486(a)(1)(C)(i).
    \6\18 U.S.C. Sec. 3486(a)(1)(C)(ii).
    \7\18 U.S.C. Sec. 3486(a)(9).
---------------------------------------------------------------------------

2. Applicable subpoena enforcement mechanisms

    The Attorney General has no authority to enforce an 
administrative subpoena issued under 18 U.S.C. Sec. 3486(a). 
The Attorney General is permitted to invoke the aid of any 
court of the United States within the jurisdiction in which the 
investigation is carried out or of which the subpoenaed person 
is an inhabitant, or in which he carries on business.\8\ 
Failure to comply with a court order may be punished by the 
court as contempt.\9\
---------------------------------------------------------------------------
    \8\18 U.S.C. Sec. 3486(c).
    \9\18 U.S.C. Sec. 3486(c).
---------------------------------------------------------------------------

3. Notification provisions and other provisions related to safeguarding 
        privacy interests

    Federal law provides that a governmental entity receiving 
records from a provider of electronic communication service or 
remote computing service pursuant to an administrative subpoena 
(requesting the name, address, local and long distance 
telephone toll billing records, telephone number or other 
subscriber number or identity, and length and type of service) 
does not have to provide notice to the subscriber.\10\ In 
addition, 18 U.S.C. Sec. 3486(a)(6) allows an entity issuing a 
subpoena under 3486 authority to obtain an ex parte order 
preventing the disclosure of the existence of the subpoena for 
90 days if the court finds that there is reason to believe 
disclosure may result in: (1) endangerment to the life or 
physical safety of any person; (2) flight to avoid prosecution; 
(3) destruction of or tampering with evidence; or (4) 
intimidation of potential witnesses. This ex parte order is 
renewable for an additional 90-day period based on a finding 
that the reasons listed above continue to exist.\11\
---------------------------------------------------------------------------
    \10\18 U.S.C. Sec. 2703(c)(2).
    \11\18 U.S.C. Sec. 3486(a)(6)(B) and (C).
---------------------------------------------------------------------------

4. Usefulness of administrative subpoena authority pursuant to 
        Sec. 3486(a)(1)(A)(i)(I)

    The use of an administrative subpoena is an important tool 
for the investigation of child pornography and child sexual 
exploitation investigations. In cases in which children are at 
``high risk'' and/or may be in imminent danger, the execution 
of an administrative subpoena allowsimmediate requests to be 
made to the appropriate entity. Furthermore, unlike grand jury 
material, which is protected,\12\ information gleaned from the service 
of an administrative subpoena can be shared with other law enforcement 
entities without delay. Delay could literally mean the difference 
between life and death for a child. In contrast, the disclosure 
limitations placed on investigators using grand jury subpoenas may not 
allow investigators to share information necessary to the location and 
apprehension of violent child sexual predators.
---------------------------------------------------------------------------
    \12\See Fed. R. Crim. P. 6(e).
---------------------------------------------------------------------------
    The purpose of the administrative subpoena in this sphere 
is to obtain information as expeditiously as possible. Indeed, 
Congress authorized these subpoenas so agents could gather 
information without the delay of applying for a court order. 
Currently, there is no mechanism to prevent an electronic 
communications service or remote computing provider from 
notifying the investigation target that the government has 
sought their subscriber information and toll records without 
going through the courts. As of now, the only option is to seek 
a court order under 18 U.S.C. Sec. Sec. 2705(b) or 3486, both 
of which require court approval, which of course defeats the 
purpose of allowing that limited, non-content 2703(c)(2) 
information to be provided to the government efficiently with 
an administrative subpoena.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
883, but did hold a hearing on the subject of combating crimes 
against children on March 16, 2017.

                        Committee Consideration

    On April 27, 2017, the Committee met in open session and 
ordered the bill, H.R. 883, favorably reported, without 
amendment, by voice vote, 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 no 
roll call votes occurred during the Committee's consideration 
of H.R. 883.

