I
113th CONGRESS
1st Session
H. R. 983
IN THE HOUSE OF REPRESENTATIVES
March 6, 2013
Ms. Lofgren (for herself, Mr. Poe of Texas, and Ms. DelBene) 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.
Short title
This Act may be cited as the
Online Communications and Geolocation
Protection Act
.
Warrant required for contents of communications
Compelled disclosure of communication contents
In general
Section 2703 of title 18, United States Code, is amended—
in subsection (a)—
by
striking
in Electronic
Storage
in the subsection header;
by
inserting or remote computing service
in the first sentence
after electronic communication service
;
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
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
by striking subsection (b).
Conforming amendment
Section 2703(d) of title 18, United States Code, is
amended by striking (b) or
.
Voluntary disclosure of communication contents
In general
Section 2702(a)(3) of title 18, United States Code, is amended—
by inserting
to any governmental entity the contents of communication covered by
subsection (a) of section 2703 or any
after
divulge
;
by inserting
or user
after customer
; and
by striking
(not including the contents of communications covered by paragraph (1)
or (2))
.
Conforming amendments
Section 2705 of title 18, United States Code, is amended—
in
the subsection heading, by striking 2703(b)
and inserting
2703(a)
;
in
subparagraph (A), by striking court order
each place it appears
and inserting warrant
;
in
subparagraph (A), by striking 2703(b)
and inserting
2703(a)
; and
by striking subparagraph (B);
by striking subsection (a)(3);
in subsection
(a)(4), by striking or by certification by a governmental entity, but
only in accordance with subsection (b) of this section.
;
by
inserting after first-class mail,
the following: or other
means reasonably calculated to be effective as specified by the court issuing
the warrant
;
by
striking the process or request
and replacing it with
warrant
; and
in
subsection (5)(A)(iii), by striking governmental entity or
and
certification or
;
by striking subsection (a)(6); and
in subsection (b)—
by
striking when it is not required to notify the subscriber or customer
under section 2703(b)(1), or
; and
by
striking subpoena or court order
each place it appears.
Geolocation information protection
In general
In general
Part 1 of title 18, United States Code, is amended by inserting after chapter 119 the following:
Geolocation information
Sec.
2601. Definitions.
2602. Interception and disclosure of geolocation information.
2603. Prohibition on disclosing geolocation information to governmental entities.
2604. Prohibition of use of unlawfully obtained geolocation information as evidence.
2605. Recovery of civil damages and administrative discipline authorized.
Definitions
In this chapter:
Electronic communication service
The term electronic communication service has the meaning given that term in section 2510.
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).
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.
Geolocation information service
The term geolocation information service means a service that generates or uses geolocation information for the provision of a 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.
Governmental entity
The term governmental entity means any employee or agent of the United States, or any State or political subdivision thereof.
Intercept
The term intercept means the acquisition of geolocation information through the use of any electronic, mechanical, or other device.
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.
Remote computing service
The term remote computing service has the meaning given that term in section 2711.
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.
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 signal or other wireless connection to access or use such system or service, including any mobile telephone, global positioning system receiving device, mobile computer, or other similar or successor device.
Covered service
The term covered services means electronic communication service, remote computing service, or geolocation information service.
Interception and disclosure of geolocation information
In general
Except as otherwise provided in this chapter, it shall be unlawful for any governmental entity to—
intentionally intercept, endeavor to intercept, or direct any person to intercept or endeavor to intercept, geolocation information pertaining to an individual;
intentionally disclose, or endeavor to disclose, or direct any person to disclose or endeavor to disclose geolocation information pertaining to an individual, knowing or having reason to know that the information was obtained in violation of this subsection; or
intentionally use, or endeavor to use, any geolocation information, knowing or having reason to know that the information was obtained in violation of this subsection.
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.).
Exception for consent
In general
It shall not be unlawful under this chapter for a governmental entity to intercept, use, or disclose geolocation information pertaining to an individual if that individual has given prior consent to that governmental entity for such interception, use or disclosure.
Children
A parent or legal guardian of a child may consent on behalf of a child for the purposes of paragraph (1).
