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H.R. 6529 (112th): ECPA 2.0 Act of 2012

The text of the bill below is as of Sep 21, 2012 (Introduced).


I

112th CONGRESS

2d Session

H. R. 6529

IN THE HOUSE OF REPRESENTATIVES

September 21, 2012

introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend title 18, United States Code, with respect to disclosures to governments by communications-related service providers of certain information consisting of or relating to communications, and for other purposes.

1.

Short title

This Act may be cited as the ECPA 2.0 Act of 2012.

2.

Warrant required for contents of communications

(a)

Compelled disclosure of communication contents

(1)

In general

Section 2703 of title 18, United States Code, is amended—

(A)

in subsection (a)—

(i)

by striking in Electronic Storage in the subsection header;

(ii)

by inserting or remote computing service in the first sentence after electronic communication service;

(iii)

by striking that is in electronic storage in an electronic communications system for one hundred and eighty days or less, and inserting that is stored, held, or maintained by that service,; and

(iv)

by striking the final sentence and inserting Within three days after a governmental entity receives such contents from a service provider pursuant to this subsection, the governmental entity shall serve upon, or deliver by registered or first-class mail, or other means reasonably calculated to be effective as specified by the court issuing the warrant to the subscriber, customer, or user a copy of the warrant and a notice that includes the information referenced in section 2705(a)(4)(A) and (B)(i), except that delayed notice may be provided pursuant to section 2705 of this title.; and

(B)

by striking subsection (b).

(2)

Conforming amendment

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

(b)

Voluntary disclosure of communication contents

(1)

In general

Section 2702(a)(3) of title 18, United States Code, is amended—

(A)

by inserting to any governmental entity the contents of communication covered by subsection (a) of section 2703 or any after divulge;

(B)

by inserting or user after customer; and

(C)

by striking (not including the contents of communications covered by paragraph (1) or (2)).

(2)

Conforming amendments

Section 2705 of title 18, United States Code, is amended—

(A)

in subsection (a)(1)—

(i)

in the subsection heading, by striking 2703(b) and inserting 2703(a);

(ii)

in subparagraph (A), by striking court order each place it appears and inserting warrant;

(iii)

in subparagraph (A), by striking 2703(b) and inserting 2703(a); and

(iv)

by striking subparagraph (B);

(B)

by striking subsection (a)(3);

(C)

in subsection (a)(4), by striking or by certification by a governmental entity, but only in accordance with subsection (b) of this section.;

(D)

in subsection (a)(5)—

(i)

by inserting after first-class mail, the following: or other means reasonably calculated to be effective as specified by the court issuing the warrant;

(ii)

by striking the process or request and replacing it with warrant; and

(iii)

in subsection (5)(A)(iii), by striking governmental entity or and certification or;

(E)

by striking subsection (a)(6); and

(F)

in subsection (b)—

(i)

by striking when it is not required to notify the subscriber or customer under section 2703(b)(1), or; and

(ii)

by striking subpoena or court order each place it appears.

3.

Geolocation information protection

(a)

Protection of geolocation information

(1)

In general

Part 1 of title 18, United States Code, is amended by inserting after chapter 119 the following:

120

Geolocation information

Sec.

2601. Definitions.

2602. Interception and disclosure of geolocation information.

2603. Prohibition of use as evidence of acquired geolocation information.

2604. Emergency situation exception.

2605. Recovery of civil damages authorized.

2601.

Definitions

In this chapter:

(1)

Electronic communication service

The term electronic communication service has the meaning given that term in section 2510.

(2)

Electronic surveillance

The term electronic surveillance has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

(3)

Geolocation information

The term geolocation information means, with respect to an individual, any information that is not the content of a communication, concerning the location of a wireless communication device or tracking device (as that term is defined section 3117) that, in whole or in part, is generated by or derived from the operation of that device and that could be used to determine or infer information regarding the present, prospective, or historical location of the individual.

(4)

Geolocation information service

The term geolocation information service means the provision of a global positioning service or other mapping, locational, or directional information service to the public, or to such class of users as to be effectively available to the public, by or through the operation of any wireless communication device.

(5)

Governmental entity

The term governmental entity means any employee or agent of the United States, or any State or political subdivision thereof.

(6)

Intercept

The term intercept means the acquisition of geolocation information through the use of any electronic, mechanical, or other device.

(7)

Investigative or law enforcement officer

The term investigative or law enforcement officer means any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.

(8)

Remote computing service

The term remote computing service has the meaning given that term in section 2711.

(9)

State

The term State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

(10)

Wireless communication device

The term wireless communication device means any device that enables access to, or use of, an electronic communication system or service, remote computing service, or geolocation information service, if that device utilizes a radio or other wireless connection to access such system or service, including any mobile telephone, global positioning system receiving device, mobile computer, or other similar or successor device.

(11)

Covered service

The term covered services means electronic communication service, remote computing service, or of geolocation information service.

2602.