                      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. 115, 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 26, 2017.
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. 883, the Targeting 
Child Predators Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Robert Reese, 
who can be reached at 226-2860.
            Sincerely,
                                                        Keith Hall.
Enclosure
        cc: Honorable John Conyers, Jr.
           Ranking Member




            H.R. 883--Targeting Child Predators Act of 2017


 As ordered reported by the House Committee on the Judiciary on March 
                                22, 2017




    H.R. 883 would amend the current process for issuing 
nondisclosure requirements for subpoenas in certain cases of 
child exploitation. Under current law, a formal court order is 
needed for such nondisclosure requirements. Under the bill, a 
nondisclosure requirement could be placed on a subpoena if the 
subpoena is issued concurrently with a certification that 
disclosure of the summons could have certain adverse 
consequences on the defendant or the trial; a formal court 
order would no longer be necessary.
    Based on an analysis of information provided by the 
Administrative Office of the U.S. Courts on the number of cases 
that would be affected by the bill, CBO estimates that 
implementing H.R. 883 would have no significant effect on the 
federal budget.
    Enacting H.R. 883 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting H.R. 883 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    H.R. 883 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 Robert Reese. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 883 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. 883 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. 
883, the ``Targeting Child Predators Act,'' prohibits the 
recipient of an administrative subpoena under 18 U.S.C. 
Sec. 3486 from disclosing its existence to the target of an 
investigation when the government certifies that disclosure may 
result in: (1) endangerment to the life or physical safety of 
any person; (2) flight to avoid 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. The bill also 
provides judicial review so a company may challenge a non-
disclosure order.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 883 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

    Section 1. Short Title. This section cites the short title 
of the bill as the ``Targeting Child Predators Act of 2017.''
    Section 2. Nondisclosure of Administrative Subpoenas. This 
section provides that if federal officials with administrative 
subpoena power make a certification that disclosure may result 
in: (1) endangerment to the life or physical safety of any 
person; (2) flight to avoid 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, then providers of 
electronic communication services or remote computer services 
may not disclose the existence of the subpoena for 180 days.
    Section 3. Judicial Review of Nondisclosure Requirements. 
This section provides a mechanism for judicial review for the 
provider to demand the government to begin judicial review 
proceedings or to challenge the subpoena's non-disclosure 
requirement itself.

         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 II--CRIMINAL PROCEDURE

           *       *       *       *       *       *       *


                  CHAPTER 223--WITNESSES AND EVIDENCE


Sec.
3481. Competency of accused.
     * * * * * * *
3486A. Judicial review of nondisclosure requirements.

