< Back to H.R. 5018 (106th Congress, 1999–2000)

Text of the Electronic Communications Privacy Act of 2000

This bill was introduced on September 26, 2000, in a previous session of Congress, but was not enacted. The text of the bill below is as of Oct 4, 2000 (Reported by House Committee).

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HR 5018 RH

Union Calendar No. 562

106th CONGRESS

2d Session

H. R. 5018

[Report No. 106-932]

To amend title 18, United States Code, to modify certain provisions of law relating to the interception of communications, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

July 27, 2000

Mr. CANADY of Florida (for himself and Mr. HUTCHINSON) introduced the following bill; which was referred to the Committee on the Judiciary

October 4, 2000

Additional sponsors: Mr. BLUNT, Mr. BACHUS, Mr. PAUL, and Mr. Wamp

October 4, 2000

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on July 27, 2000]


A BILL

To amend title 18, United States Code, to modify certain provisions of law relating to the interception of communications, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Electronic Communications Privacy Act of 2000’.

SEC. 2. USE AS EVIDENCE.

    (a) IN GENERAL- Section 2515 of title 18, United States Code, is amended--

      (1) by striking ‘wire or oral’ in the heading and inserting ‘wire, oral, or electronic’.

      (2) by striking ‘Whenever any wire or oral communication has been intercepted’ and inserting ‘(a) Except as provided in subsection (b), whenever any wire, oral, or electronic communication has been intercepted, or any electronic communication in electronic storage has been disclosed’;

      (3) by inserting ‘or chapter 121’ after ‘this chapter’; and

      (4) by adding at the end the following:

    ‘(b) Subsection (a) does not apply to the disclosure, before a grand jury or in a criminal trial, hearing, or other criminal proceeding, of the contents of a communication, or evidence derived therefrom, against a person alleged to have intercepted, used, or disclosed the communication in violation of this chapter, or chapter 121, or participated in such violation.’.

    (b) SECTION 2517- Paragraphs (1) and (2) of section 2517 are each amended by inserting ‘or under the circumstances described in section 2515(b)’ after ‘by this chapter’.

    (c) SECTION 2518- Section 2518 of title 18, United States Code, is amended--

      (1) in subsection (7), by striking ‘subsection (d)’ and inserting ‘subsection (8)(d)’; and

      (2) in subsection (10)--

        (A) in paragraph (a)--

          (i) by striking ‘or oral’ each place it appears and inserting ‘, oral, or electronic’;

          (ii) by striking the period at the end of clause (iii) and inserting a semicolon; and

          (iii) by inserting ‘except that no supresssion may be ordered under the circumstances described in section 2515(b).’ before ‘Such motion’; and

        (B) by striking paragraph (c).

    (d) CLERICAL AMENDMENT- The item relating to section 2515 in the table of sections at the beginning of chapter 119 of title 18, United States Code, is amended to read as follows:

      ‘2515. Prohibition of use as evidence of intercepted wire, oral, or electronic communications.’.

SEC. 3. REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS OF ELECTRONIC COMMUNICATIONS.

    Section 2703 of title 18, United States Code, is amended by adding at the end the following:

    ‘(g) REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS OF ELECTRONIC COMMUNICATIONS-

      ‘(1) By January 31 of each calendar year, the judge issuing or denying an order, warrant, or subpoena, or the authority issuing or denying a subpoena, under subsection (a) or (b) of this section during the preceding calendar year shall report on each such order, warrant, or subpoena to the Administrative Office of the United States Courts--

        ‘(A) the fact that the order, warrant, or subpoena was applied for;

        ‘(B) the kind of order, warrant, or subpoena applied for;

        ‘(C) the fact that the order, warrant, or subpoena was granted as applied for, was modified, or was denied;

        ‘(D) the offense specified in the order, warrant, subpoena, or application;

        ‘(E) the identity of the agency making the application; and

        ‘(F) the nature of the facilities from which or the place where the contents of electronic communications were to be disclosed.