Exception for public information
It shall not be unlawful under this chapter for a governmental entity to intercept or access geolocation information pertaining to an individual through any system that is configured so that such information is readily accessible to the general public.
Exception for emergency assistance
It shall not be unlawful under this chapter for any investigative or law enforcement officer or other emergency responder to intercept, access, use, or disclose geolocation information pertaining to an individual if such information is used—
to respond to a request made by such individual for assistance; or
to assist the individual in circumstances in which it is reasonable to believe that the life or safety of the individual is in jeopardy.
Exception for warrant
In general
A governmental entity may intercept geolocation information or require the disclosure of geolocation information by a provider of covered services only pursuant to a warrant issued by a court of competent jurisdiction using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures), or as otherwise provided in this chapter or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
Court of competent jurisdiction
For the purposes of this subsection, the term court of competent jurisdiction includes—
any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that—
has jurisdiction over the offense being investigated;
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
is acting on a request for foreign assistance pursuant to section 3512 of this title; or
a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.
Emergency situation exception
In general
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 or use geolocation information if—
such officer reasonably determines that an emergency situation exists that—
involves—
immediate danger of death or serious physical injury to any individual;
conspiratorial activities threatening the national security interest; or
conspiratorial activities characteristic of organized crime; and
requires geolocation information be intercepted or used before an order authorizing such interception or use can, with due diligence, be obtained;
there are grounds upon which an order could be entered to authorize such interception or use; and
an application for an order approving such interception or use is made within 48 hours after the interception or use has occurred or begins to occur.
Failure to obtain court order
Termination of acquisition
In the absence of an order, an interception or use of geolocation information carried out under paragraph (1) shall immediately terminate when the information sought is obtained or when the application for the order is denied, whichever is earlier.
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.
Prohibition on disclosing geolocation information to governmental entities
In general
Except as provided in subsection (b), a person providing covered services shall not intentionally disclose to any governmental entity geolocation information pertaining to an individual.
Exceptions
A person providing covered services may disclose geolocation information—
as otherwise authorized in subsections (b) through (g) of section 2602;
with the lawful consent of—
the individual to whom the geolocation information pertains; or
the parent or guardian of a child to whom the geolocation information pertains;
as permitted under section 222(d)(4) of the Communications Act of 1934 (47 U.S.C. 222(d)(4)); or
which was inadvertently obtained by the service provider and which appears to pertain to the commission of a crime, if such disclosure is made to a law enforcement agency.
Prohibition of use of unlawfully obtained geolocation information as evidence
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.
Recovery of civil damages and administrative discipline authorized
In general
Any individual whose geolocation information is intentionally disclosed or used in violation of this chapter may in a civil action recover such relief as may be appropriate from the person, other than the United States, which engaged in that violation.
Relief
In an action under this section, appropriate relief includes—
such preliminary and other equitable or declaratory relief as the court may deem appropriate;
damages under subsection (c) and punitive damages as the court may deem appropriate; and
a reasonable attorney's fee and other litigation costs reasonably incurred.
Computation of damages
The court may assess as damages under this section whichever is the greater of—
the sum of the actual damages suffered by the plaintiff; or
statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.
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—
a warrant or court order, grand jury subpoena, legislative authorization, or statutory authorization; or
a reasonable determination that an exception under section 2602 permitted the conduct complained of.
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.
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.
.
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:
.
Conforming amendments
Section 3512(a) of title 18, United States Code, is amended—
in paragraph (2)—
by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; and
by inserting after subparagraph (A) the following:
a warrant or order for geolocation information or records related thereto, as provided under section 2602 of this title;
.
Requirement for search warrants To obtain geolocation information
Rule 41(a) of the Federal Rules of Criminal Procedure is amended—
in paragraph
(2)(A), by striking the period at the end and inserting a comma and
including geolocation information.
; and
by adding at the end the following:
Geolocation information has the meaning given that term in section 2601 of title 18, United States Code.
.
Statement of exclusive means of obtaining geolocation information
In general
No person may obtain 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).
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).