           *       *       *       *       *       *       *


Sec. 3486. Administrative subpoenas

  (a) Authorization.--(1)(A) In any investigation of--
          (i)(I) a Federal health care offense; or (II) a 
        Federal offense involving the sexual exploitation or 
        abuse of children, the Attorney General;
          (ii) an unregistered sex offender conducted by the 
        United States Marshals Service, the Director of the 
        United States Marshals Service; or
          (iii) an offense under section 871 or 879, or a 
        threat against a person protected by the United States 
        Secret Service under paragraph (5) or (6) of section 
        3056, if the Director of the Secret Service determines 
        that the threat constituting the offense or the threat 
        against the person protected is imminent, [the 
        Secretary of the Treasury] the Secretary of Homeland 
        Security,
may issue in writing and cause to be served a subpoena 
requiring the production and testimony described in 
subparagraph (B).
  (B) Except as provided in subparagraph (C), a subpoena issued 
under subparagraph (A) may require--
          (i) the production of any records or other things 
        relevant to the investigation; and
          (ii) testimony by the custodian of the things 
        required to be produced concerning the production and 
        authenticity of those things.
  (C) A subpoena issued under subparagraph (A) with respect to 
a provider of electronic communication service or remote 
computing service, in an investigation of a Federal offense 
involving the sexual exploitation or abuse of children shall 
not extend beyond--
          (i) requiring that provider to disclose the 
        information specified in section 2703(c)(2), which may 
        be relevant to an authorized law enforcement inquiry; 
        or
          (ii) requiring a custodian of the records of that 
        provider to give testimony concerning the production 
        and authentication of such records or information.
  (D) As used in this paragraph--
          (i) the term ``Federal offense involving the sexual 
        exploitation or abuse of children'' means an offense 
        under section 1201, 1591, 2241(c), 2242, 2243, 2251, 
        2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, in which 
        the victim is an individual who has not attained the 
        age of 18 years; and
          (ii) the term ``sex offender'' means an individual 
        required to register under the Sex Offender 
        Registration and Notification Act (42 U.S.C. 16901 et 
        seq.).
  (2) A subpoena under this subsection shall describe the 
objects required to be produced and prescribe a return date 
within a reasonable period of time within which the objects can 
be assembled and made available.
  (3) The production of records relating to a Federal health 
care offense shall not be required under this section at any 
place more than 500 miles distant from the place where the 
subpoena for the production of such records is served. The 
production of things in any other case may be required from any 
place within the United States or subject to the laws or 
jurisdiction of the United States.
  (4) Witnesses subpoenaed under this section shall be paid the 
same fees and mileage that are paid witnesses in the courts of 
the United States.
  (5) At any time before the return date specified in the 
summons, the person or entity summoned may, in the United 
States district court for the district in which that person or 
entity does business or resides, petition for an order 
modifying or setting aside the summons, or a prohibition of 
disclosure [ordered by a court] under paragraph (6).
  [(6)(A) A United States district court for the district in 
which the summons is or will be served, upon application of the 
United States, may issue an ex parte order that no person or 
entity disclose to any other person or entity (other than to an 
attorney in order to obtain legal advice) the existence of such 
summons for a period of up to 90 days.
  [(B) Such order may be issued on a showing that the things 
being sought may be relevant to the investigation and there is 
reason to believe that such disclosure may result in--
          [(i) endangerment to the life or physical safety of 
        any person;
          [(ii) flight to avoid prosecution;
          [(iii) destruction of or tampering with evidence; or
          [(iv) intimidation of potential witnesses.
  [(C) An order under this paragraph may be renewed for 
additional periods of up to 90 days upon a showing that the 
circumstances described in subparagraph (B) continue to exist.]
          (6)(A)(i) If a subpoena issued under this section is 
        accompanied by a certification under clause (ii) and 
        notice of the right to judicial review under 
        subparagraph (C), no recipient of a subpoena under this 
        section shall disclose to any person that the Federal 
        official who issued the subpoena has sought or obtained 
        access to information or records under this section, 
        for a period of 180 days.
          (ii) The requirements of clause (i) shall apply if 
        the Federal official who issued the subpoena certifies 
        that the absence of a prohibition of disclosure under 
        this subsection may result in--
                  (I) endangering the life or physical safety 
                of an individual;
                  (II) flight from prosecution;
                  (III) destruction of or tampering with 
                evidence;
                  (IV) intimidation of potential witnesses; or
                  (V) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
          (B)(i) A recipient of a subpoena under this section 
        may disclose information otherwise subject to any 
        applicable nondisclosure requirement to--
                  (I) those persons to whom disclosure is 
                necessary in order to comply with the request;
                  (II) an attorney in order to obtain legal 
                advice or assistance regarding the request; or
                  (III) other persons as permitted by the 
                Federal official who issued the subpoena.
          (ii) A person to whom disclosure is made under clause 
        (i) shall be subject to the nondisclosure requirements 
        applicable to a person to whom a subpoena is issued 
        under this section in the same manner as the person to 
        whom the subpoena was issued.
          (iii) Any recipient that discloses to a person 
        described in clause (i) information otherwise subject 
        to a nondisclosure requirement shall notify the person 
        of the applicable nondisclosure requirement.
          (iv) At the request of the Federal official who 
        issued the subpoena, any person making or intending to 
        make a disclosure under subclause (I) or (III) of 
        clause (i) shall identify to the individual making the 
        request under this clause the person to whom such 
        disclosure will be made or to whom such disclosure was 
        made prior to the request.
          (C)(i) A nondisclosure requirement imposed under 
        subparagraph (A) shall be subject to judicial review 
        under section 3486A.
          (ii) A subpoena issued under this section, in 
        connection with which a nondisclosure requirement under 
        subparagraph (A) is imposed, shall include notice of 
        the availability of judicial review described in clause 
        (i).
          (D) A nondisclosure requirement imposed under 
        subparagraph (A) may be extended in accordance with 
        section 3486A(a)(4).
  (7) A summons issued under this section shall not require the 
production of anything that would be protected from production 
under the standards applicable to a subpoena duces tecum issued 
by a court of the United States.
  (8) If no case or proceeding arises from the production of 
records or other things pursuant to this section within a 
reasonable time after those records or things are produced, the 
agency to which those records or things were delivered shall, 
upon written demand made by the person producing those records 
or things, return them to that person, except where the 
production required was only of copies rather than originals.
  (9) A subpoena issued under paragraph (1)(A)(i)(II) or 
(1)(A)(iii) may require production as soon as possible, but in 
no event less than 24 hours after service of the subpoena.
  (10) As soon as practicable following the issuance of a 
subpoena under paragraph (1)(A)(iii), [the Secretary of the 
Treasury] the Secretary of Homeland Security shall notify the 
Attorney General of its issuance.
  (b) Service.--A subpoena issued under this section may be 
served by any person who is at least 18 years of age and is 
designated in the subpoena to serve it. Service upon a natural 
person may be made by personal delivery of the subpoena to him. 
Service may be made upon a domestic or foreign corporation or 
upon a partnership or other unincorporated association which is 
subject to suit under a common name, by delivering the subpoena 
to an officer, to a managing or general agent, or to any other 
agent authorized by appointment or by law to receive service of 
process. The affidavit of the person serving the subpoena 
entered on a true copy thereof by the person serving it shall 
be proof of service.
  (c) Enforcement.--In the case of contumacy by or refusal to 
obey a subpoena issued to any person, the Attorney General may 
invoke the aid of any court of the United States within the 
jurisdiction of which the investigation is carried on or of 
which the subpoenaed person is an inhabitant, or in which he 
carries on business or may be found, to compel compliance with 
the subpoena. The court may issue an order requiring the 
subpoenaed person to appear before the Attorney General to 
produce records, if so ordered, or to give testimony concerning 
the production and authentication of such records. Any failure 
to obey the order of the court may be punished by the court as 
a contempt thereof. All process in any such case may be served 
in any judicial district in which such person may be found.
  (d) Immunity From Civil Liability.--Notwithstanding any 
Federal, State, or local law, any person, including officers, 
agents, and employees, receiving a subpoena under this section, 
who complies in good faith with the subpoena and thus produces 
the materials sought, shall not be liable in any court of any 
State or the United States to any customer or other person for 
such production or for nondisclosure of that production to the 
customer.
  (e) Limitation on Use.--(1) Health information about an 
individual that is disclosed under this section may not be used 
in, or disclosed to any person for use in, any administrative, 
civil, or criminal action or investigation directed against the 
individual who is the subject of the information unless the 
action or investigation arises out of and is directly related 
to receipt of health care or payment for health care or action 
involving a fraudulent claim related to health; or if 
authorized by an appropriate order of a court of competent 
jurisdiction, granted after application showing good cause 
therefor.
  (2) In assessing good cause, the court shall weigh the public 
interest and the need for disclosure against the injury to the 
patient, to the physician-patient relationship, and to the 
treatment services.
  (3) Upon the granting of such order, the court, in 
determining the extent to which any disclosure of all or any 
part of any record is necessary, shall impose appropriate 
safeguards against unauthorized disclosure.