      ‘(2) In January of each year the Attorney General or an Assistant Attorney General specially designated by the Attorney General shall report to the Administrative Office of the United States Courts--

        ‘(A) the information required by subparagraphs (A) through (F) of paragraph (1) of this subsection with respect to each application for an order, warrant, or subpoena made during the preceding calendar year; and

        ‘(B) a general description of the disclosures made under each such order, warrant, or subpoena, including--

          ‘(i) the approximate number of all communications disclosed and, of those, the approximate number of incriminating communications disclosed;

          ‘(ii) the approximate number of other communications disclosed; and

          ‘(iii) the approximate number of persons whose communications were disclosed.

      ‘(3) In June of each year, beginning in 2002, the Director of the Administrative Office of the United States Courts shall transmit to the Congress a full and complete report concerning the number of applications for orders, warrants, or subpoenas authorizing or requiring the disclosure of the contents of electronic communications pursuant to subsections (a) and (b) of this section and the number of orders, warrants, or subpoenas granted or denied pursuant to subsections (a) and (b) of this section during the preceding calendar year. Such report shall include a summary and analysis of the data required to be filed with the Administrative Office by paragraphs (1) and (2) of this subsection. The Director of the Administrative Office of the United States Courts is authorized to issue binding regulations dealing with the content and form of the reports required to be filed by paragraphs (1) and (2) of this subsection.’.

SEC. 4. PEN REGISTERS AND TRAP AND TRACE DEVICES.

    (a) REQUIREMENT FOR SHOWING- Section 3122(b)(2) of title 18, United States Code, is amended to read as follows:

      ‘(2) a statement of facts showing that the requirements of section 3123 have been met.’.

    (b) FINDING BY COURT- Subsection (a) of section 3123 of title 18, United States Code, is amended by striking ‘the attorney for the Government’ and all that follows through the end of such subsection and inserting ‘specific and articulable facts reasonably indicate that a crime has been, is being, or will be committed, and information likely to be obtained by such installation and use is relevant to the investigation of that crime.’.

SEC. 5. CIVIL DAMAGES.

    Section 2520(c)(2) of title 18, United States Code, is amended--

      (1) by striking ‘court may’ and inserting ‘court shall’;

      (2) by striking ‘greater’ and inserting ‘greatest’;

      (3) in subparagraph (A), by striking ‘or’ after the semicolon;

      (4) in subparagraph (B), by striking ‘whichever is the greater of $100 a day for each day of violation or $10,000.’ and inserting ‘$500 a day for each violation; or’; and

      (5) by inserting after subparagraph (B), the following:

      ‘(C) statutory damages of $10,000.’.

SEC. 6. NOTIFICATION.

    Section 2705(a)(4) of title 18, United States Code, is amended by striking ‘or by certification by a governmental entity, but only in accordance with subsection (b) of this section.’ and inserting ‘if the court determines that there is reason to believe that notification of the existence of the court order or subpoena may have an adverse result described in paragraph (2) of this subsection.’.

SEC. 7. GOVERNMENT ACCESS TO LOCATION INFORMATION.

    (a) COURT ORDER REQUIRED- Section 2703 of title 18, United States Code, as amended by section 3 of this Act, is further amended by adding at the end the following:

    ‘(h) DISCLOSURE OF LOCATION INFORMATION TO GOVERNMENTAL ENTITIES-

      ‘(1) DISCLOSURE UPON COURT ORDER- Except as provided in paragraph (2), a provider of mobile electronic communication service shall provide to a governmental entity information generated by and disclosing the current physical location of a subscriber’s equipment only if the governmental entity obtains a court order issued upon a finding that there is probable cause to believe that--

        ‘(A) a person is committing, has committed, or is about to commit a felony offense; and

        ‘(B) the location information sought to be obtained concerns the location of the person believed to have committed, be committing, or be

about to commit that offense or a victim of that offense.

      ‘(2) PERMITTED DISCLOSURES WITHOUT COURT ORDER- A provider of mobile electronic communication service may provide information described in paragraph (1)--

        ‘(A) 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) 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) with the express consent of the subscriber or the user of the equipment concerned.

      ‘(3) DEFINITION- The term ‘public safety answering point’ means a facility that has been designated to receive emergency calls and route them to emergency service personnel.’.

    (b) CONFORMING AMENDMENT- Subsection (c)(1)(A) of section 2703 of title 18, United States Code, is amended by striking ‘(b) of this section’ and inserting ‘(b), or wireless location information covered by subsection (g)’.