Interception and disclosure of geolocation information

(a)

In general

Except as otherwise specifically provided in this chapter, it shall be unlawful for any governmental entity to—

(1)

intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, geolocation information pertaining to an individual;

(2)

intentionally disclose, or endeavor to disclose, to any person geolocation information pertaining to an individual, knowing or having reason to know that the information was obtained through the interception of such information in violation of this subsection;

(3)

intentionally use, or endeavor to use, any geolocation information, knowing or having reason to know that the information was obtained through the interception of such information in violation of this subsection; or

(4)
(A)

intentionally disclose, or endeavor to disclose, to any person the geolocation information pertaining to an individual intercepted by means authorized by subsections (b) through (f), except as provided in such subsections;

(B)

knowing or having reason to know that the information was obtained through the interception of such information in connection with a criminal investigation;

(C)

having obtained or received the information in connection with a criminal investigation; and

(D)

with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.

(b)

Exception for conducting foreign intelligence surveillance

Notwithstanding any other provision of this chapter, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of the official duty of the officer, employee, or agent to conduct electronic surveillance, as authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

(c)

Exception for consent

(1)

In general

It shall not be unlawful under this chapter to intercept geolocation information pertaining to an individual if such individual has given prior consent to such interception unless such information is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

(2)

Children

The exception in paragraph (1) permits a parent or legal guardian of a child to give consent to intercept geolocation information.

(d)

Exception for public information

It shall not be unlawful under this chapter to intercept or access geolocation information relating to an individual through any system that is configured so that such information is readily accessible to the general public.

(e)

Exception for emergency information

It shall not be unlawful under this chapter for any investigative or law enforcement officer or other emergency responder to intercept or access geolocation information relating to an individual if such information is used—

(1)

to respond to a request made by such individual for assistance; or

(2)

in circumstances in which it is reasonable to believe that the life or safety of the individual is threatened, to assist the individual.

(f)

Exception for warrant

(1)

Definitions

In this subsection:

(A)

Court of competent jurisdiction

The term court of competent jurisdiction includes—

(i)

any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that—

(I)

has jurisdiction over the offense being investigated;

(II)

is in or for a district in which the provider of a geolocation information service is located or in which the geolocation information is stored; or

(III)

is acting on a request for foreign assistance pursuant to section 3512 of this title; or

(ii)

a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.

(B)

Governmental entity

The term governmental entity means a department or agency of the United States or any State or political subdivision thereof.

(2)

Warrant

A governmental entity may intercept geolocation information or require the disclosure by a provider of covered services of geolocation information only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction, or as otherwise provided in this chapter or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

(g)

Prohibition on divulging geolocation information

(1)

In general

Except as provided in paragraph (2), a person providing covered services shall not intentionally divulge to any governmental entity geolocation information pertaining to an individual.

(2)

Exceptions

A person providing covered services may divulge geolocation information—

(A)

as otherwise authorized in subsections (b) through (f);

(B)

with the lawful consent of such individual;

(C)

as permitted under section 222(d)(4) of the Communications Act of 1934 (47 U.S.C. 222(d)(4)); or

(D)

which was inadvertently obtained by the service provider and which appears to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency.

2603.

Prohibition of use as evidence of acquired geolocation information

If any geolocation information has been intercepted, used, or disclosed in violation of this chapter, no part of such information and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof, except in a civil action to obtain relief for a violation of this chapter.

2604.

Emergency situation exception

(a)

Emergency situation exception

Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, may intercept geolocation information if—

(1)

such officer reasonably determines that an emergency situation exists that—

(A)

involves—

(i)

immediate danger of death or serious physical injury to any individual;

(ii)

conspiratorial activities threatening the national security interest; or

(iii)

conspiratorial activities characteristic of organized crime; and

(B)

requires geolocation information be intercepted before an order authorizing such interception can, with due diligence, be obtained;

(2)

there are grounds upon which an order could be entered to authorize such interception; and

(3)

an application for an order approving such interception is made within 48 hours after the interception has occurred or begins to occur.

(b)

Failure To obtain court order

(1)

Termination of acquisition

In the absence of an order, an interception of geolocation information carried out under subsection (a) shall immediately terminate when the information sought is obtained or when the application for the order is denied, whichever is earlier.

(2)

Prohibition on use as evidence

In the event such application for approval is denied, the geolocation information shall be treated as having been obtained in violation of this chapter and an inventory shall be served on each individual who is reasonably able to be contacted and to whom any such geolocation information pertains.

2605.

Recovery of civil damages authorized

(a)

In general

Any individual whose geolocation information is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person, other than the United States, which engaged in that violation such relief as may be appropriate.

(b)

Relief

In an action under this section, appropriate relief includes—

(1)

such preliminary and other equitable or declaratory relief as may be appropriate;

(2)

damages under subsection (c) and punitive damages in appropriate cases; and

(3)

a reasonable attorney's fee and other litigation costs reasonably incurred.

(c)

Computation of damages

The court may assess as damages under this section whichever is the greater of—

(1)

the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or

(2)

statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.

(d)

Defense

It is a defense against any civil action to obtain relief for a violation of this chapter that the defendant acted in a good faith reliance on—

(1)

a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2)

a request of an investigative or law enforcement officer under section 2604; or

(3)

a good-faith determination that an exception under section 2602 permitted the conduct complained of.