Sec. 3486A. Judicial review of nondisclosure requirements

  (a) Nondisclosure.--
          (1) In general.--
                  (A) Notice.--If a recipient of a subpoena 
                under section 3486 wishes to have a court 
                review a nondisclosure requirement imposed in 
                connection with the subpoena, the recipient may 
                notify the Government or file a petition for 
                judicial review in any court described in 
                subsection (a)(5) of section 3486.
                  (B) Application.--Not later than 30 days 
                after the date of receipt of a notification 
                under subparagraph (A), the Government shall 
                apply for an order prohibiting the disclosure 
                of the existence or contents of the relevant 
                subpoena. An application under this 
                subparagraph may be filed in the district court 
                of the United States for the judicial district 
                in which the recipient of the subpoena is doing 
                business or in the district court of the United 
                States for any judicial district within which 
                the authorized investigation that is the basis 
                for the subpoena is being conducted. The 
                applicable nondisclosure requirement shall 
                remain in effect during the pendency of 
                proceedings relating to the requirement.
                  (C) Consideration.--A district court of the 
                United States that receives a petition under 
                subparagraph (A) or an application under 
                subparagraph (B) should rule expeditiously, and 
                shall, subject to paragraph (3), issue a 
                nondisclosure order that includes conditions 
                appropriate to the circumstances.
          (2) Application contents.--An application for a 
        nondisclosure order or extension thereof or a response 
        to a petition filed under paragraph (1) shall include a 
        certification from the Federal official who issued the 
        subpoena indicating that the absence of a prohibition 
        of disclosure under this subsection may result in--
                  (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) Standard.--A district court of the United States 
        shall issue a nondisclosure order or extension thereof 
        under this subsection if the court determines that 
        there is reason to believe that disclosure of the 
        information subject to the nondisclosure requirement 
        during the applicable time period may result in--
                  (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.
          (4) Extension.--Upon a showing that the circumstances 
        described in subparagraphs (A) through (E) of paragraph 
        (3) continue to exist, a district court of the United 
        States may issue an ex parte order extending a 
        nondisclosure order imposed under this subsection or 
        under section 3486(a)(6)(A) for additional periods of 
        180 days, or, if the court determines that the 
        circumstances necessitate a longer period of 
        nondisclosure, for additional periods which are longer 
        than 180 days.
  (b) Closed Hearings.--In all proceedings under this section, 
subject to any right to an open hearing in a contempt 
proceeding, the court must close any hearing to the extent 
necessary to prevent an unauthorized disclosure of a request 
for records, a report, or other information made to any person 
or entity under section 3486. Petitions, filings, records, 
orders, certifications, and subpoenas must also be kept under 
seal to the extent and as long as necessary to prevent the 
unauthorized disclosure of a subpoena under section 3486.