SEC. 8. COMPUTER CRIME AMENDMENTS.

    (a) GENERALLY- Section 1030 of title 18, United States Code, is amended--

      (1) in subsection (a)(3), by striking ‘such a computer’ and inserting ‘without or in excess of authorization a computer’;

      (2) in subsection (a)(5), by inserting after subparagraph (C) the following:

      ‘(B) whose conduct described in clause (i), (ii), or (iii) of subparagraph (A)--

        ‘(i) caused loss to one or more persons during any one-year period (including loss resulting from a related course of conduct affecting one or more other protected computers) aggregating at least $5,000;

        ‘(ii) modified or impaired, or potentially modified or impaired, the medical examination, diagnosis, treatment, or care of one or more individuals;

        ‘(iii) caused physical injury to any individual;

        ‘(iv) threatened public health or safety;

        ‘(v) caused damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security; or

        ‘(vi) intentionally defaced, damaged, or destroyed images or information made available to the public and thereby interfered with the rights protected under the First Amendment to the Constitution;’.

      (3) in subsection (a)(5)(A), by inserting ‘(i)’ after ‘(5)(A)’;

      (4) in subsection (a)(5)(B), by striking ‘(B)’ and inserting ‘(ii)’;

      (5) in subsection (a)(5)(C)--

        (A) by striking ‘(C)’ and inserting ‘(iii)’; and

        (B) by inserting ‘and’ after the semicolon;

      (6) in subsection (a)(7), by striking ‘, firm, association, educational institution, financial institution, government entity, or other legal entity,’;

      (7) in subsection (b), by adding before the period ‘as if such person had committed the completed offense’;

      (8) in subsection (c)(1)(A) and (B), by striking ‘, or an attempt to commit an offense punishable under this subparagraph’;

      (9) in subsection (c)(1)(A), by inserting ‘, (a)(5)(A)(i), or (a)(5)(A)(ii)’ after ‘(a)(1)’;

      (10) by amending subsection (c)(2)(A) to read as follows:

      ‘(2)(A) except as provided in subsection (c)(2)(B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does not occur after a conviction for another offense under this section;’;

      (11) by striking subparagraph (C) of subsection (c)(2);

      (12) in subsection (c)(3)--

        (A) by striking ‘(3)(A)’ and inserting ‘(3)’;

        (B) by striking ‘, (a)(5)(A), (a)(5)(B),’;

        (C) by striking ‘, or an attempt to commit an offense punishable under this subparagraph; and’ and inserting ‘; and’; and

        (D) by striking subparagraph (B) and inserting:

      ‘(4) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), or (a)(7) of this section which occurs after a conviction for another offense under this section.’;

      (13) in subsection (d)--

        (A) by striking ‘subsections (a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and (a)(6) of’; and

        (B) by striking ‘which shall be entered into by’ and inserting ‘between’;

      (14) in subsection (e)(7), by striking ‘and’ after the semicolon;

      (15) in subsection (e)(8), by striking all after ‘information’ and inserting a semicolon;

      (16) in subsection (e)(9), by striking the period at the end and inserting a semicolon;

      (17) by inserting the following after subsection (e)(9):

      ‘(10) the term ‘conviction for another offense under this section’ includes a State conviction for a crime punishable by imprisonment for more than 1 year, an element of which is unauthorized access, or exceeding authorized access, to a computer;

      ‘(11) the term ‘loss’ means any reasonable cost to any victim, including responding to the offense, conducting a damage assessment, restoring any data, program, system, or information to its condition before the offense, and any revenue lost or costs incurred because of interruption of service; and

      ‘(12) the term ‘person’ includes any individual, firm, association, educational institution, financial institution, corporation, company, partnership, government entity, or other legal entity.’;

      (18) by amending subsection (g) to read as follows:

    ‘(g) Except as herein provided, any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive or other equitable relief. A suit for a violation of subsection (a)(5) may be brought only if the conduct involves one or more of the factors enumerated in subsection (a)(5)(B). No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage.’; and

      (19) by adding the following subsection after subsection (h):

    ‘(i)(1) The court, in imposing sentence on any person convicted of a violation of this section, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person forfeit to the United States--

      ‘(A) such person’s interest in any personal property that was used or intended to be used to commit or to facilitate the commission of such violation; and

      ‘(B) any property, real or personal, constituting or derived from, any proceeds that such person obtained, directly or indirectly, as a result of such violation.