(e)

Limitation

A civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.

(f)

Administrative discipline

If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, such head shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.

(g)

Improper disclosure is violation

Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of information beyond the extent permitted by this chapter is a violation of this chapter for purposes of this section.

.

(2)

Clerical amendment

The table of chapters for part 1 of title 18, United States Code, is amended by inserting after the item relating to chapter 119 the following:

120. Geolocation information2601

.

(3)

Conforming amendments

Section 3512(a) of title 18, United States Code, is amended—

(A)

in paragraph (2)—

(i)

by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and

(ii)

by inserting after subparagraph (A) the following:

(B)

a warrant or order for geolocation information or records related thereto, as provided under section 2602 of this title;

.

(b)

Requirement for search warrants To acquire geolocation information

Rule 41(a) of the Federal Rules of Criminal Procedure is amended—

(1)

in paragraph (2)(A), by striking the period at the end and inserting a comma and including geolocation information.; and

(2)

by adding at the end the following:

(F)

Geolocation information has the meaning given that term in section 2601 of title 18, United States Code.

.

(c)

Fraud and related activity in connection with obtaining geolocation information

(1)

Criminal violation

Section 1039(h) of title 18, United States Code, is amended—

(A)

in paragraph (2)—

(i)

in subparagraph (A), by striking and at the end;

(ii)

in subparagraph (B), by striking the period at the end and inserting a semicolon and and; and

(iii)

by adding at the end the following new subparagraph:

(C)

includes any geolocation information service.

;

(B)

by redesignating paragraph (4) as paragraph (5); and

(C)

by inserting after paragraph (3) the following:

(4)

Geolocation information service

The term geolocation information service has the meaning given that term in section 2601.

.

(2)

Conforming amendments

(A)

Definition amendments

Section 1039(h)(1) of title 18, United States Code, is amended—

(i)

in the paragraph heading, by inserting or GPS after phone; and

(ii)

in the matter preceding subparagraph (A), by inserting or GPS after phone.

(B)

Conforming amendments

Section 1039 of title 18, United States Code, is amended—

(i)

in the section heading by inserting or GPS after phone;

(ii)

in subsection (a)—

(I)

in the matter preceding paragraph (1), by inserting or GPS after phone; and

(II)

in paragraph (4), by inserting or GPS after phone;

(iii)

in subsection (b)—

(I)

in the subsection heading, by inserting or GPS after Phone;

(II)

in paragraph (1), by inserting or GPS after phone both places that term appears; and

(III)

in paragraph (2), by inserting or GPS after phone; and

(iv)

in subsection (c)—

(I)

in the subsection heading, by inserting or GPS after Phone;

(II)

in paragraph (1), by inserting or GPS after phone both places that term appears; and

(III)

in paragraph (2), by inserting or GPS after phone.

(C)

Clerical Amendment

The table of sections for chapter 47 of title 18, United States Code, is amended by striking the item relating to section 1039 and inserting the following:

1039. Fraud and related activity in connection with obtaining confidential phone or GPS records information of a covered entity.

.

(3)

Sentencing guidelines

(A)

Review and Amendment

Not later than 180 days after the date of enactment of this Act, the United States Sentencing Commission, pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this subsection, shall review and, if appropriate, amend the Federal sentencing guidelines and policy statements applicable to persons convicted of any offense under section 1039 of title 18, United States Code, as amended by this subsection.

(B)

Authorization

The United States Sentencing Commission may amend the Federal sentencing guidelines in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note) as though the authority under that section had not expired.

(d)

Statement of exclusive means of acquiring geolocation information

(1)

In general

No person may acquire the geolocation information of a person for protective activities or law enforcement or intelligence purposes except pursuant to a warrant issued pursuant to rule 41 of the Federal Rules of Criminal Procedure, as amended by subsection (b), or the amendments made by this section, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

(2)

Geolocation information defined

In this subsection, the term geolocation information has the meaning given that term in section 2601 of title 18, United States Code, as amended by subsection (a).

4.

Strengthened requirements for orders for trap and trace devices

(a)

Section 3122(b) of title 18, United States Code, is amended by striking paragraph (2) and inserting a statement of facts relied upon by the applicant to justify issuance of an order.

(b)

Section 3123(a)(1) of title 18, United States Code, is amended—

(1)

by striking shall and inserting may;

(2)

by striking the attorney for the government has certified to the court and inserting the application establishes specific and articulable facts showing reasonable grounds to believe that; and

(3)

by inserting and material after relevant.

5.

Prohibitions of bulk subpoenas

Section 2703(c)(2) of title 18, United States Code, is amended by striking of a subscriber to or customer and all that follows and inserting of a subscriber to or customer or user of such a service when the governmental entity uses any means available under paragraph (1) or uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena specifying the particular subscriber, customer, or user whose information is sought by name, address, telephone or instrument number, subscriber number or identifier, including any temporarily assigned network address, credit card or bank account number, or any other information that uniquely identifies the particular subscriber, customer, or user..