           *       *       *       *       *       *       *


                            Dissenting Views

    H.R. 883, the ``Targeting Child Predators Act of 2017,'' 
would modify the process by which the U.S. Attorney General, 
the Director of the U.S. States Marshals Service, and the 
Secretary of Homeland Security issue administrative subpoenas 
by eliminating the need to obtain a court order, requiring 
nondisclosure of the existence of a subpoena, and extending the 
initial period of nondisclosure from 90 days to 180 days. We 
believe that the requirement that a judge approve such 
nondisclosure orders prior to their issuance is an important 
check on the potential abuse of these orders. As H.R. 883 fails 
to provide for this critical check, we respectfully dissent and 
accordingly urge our colleagues to oppose this legislation when 
it comes to the floor.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    Section 2 of the bill amends section 3486(a) of title 18 of 
the United States Code, which sets out the process by which the 
U.S. Attorney General, the Director of the U.S. Marshals 
Service, and the Secretary of Homeland Security issue 
administrative subpoenas. As amended, section 3486(a) would: 
(1) eliminate the portion of the statute requiring a federal 
official requesting the subpoena to apply to a United States 
district court for an ex parte order of nondisclosure; (2) make 
the nondisclosure requirement subject to judicial review; and 
(3) increase the current nondisclosure period from 90 days to 
180 days. A subpoena issued under this provision would impose a 
nondisclosure requirement on the recipient, without application 
to a judge, if the subpoena is accompanied by a notice of the 
right to judicial review and a certification that disclosure 
may result in endangering the life or safety of a person, 
flight from prosecution, destruction of or tampering with 
evidence, intimidation of potential witnesses, or otherwise 
seriously jeopardize an investigation or unduly delay a trial. 
Recipients of subpoenas may disclose information to persons 
necessary to comply with the subpoena, such as an attorney in 
order to obtain advice or assistance, or other persons allowed 
by the issuer of the subpoena.
    Section 3 of the bill establishes the procedure for 
obtaining judicial review of nondisclosure requirements imposed 
in administrative subpoenas under section 3486. A recipient of 
a subpoena may notify the government or file a petition for 
judicial review of a nondisclosure order in a district court 
where the person resides or business is conducted. No later 
than 30 days after the notice is received, the government must 
apply for an order prohibiting disclosure of the existence or 
contents of the subpoena. The application must include a 
certification alleging that disclosure may result in: 
endangering the life or physical safety of an individual; 
flight from prosecution; destruction of or tampering with 
evidence; and intimidation of potential witnesses; or otherwise 
seriously jeopardizing an investigation or unduly delaying a 
trial. A U.S. district court judge must issue a nondisclosure 
order or extension if he or she determines that there is reason 
to believe that disclosure will result in the occurrence of any 
of the aforementioned circumstances. Extensions may be granted 
for 180 days or longer if the circumstances require a longer 
period of nondisclosure. The proceedings must be closed to the 
extent necessary to prevent disclosure of information under 
section 3486 and all filings, records, orders, certifications, 
and the like must be kept under seal. A clerical amendment is 
made to the table of sections to correspond with the addition 
of section 3486A.

                               BACKGROUND

    As provided in section 3486, administrative subpoena 
authority is the power granted to certain federal agencies to 
compel, without judicial approval, the production of records 
(and testimony of the custodian of such records about their 
authenticity) relevant to an investigation. With the required 
showing of relevance, an administrative subpoena, which is more 
limited in scope of what may be compelled to be produced, is 
not subject to the Fourth Amendment's probable cause 
requirement.\1\ Such subpoenas give the government agencies 
authorized to use them as an investigative tool, similar to 
that used by grand juries, to investigate alleged violations of 
the law.\2\ Although agencies do not need probable cause to 
issue a subpoena, judicial review is intended to prevent 
agencies from abusing their subpoena power.\3\ In fact, an 
administrative subpoena begins an adversarial process that 
permits judicial review of the subpoena's reasonableness.\4\
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    \1\U.S. v. Powell, 379 U.S. 48, 57 (1964); see SEC v. Jerry T. 
O'Brien, Inc., 467 U.S. 735, 741-42 (1984) (holding that the standards 
set in Powell govern all administrative subpoenas).
    \2\Office of Legal Policy, U.S. Dep't of Justice, Report to 
Congress on the Use of Administrative Subpoena Authorities by Executive 
Branch Agencies and Entities 35 (2002) [hereinafter DOJ Report].
    \3\Id. at 9.
    \4\18 U.S.C. Sec. 3486(a)(5) (2017).
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    The Attorney General is given this authority with respect 
to the investigations of health care offenses and offenses 
involving the sexual exploitation or abuse of children. A 
subpoena issued by the Attorney General pursuant to section 
3486, to a provider of electronic communication service or 
remote computing service, in an investigation of a federal 
offense involving the sexual exploitation or abuse of children 
is limited by section 2703 of title 18, and the contents of the 
subpoena must not extend beyond requiring the provider to 
disclose information specified in section 2703(c)(2).\5\ The 
U.S. Marshals Service is authorized to issue administrative 
subpoenas in tracking unregistered sex offenders and the Secret 
Service is given this authority with respect to investigating 
imminent threats against those whom they protect.
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    \5\A provider of electronic communication service or remote 
computing service shall disclose to a governmental entity: name, 
address, telephone records, length and type of service used, telephone 
or instrument number or other subscriber number or identity, including 
any temporarily assigned network address, and means and source of 
payment, of a subscriber or customer when the entity uses an 
administrative subpoena authorized by a Federal statute.
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    Upon application of the United States (Attorney General, 
U.S. Marshals Service, or Secret Service), a U.S. district 
court may issue an order of nondisclosure of the existence of 
the subpoena for a period of up to 90 days if disclosure may 
result in endangerment to a person's life or safety; flight to 
avoid prosecution; destruction of or tampering with evidence; 
or intimidation of potential witnesses. The order may be 
extended for additional 90-day periods if such circumstances 
persist.\6\
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    \6\18 U.S.C. Sec. 3486(a)(6)(A) (2017).
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    In the context of protecting children from predators, H.R. 
883 seeks to strengthen the ability of law enforcement to seek 
out, locate, and prosecute online sex offenders. Law 
enforcement investigators may obtain the Internet Protocol (IP) 
address of individuals suspected of exchanging or distributing 
child pornography, enticing children, or otherwise committing 
child sexual exploitation crimes online. Law enforcement 
investigators may also subpoena Internet Service Providers 
(ISPs) for the user information attached to the IP address. 
Unless notice to customers is delayed by a nondisclosure order, 
ISPs might inform the user of the law enforcement inquiry, 
allowing the user to wipe their accounts and delete potentially 
incriminating evidence. H.R. 883 would eliminate judicial 
review prior to the issue of nondisclosure orders and require 
that recipients wait 180 days before disclosing to a user that 
their information was requested by law enforcement. This change 
would apply to all agencies authorized to issue such subpoenas 
pursuant to section 3486, i.e., the Attorney General, the U.S. 
Marshals Service, and the U.S. Secret Service.

                         CONCERN WITH H.R. 883

    H.R. 883 eliminates the requirement that officials 
requesting the subpoenas apply to a judge for a nondisclosure 
order. The requirement that a judge issue a nondisclosure order 
helps ensure that the government pursues such orders only when 
they are truly necessary. Although a recipient of such a 
subpoena may challenge the nondisclosure order in court, the 
absence of judicial oversight or review at the front end may 
lead to governmental abuse of this authority. Particularly in 
the online context, companies are doing more to give notice to 
customers as to the government's investigative requests for 
their information, so eliminating judicial oversight or prior 
judicial review harms a benefit that companies believe 
customers desire.

                               CONCLUSION

    Federal law grants certain agencies the authority to issue 
administrative subpoenas only under certain circumstances 
because of the extraordinary nature of allowing these agencies 
to compel the production of records pursuant to a standard less 
demanding than probable cause. Although well-intended, H.R. 883 
unwisely eliminates an important protection that helps prevent 
abuse of administrative subpoenas. We believe current law 
strikes the right balance by requiring a judge to approve the 
inclusion of a nondisclosure order with administrative 
subpoenas.
    Accordingly, we oppose H.R. 1039 and we urge our colleagues 
to join us in opposition.
                                   Mr. Conyers, Jr.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Johnson, Jr.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Mr. Jeffries.

                                  [all]