    ‘(2) The criminal forfeiture of property under this subsection, any seizure and disposition thereof, and any administrative or judicial proceeding in relation thereto, shall be governed by the provisions of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), except subsection (d) of that section.’.

    (b) SENTENCING COMMISSION- Section 805(c) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 28 U.S.C. 994 note) is amended by striking ‘shall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph (4) or (5)’ and inserting ‘shall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph (4) or a felony violation of paragraph (5)(A)(i) (but not of paragraph (5)(A)(ii) or (5)(A)(iii))’.

SEC. 9. INTERCEPTION OF WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS AMENDMENTS.

    Chapter 119 of title 18, United States Code, is amended--

      (1) in section 2510(10), by striking ‘153(h)’ and inserting ‘153(10)’;

      (2) in section 2516(1), by striking ‘wire or oral’ and inserting ‘wire, oral, or electronic’;

      (3) in the first paragraph (p) of section 2516(1), by inserting ‘section 1030 (relating to computer fraud and abuse), section 1362 (relating to destruction of government communications facilities),’ after ‘identification documents),’; and

      (4) in section 2516(1), by redesignating the second paragraph (p) as paragraph (q).

SEC. 10. AMENDMENTS TO THE ELECTRONIC COMMUNICATIONS PRIVACY ACT.

    (a) PENALTIES FOR UNLAWFUL ACCESS TO STORED COMMUNICATIONS- Section 2701 of title 18, United States Code, is amended--

      (1) in subsection (b)(1)--

        (A) by striking ‘purposes of’ and inserting ‘a tortious or illegal purpose,’;

        (B) in subparagraph (A), by striking ‘one year’ and inserting ‘three years’; and

        (C) in subparagraph (B), by striking ‘two’ and inserting ‘five’; and

      (2) by amending subsection (b)(2) to read as follows:

      ‘(2) in any other case--

        ‘(A) a fine under this title or imprisonment for not more than one year, or both, in the case of a first offense under this subparagraph; and

        ‘(B) a fine under this title or imprisonment for not more than five years, or both, for any subsequent offense under this subparagraph.’.

    (b) VOLUNTARY DISCLOSURE OF CUSTOMER COMMUNICATIONS OR RECORDS- Section 2702 of title 18, United States Code, is amended--

      (1) by amending the catchline to read as follows:

‘Sec. 2702. Voluntary disclosure of customer communications or records’;

      (2) in subsection (a)(1)--

        (A) by striking ‘person or entity providing an’ and inserting ‘provider of’; and

        (B) by striking ‘and’ at the end;

      (3) in subsection (a)(2)--

        (A) by striking ‘person or entity providing’ and inserting ‘provider of’; and

        (B) by striking the period at the end and inserting ‘; and’;

      (4) in subsection (a), by adding the following paragraph after paragraph (2):

      ‘(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge 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) of this subsection) to any governmental entity.’;

      (5) in the heading of subsection (b) by inserting ‘FOR DISCLOSURE OF COMMUNICATIONS’ after ‘EXCEPTIONS’;

      (6) in subsection (b), by striking ‘person or entity’ and inserting ‘provider described in subsection (a)’; and

      (7) by adding the following subsection after subsection (b):

    ‘(c) EXCEPTIONS FOR DISCLOSURE OF CUSTOMER RECORDS- A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2) of this section)--

      ‘(1) as otherwise authorized in section 2703 of this title;

      ‘(2) with the lawful consent of the customer or subscriber;

      ‘(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 reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or

      ‘(5) to any person other than a governmental entity where not otherwise prohibited by law.’.

