H.R. 6339 (112th): Electronic Communications Privacy Act Modernization Act of 2012

112th Congress, 2011–2013. Text as of Aug 02, 2012 (Introduced).

Status & Summary | PDF | Source: GPO

I

112th CONGRESS

2d Session

H. R. 6339

IN THE HOUSE OF REPRESENTATIVES

August 2, 2012

(for himself and Mr. Conyers) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, regarding access to stored communications and customer records, and for other purposes.

1.

Short title

This Act may be cited as the Electronic Communications Privacy Act Modernization Act of 2012.

2.

Requirement for warrant for access to contents; notice rules

(a)

Standard for Access to Stored Communications

(1)

In general

Section 2703(a) of title 18, United States Code, is amended to read as follows:

(a)

Contents of Wire or Electronic Communications

(1)

A governmental entity may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that is stored, held or maintained by that service only pursuant to—

(A)

a warrant complying with the Federal Rules of Criminal Procedure and issued by a court with jurisdiction over the offense under investigation or equivalent State warrant; or

(B)

a court under title I or title VII of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq. and 1881 et seq.).

(2)

Unless delayed notice is ordered under section 2705, not later than three days after a governmental entity receives contents of a communication under this subsection, the governmental entity shall notify the subscriber or customer concerned of the matters required in notices under, and by the means described in, paragraphs (4) and (5) of section 2705(a).

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(2)

Conforming amendment

Section 2703 of title 18, United States Code, is amended by striking subsection (b).

(b)

Prohibition on disclosure of customer communications or records

Section 2702(a)(3) of title 18, United States Code, is amended to read as follows:

(3)

a provider of remote computing service or electronic communication service to the public shall not knowingly divulge to any governmental entity the contents of any communication described in section 2703(a) or any record or other information pertaining to a subscriber to or customer of such service.

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(c)

Delayed notice

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

2705.

Delayed notice

(a)

Delay of notification

(1)

A governmental entity acting under section 2703(a) may, when a warrant is sought, include in the application a request for an order delaying the notification required under section 2703(a) for a period not to exceed 90 days, and the court shall issue the order if the court determines that there is reason to believe that notification of the existence of the warrant may have an adverse result.

(2)

In paragraph (1) the term adverse result means—

(A)

endangering the life or physical safety of an individual;

(B)

flight from prosecution;

(C)

destruction of or tampering with evidence;

(D)

intimidation of potential witnesses; or

(E)

otherwise seriously jeopardizing an investigation or unduly delaying a trial.

(3)

The court may, upon application, grant an extension of an order issued under paragraph (1), or of a previous extension of such an order, for up to an additional 90 days.

(4)

Upon expiration of the period of delay granted under this subsection, the governmental entity shall provide the customer or subscriber a copy of warrant together with notice that—

(A)

states with reasonable specificity the nature of the law enforcement inquiry; and

(B)

informs such customer or subscriber—

(i)

that information maintained for such customer or subscriber by the service provider named in such process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;

(ii)

that notification of such customer or subscriber was delayed;

(iii)

what court made the determination pursuant to which that delay was made; and

(iv)

which provision of this chapter allowed such delay.

(5)

The method of providing matter required to be provided under paragraph (4) may be by service upon the person to whom the matter is to be provided, or delivery by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the warrant.

(b)

Preclusion of notice to subject of governmental access

A governmental entity acting under section 2703, to the extent that it may delay notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant is directed not to notify any other person of the existence of the warrant. The court shall enter such an order, or an extension of such an order (or earlier extension), for a period up to 90 days, if the court determines there is reason to believe that notification of the existence of the warrant will result in an adverse result as that term is defined in subsection (a)(2).

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3.

Reporting requirements

(a)

In general

Chapter 121 of title 18, United States Code, is amended by adding at the end the following:

2713.

Reporting requirements

(a)

General rulemaking authority for reports under this section

The Director of the Administrative Office of the United States Courts may make rules regarding the content and form of the reports required under this section and reports required under section 3126.

(b)

Reports concerning disclosures

(1)

To Administrative Office

Not later than 30 days after the issuance or denial of an order or warrant compelling the disclosure of the contents of any wire or electronic communication or records or information under this chapter the issuing or denying judge shall report to the Administrative Office of the United States Courts—

(A)

the fact that an order was applied for;

(B)

the type of order applied for;

(C)

whether the order was granted as applied for, was modified, or was denied;

(D)

whether the court also granted delayed notice and the number of times such delay was granted;

(E)

the identity, including district where applicable, of the applying investigative or law enforcement agency making the application and the person authorizing the application; and

(F)

the type of information or records sought in the order.

(2)

To Congress

In April of each year the Director of the Administrative Office of the United States Courts shall report to Congress with respect to the preceding calendar year—

(A)

the overall total number of each of the events described in the subparagraphs of paragraph (1), regarding applications reported to that Office; and

(B)

a summary and analysis of the data described in paragraph (1).

(c)

Reports concerning emergency disclosures

(1)

To Administrative Office

In January of each year, the Attorney General, the Secretary of the Department of Homeland Security, the principal prosecuting attorney of a State, and the principal prosecuting attorney for any political subdivision of a State shall report to the Administrative Office of the United States Courts—

(A)

the number of accounts from which voluntary disclosures were made under sections (b)(8), (c)(4), or (e) of section 2702; and

(B)

a summary of the basis for disclosure in those instances where—

(i)

voluntary disclosures under section 2702(b)(8) were made; and

(ii)

the investigation pertaining to those disclosures was closed without the filing of criminal charges.

(2)

To Congress

In April of each year the Director of the Administrative Office of the United States Courts shall report to Congress with respect to the preceding calendar year—

(A)

the number of voluntary disclosures described in paragraph (1) that were made during the preceding calendar year; and

(B)

a summary and analysis of the information required to be reported by paragraph (1).

(d)

Provider reporting requirements

(1)

To Administrative Office

Except as provided in paragraph (2), in January of each year each provider of electronic communication service or remote computing services shall report with respect to the preceding calendar year to the Administrative Office of the United States Courts—

(A)

the number of legal demands received from Federal law enforcement agencies during the preceding calendar year for records concerning electronic communication service or remote computing service;

(B)

the number of legal demands received from Federal law enforcement agencies during the preceding calendar year for the contents of wire or electronic communications in an electronic communications service or a remote computing service;

(C)

the number of legal demands received from State and local law enforcement agencies during the preceding calendar year for records concerning electronic communication service or remote computing service;

(D)

the number of legal demands received from State and local law enforcement agencies during the preceding calendar year for the contents of wire or electronic communications in an electronic communications service or a remote computing service; and

(E)

the number of accounts about which information, including subscriber or customer information, was disclosed, specifying the numbers disclosed pursuant to legal demand and the numbers disclosed voluntarily, to Federal, State, or local law enforcement agencies.

(2)

Exceptions

The requirement of paragraph (1) does not apply to a provider of electronic communication services or remote computing services that, during the reporting period—

(A)

received less than 50 requests combined from law enforcement agencies;

(B)

disclosed account information concerning less than 100 subscribers or customers; or

(C)

had less than 100,000 total customers or subscribers at the end of the calendar year.

(3)

Compensation

The Director of the Administrative Office of the United States Court may provide reasonable compensation to a provider for the costs of compiling a report required under this subsection.

(4)

Confidentiality of identity of service providers

The Director of the Administrative Office of the United States Courts shall establish procedures to prevent the release to the public of the identity of service providers with respect to disclosures they make under this subsection.

(5)

To Congress

In April of each year, the Director of the Administrative Office of the United States Courts shall report to Congress with respect to the preceding calendar year—

(A)

the total numbers of legal demands and of disclosures required to be reported under paragraph (1); and

(B)

a summary and analysis of the information required to be reported by paragraph (1), but without disclosing the identity of any service provider with respect to the disclosures to law enforcement that service provider made.

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(b)

Clerical amendment

The table of sections at the beginning of chapter 121 of title 18, United States Code, is amended by adding at the end the following new item:

2713. Reporting requirements.

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(c)

Conforming amendment

Section 2702 of title 18, United States Code, is amended by striking subsection (d).

4.

Report regarding mobile tracking devices

Not later than two years after the date of the enactment of this subsection, the Attorney General shall complete a study to determine trends relating to the frequency and effectiveness of the use of mobile tracking devices under section 3117 and report the results of that study to Congress.

5.

Reports concerning pen registers and trap and trace devices

Section 3126 of title 18 is amended to read as follows:

3126.

Reports concerning pen registers and trap and trace devices

(a)

To Administrative office

Not later than 30 days after the expiration of an order (or each extension thereof) entered under section 3123, or the denial of an order for a pen register or trap and trace device, the issuing or denying judge shall report to the Administrative Office of the United States Courts—

(1)

the fact that an order or extension was applied for;

(2)

whether the order or extension was granted as applied for, was modified, or was denied;

(3)

the period of interceptions authorized by the order, and the number and duration of any extensions of the order;

(4)

the offense specified in the order or application, or extension of an order;

(5)

the number and nature of the facilities affected; and

(6)

the identity, including district, of the applying investigative or law enforcement agency making the application and the person authorizing the order.

(b)

To Congress

In April of each year the Director of the Administrative Office of the United States Courts shall report to Congress with respect to the preceding calendar year—

(1)

the number of applications for pen register orders and orders for trap and trace devices; and

(2)

a summary and analysis of the information required to be reported by subsection (a).

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6.

Transition provision related to reporting requirements under amendments made by this Act

(a)

For reports to the Administrative Office

Any requirement to report to the Administrative Office of the United States Courts contained in an amendment made by this Act shall not take effect until the beginning of the first January that begins one year or later after the date of the enactment of this Act.

(b)

For reports to Congress

Any requirement for a report to Congress contained in an amendment made by this Act shall not take effect until reports have been required to be made under that amendment to the Administrative Office of the United States Courts pursuant to subsection (a) for an entire calendar year.

7.

Making suppression remedies the same for intercepted wire, oral, and electronic communications

(a)

Section 2518 amendments

Section 2518(10) of title 18, United States Code, is amended—

(1)

in paragraph (a), by striking wire and inserting electronic, wire,; and

(2)

by striking paragraph (c).

(b)

Section 2515 amendment

Section 2515 of title 18, United States Code, is amended by striking wire and inserting electronic, wire,.