    (c) CONFORMING AMENDMENTS- Section 2703 of title 18, United States Code, as amended by section 7 of this Act, is futher amended--

      (1) in subsection (c) by--

        (A) redesignating paragraph (2) as paragraph (3); and

        (B) redesignating subparagraph (C) of paragraph (1) as paragraph (2);

      (2) in subsection (c)(1) by--

        (A) striking ‘(A) Except as provided in subparagraph (B),’ and inserting ‘A governmental entity may require’;

        (B) striking ‘may disclose’ and inserting ‘to disclose’; and

        (C) striking ‘to any person other than a governmental entity.’;

        (D) striking ‘(B) A provider of’ through ‘to a governmental entity’;

        (E) redesignating subclauses (i) through (iv) as subparagraphs (A) through (D);

        (F) striking ‘or’ at the end of subparagraph (C) as redesignated;

        (G) striking the period at the end of subparagraph (D) as redesignated and inserting ‘; or’; and

        (H) adding the following subparagraph after subparagraph (D) as redesignated:

      ‘(E) seeks information pursuant to paragraph (2).’; and

      (3) in subsection (c)(2) as redesignated by--

        (A) striking ‘an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena’ and inserting ‘a Federal or State grand jury or

trial subpoena, or a subpoena or equivalent process authorized by a Federal or State statute,’; and

        (B) striking ‘subparagraph (B).’ and inserting ‘paragraph (1).’.

    (d) CIVIL DAMAGES- Section 2707(c) of title 18, United States Code, is amended by striking ‘$1,000’ and inserting ‘$5,000’.

    (e) CLERICAL AMENDMENT- The item relating to section 2702 in the table of sections at the beginnning of chapter 121 of title 18, United States Code, is amended to read as follows:

      ‘2702. Voluntary disclosure of customer communications or records.’.

SEC. 11. ADDITIONAL PROVISIONS RELATING TO PEN REGISTERS.

    (a) EMERGENCY PROVISIONS- Section 3125 of title 18, United States Code, is amended--

      (1) in subsection (a)(1)--

        (A) in subparagraph (A), by striking ‘or’ after the semicolon;

        (B) in subparagraph (B), by striking the comma after ‘crime’ and inserting a semicolon; and

        (C) by inserting after subparagraph (B), the following:

        ‘(C) an immediate threat to a national security interest; or

        ‘(D) an ongoing attack on the integrity or availability of a protected computer in violation of section 1030(a)(5)(A)(i) or 1030(a)(5)(A)(ii) of this title,’;

      (2) at the end of the matter following subsection (a)(2), by inserting the following: ‘In the event an application for such order is denied, or in any other case where the installation and use of a pen register or trap and trace device is terminated without an order having been issued, any information obtained by such installation and use shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (b) of this section on the person named in the application.’;

      (3) by inserting the following after subsection (a):

    ‘(b) Within a reasonable time but not later than 90 days after the filing of an application for an order of approval under subsection (a)(2) of this section which is denied, the denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to the information obtained by such installation and use of a pen register or trap and trace device as the judge may determine in his discretion is in the interest of justice, an inventory which shall include notice of--

      ‘(1) the fact of the entry of the application;

      ‘(2) the date of the entry and the date of the denial of the application; and

      ‘(3) the fact that during the period covered by the application, information was obtained by the installation and use of a pen register or trap and trace device.

    The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the applications as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.’; and

      (4) by redesignating subsections (b) through (d) as subsections (c) through (e), respectively.

    (b) DEFINITIONS- Section 3127 of title 18, United States Code, is amended--

      (1) in paragraph (6), by striking the period and inserting ‘; and’; and

      (2) by adding the following paragraph after paragraph (6):

      ‘(7) the term ‘protected computer’ has the meaning set forth in section 1030 of this title.’.

SEC. 12. GOVERNMENT ACCESS TO CONTENTS OF STORED ELECTRONIC COMMUNICATIONS.

    Section 2703(a) of title 18, United States Code, is amended by striking ‘one hundred and eighty days’ each place it appears and inserting ‘one year’.

SEC. 13. ENHANCED PRIVACY PROTECTION FOR INFORMATION ON COMPUTER NETWORKS.

    Section 2510(17) of title 18, United States Code, is amended--

      (1) by striking ‘and’ at the end of subparagraph (A); and

      (2) by inserting at the end the following:

        ‘(C) any storage of an electronic communication by an electronic communication service without regard to whether the communication has been accessed by the intended recipient; and’.

Calendar No. 562

106th CONGRESS

2d Session

H. R. 5018

[Report No. 106-932]

A BILL

To amend title 18, United States Code, to modify certain provisions of law relating to the interception of communications, and for other purposes.


October 4, 2000

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed