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H.R. 699 (114th): Email Privacy Act

The text of the bill below is as of Apr 26, 2016 (Reported by House Committee).

Source: GPO

IB

Union Calendar No. 408

114th CONGRESS

2d Session

H. R. 699

[Report No. 114–528]

IN THE HOUSE OF REPRESENTATIVES

February 4, 2015

(for himself, Mr. Polis, Mr. Aderholt, Mr. Allen, Mr. Amash, Mr. Amodei, Mr. Babin, Mr. Barletta, Mr. Barr, Mr. Barton, Mr. Benishek, Mr. Beyer, Mr. Bilirakis, Mr. Bishop of Utah, Mrs. Black, Mrs. Blackburn, Mr. Blum, Ms. Bonamici, Mr. Boustany, Mr. Brady of Texas, Mr. Brooks of Alabama, Ms. Brown of Florida, Ms. Brownley of California, Mr. Buchanan, Mr. Bucshon, Mr. Burgess, Mr. Byrne, Mr. Calvert, Mrs. Capps, Mr. Capuano, Mr. Cárdenas, Mr. Carter of Georgia, Mr. Cartwright, Mr. Chabot, Mr. Chaffetz, Ms. Chu of California, Mr. Cicilline, Ms. Clark of Massachusetts, Ms. Clarke of New York, Mr. Clawson of Florida, Mr. Cleaver, Mr. Cohen, Mr. Cole, Mr. Collins of New York, Mr. Connolly, Mr. Conyers, Mr. Cramer, Mr. Crenshaw, Mr. Culberson, Mr. Cummings, Mr. Curbelo of Florida, Mr. Rodney Davis of Illinois, Mr. Danny K. Davis of Illinois, Mr. DeFazio, Ms. DeGette, Ms. DelBene, Mr. Denham, Mr. Dent, Mr. DeSaulnier, Mr. DesJarlais, Mr. Deutch, Mr. Diaz-Balart, Mr. Dold, Mr. Michael F. Doyle of Pennsylvania, Ms. Duckworth, Mr. Duffy, Mr. Duncan of South Carolina, Mr. Duncan of Tennessee, Ms. Edwards, Mr. Ellison, Mrs. Ellmers, Mr. Emmer, Ms. Eshoo, Ms. Esty, Mr. Farenthold, Mr. Farr, Mr. Fitzpatrick, Mr. Fleischmann, Mr. Flores, Mr. Fortenberry, Mr. Franks of Arizona, Mr. Frelinghuysen, Ms. Fudge, Ms. Gabbard, Mr. Garamendi, Mr. Garrett, Mr. Gibbs, Mr. Gibson, Mr. Gosar, Mr. Gowdy, Mr. Graves of Georgia, Mr. Grijalva, Mr. Grothman, Mr. Guinta, Mr. Guthrie, Mr. Hanna, Mr. Harris, Mrs. Hartzler, Mr. Hastings, Ms. Herrera Beutler, Mr. Hill, Mr. Himes, Mr. Honda, Mr. Hudson, Mr. Huelskamp, Mr. Huizenga of Michigan, Mr. Hultgren, Mr. Hunter, Mr. Hurd of Texas, Mr. Israel, Ms. Jackson Lee, Ms. Jenkins of Kansas, Mr. Johnson of Georgia, Mr. Jolly, Mr. Jones, Mr. Jordan, Mr. Joyce, Ms. Kaptur, Mr. Kilmer, Mr. Kinzinger of Illinois, Ms. Kuster, Mr. Labrador, Mr. LaMalfa, Mr. Lance, Mr. Latta, Ms. Lee, Mr. Levin, Mr. Lewis, Mr. Lipinski, Mr. LoBiondo, Mr. Long, Mr. Loudermilk, Mrs. Love, Mr. Lowenthal, Mr. Luetkemeyer, Mr. Ben Ray Luján of New Mexico, Ms. Michelle Lujan Grisham of New Mexico, Mrs. Lummis, Mr. Marchant, Mr. Marino, Mr. Massie, Mr. McClintock, Ms. McCollum, Mr. McDermott, Mr. McGovern, Mr. McHenry, Mr. McKinley, Mr. Meadows, Mr. Meehan, Mr. Meeks, Mr. Messer, Mr. Moolenaar, Mr. Mullin, Mr. Mulvaney, Mr. Nadler, Mr. Newhouse, Mrs. Noem, Mr. Nolan, Ms. Norton, Mr. Nugent, Mr. Nunes, Mr. Olson, Mr. O’Rourke, Mr. Palazzo, Mr. Paulsen, Mr. Pearce, Mr. Pocan, Mr. Poe of Texas, Mr. Poliquin, Mr. Pompeo, Mr. Posey, Mr. Quigley, Mr. Rangel, Mr. Reed, Mr. Ribble, Mr. Rice of South Carolina, Mrs. Roby, Mr. Roe of Tennessee, Mr. Rokita, Mr. Rooney of Florida, Mr. Rouzer, Mr. Ruiz, Mr. Rush, Mr. Ryan of Ohio, Mr. Sablan, Mr. Salmon, Mr. Sanford, Mr. Scalise, Mr. Schock, Mr. Schrader, Mr. Schweikert, Mr. Austin Scott of Georgia, Mr. Scott of Virginia, Mr. Sensenbrenner, Mr. Serrano, Mr. Sessions, Mr. Shuster, Mr. Simpson, Ms. Slaughter, Mr. Smith of Missouri, Mr. Smith of Texas, Ms. Speier, Mr. Stivers, Mr. Stutzman, Mr. Swalwell of California, Mr. Takano, Mr. Thompson of Pennsylvania, Mr. Tiberi, Mr. Tipton, Mr. Tonko, Ms. Tsongas, Mr. Turner, Mr. Valadao, Mrs. Wagner, Mr. Walker, Mr. Weber of Texas, Mr. Webster of Florida, Mr. Welch, Mr. Wenstrup, Mr. Westerman, Mr. Whitfield, Mr. Williams, Mr. Wilson of South Carolina, Mr. Womack, Mr. Yarmuth, Mr. Yoho, Mr. Young of Indiana, Mr. Young of Iowa, Ms. Granger, Mr. McNerney, Mr. Richmond, Miss Rice of New York, Mr. Sherman, and Ms. Pingree) introduced the following bill; which was referred to the Committee on the Judiciary


April 26, 2016

Additional sponsors: Mr. Hensarling, Mr. Costello of Pennsylvania, Mr. Butterfield, Mr. Bishop of Georgia, Mr. Young of Alaska, Mr. Ted Lieu of California, Mr. Fattah, Ms. Stefanik, Ms. Eddie Bernice Johnson of Texas, Mr. Doggett, Mr. Gene Green of Texas, Mr. Norcross, Mr. Johnson of Ohio, Mr. Perlmutter, Mr. Brat, Mr. Collins of Georgia, Mrs. McMorris Rodgers, Mr. Sean Patrick Maloney of New York, Ms. McSally, Ms. Roybal-Allard, Mr. Katko, Mrs. Comstock, Mrs. Lawrence, Mr. Tom Price of Georgia, Mr. Mooney of West Virginia, Mr. Westmoreland, Mr. Neal, Mrs. Torres, Ms. Sinema, Ms. Moore, Mr. Bost, Mr. Foster, Mr. Blumenauer, Mr. Kelly of Pennsylvania, Mr. Conaway, Mr. Renacci, Mr. Miller of Florida, Mr. Fleming, Mr. MacArthur, Mr. Engel, Mr. Smith of Washington, Mr. Vargas, Mrs. Mimi Walters of California, Mr. Carson of Indiana, Mr. Perry, Mr. Woodall, Mr. Lucas, Mr. Fincher, Mr. Rohrabacher, Mr. Bishop of Michigan, Ms. Schakowsky, Mr. Al Green of Texas, Mr. Griffith, Mr. Stewart, Mr. Jeffries, Mr. Bridenstine, Ms. Bass, Mr. Roskam, Mrs. Dingell, Mr. Rogers of Kentucky, Mr. Ratcliffe, Mr. Coffman, Mr. Graves of Missouri, Mr. Gutiérrez, Mr. Lamborn, Mr. Harper, Mr. Zeldin, Mrs. Beatty, Mr. Payne, Mr. Walberg, Mrs. Carolyn B. Maloney of New York, Mr. Trott, Mr. Jody B. Hice of Georgia, Mr. Kind, Mr. Rothfus, Mrs. Napolitano, Mr. Grayson, Mr. Heck of Nevada, Mr. Price of North Carolina, Mr. Heck of Washington, and Mr. Sam Johnson of Texas

April 26, 2016

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 February 4, 2015


A BILL

To amend title 18, United States Code, to update the privacy protections for electronic communications information that is stored by third-party service providers in order to protect consumer privacy interests while meeting law enforcement needs, and for other purposes.


1.

Short title

This Act may be cited as the Email Privacy Act.

2.

Voluntary disclosure corrections

(a)

In general

Section 2702 of title 18, United States Code, is amended—

(1)

in subsection (a)—

(A)

in paragraph (1)—

(i)

by striking divulge and inserting disclose;

(ii)

by striking while in electronic storage by that service and inserting that is in electronic storage with or otherwise stored, held, or maintained by that service;

(B)

in paragraph (2)—

(i)

by striking to the public;

(ii)

by striking divulge and inserting disclose; and

(iii)

by striking which is carried or maintained on that service and inserting that is stored, held, or maintained by that service; and

(C)

in paragraph (3)—

(i)

by striking divulge and inserting disclose; and

(ii)

by striking a provider of and inserting a person or entity providing

(2)

in subsection (b)—

(A)

in the matter preceding paragraph (1), by inserting wire or electronic before communication;

(B)

by amending paragraph (1) to read as follows:

(1)

to an originator, addressee, or intended recipient of such communication, to the subscriber or customer on whose behalf the provider stores, holds, or maintains such communication, or to an agent of such addressee, intended recipient, subscriber, or customer;

; and

(C)

by amending paragraph (3) to read as follows:

(3)

with the lawful consent of the originator, addressee, or intended recipient of such communication, or of the subscriber or customer on whose behalf the provider stores, holds, or maintains such communication;

;

(3)

in subsection (c) by inserting wire or electronic before communications;

(4)

in each of subsections (b) and (c), by striking divulge and inserting disclose; and

(5)

in subsection (c), by amending paragraph (2) to read as follows:

(2)

with the lawful consent of the subscriber or customer;

.

3.

Amendments to required disclosure section

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

(1)

by striking subsections (a) through (c) and inserting the following:

(a)

Contents of wire or electronic communications in electronic storage

Except as provided in subsections (i) and (j), a governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that is in electronic storage with or otherwise stored, held, or maintained by that service only if the governmental entity obtains 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) that—

(1)

is issued by a court of competent jurisdiction; and

(2)

may indicate the date by which the provider must make the disclosure to the governmental entity.

In the absence of a date on the warrant indicating the date by which the provider must make disclosure to the governmental entity, the provider shall promptly respond to the warrant.
(b)

Contents of wire or electronic communications in a remote computing service

(1)

In general

Except as provided in subsections (i) and (j), a governmental entity may require the disclosure by a provider of remote computing service of the contents of a wire or electronic communication that is stored, held, or maintained by that service only if the governmental entity obtains 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) that—

(A)

is issued by a court of competent jurisdiction; and

(B)

may indicate the date by which the provider must make the disclosure to the governmental entity.

In the absence of a date on the warrant indicating the date by which the provider must make disclosure to the governmental entity, the provider shall promptly respond to the warrant.
(2)

Applicability

Paragraph (1) is applicable with respect to any wire or electronic communication that is stored, held, or maintained by the provider—

(A)

on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communication received by means of electronic transmission from), a subscriber or customer of such remote computing service; and

(B)

solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

(c)

Records concerning electronic communication service or remote computing service

(1)

In general

Except as provided in subsections (i) and (j), a governmental entity may require the disclosure by a provider of electronic communication service or remote computing service of a record or other information pertaining to a subscriber to or customer of such service (not including the contents of wire or electronic communications), only—

(A)

if a governmental entity obtains 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) that—

(i)

is issued by a court of competent jurisdiction directing the disclosure; and

(ii)

may indicate the date by which the provider must make the disclosure to the governmental entity;

(B)

if a governmental entity obtains a court order directing the disclosure under subsection (d);

(C)

with the lawful consent of the subscriber or customer; or

(D)

as otherwise authorized in paragraph (2).

(2)

Subscriber or customer Information

A provider of electronic communication service or remote computing service shall, in response to an administrative subpoena authorized by Federal or State statute, a grand jury, trial, or civil discovery subpoena, or any means available under paragraph (1), disclose to a governmental entity the—

(A)

name;

(B)

address;

(C)

local and long distance telephone connection records, or records of session times and durations;

(D)

length of service (including start date) and types of service used;

(E)

telephone or instrument number or other subscriber or customer number or identity, including any temporarily assigned network address; and

(F)

means and source of payment for such service (including any credit card or bank account number);

of a subscriber or customer of such service.
(3)

Notice not required

A governmental entity that receives records or information under this subsection is not required to provide notice to a subscriber or customer.

;

(2)

in subsection (d)—

(A)

by striking (b) or;

(B)

by striking the contents of a wire or electronic communication, or;

(C)

by striking sought, and inserting sought; and

(D)

by striking section and inserting subsection; and

(3)

by adding at the end the following:

(h)

Notice

Except as provided in section 2705, a provider of electronic communication service or remote computing service may notify a subscriber or customer of a receipt of a warrant, court order, subpoena, or request under subsection (a), (b), (c), or (d) of this section.

(i)

Rule of construction related to legal process

Nothing in this section or in section 2702 shall limit the authority of a governmental entity to use an administrative subpoena authorized by Federal or State statute, a grand jury, trial, or civil discovery subpoena, or 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 to—

(1)

require an originator, addressee, or intended recipient of a wire or electronic communication to disclose a wire or electronic communication (including the contents of that communication) to the governmental entity;

(2)

require a person or entity that provides an electronic communication service to the officers, directors, employees, or agents of the person or entity (for the purpose of carrying out their duties) to disclose a wire or electronic communication (including the contents of that communication) to or from the person or entity itself or to or from an officer, director, employee, or agent of the entity to a governmental entity, if the wire or electronic communication is stored, held, or maintained on an electronic communications system owned, operated, or controlled by the person or entity; or

(3)

require a person or entity that provides a remote computing service or electronic communication service to disclose a wire or electronic communication (including the contents of that communication) that advertises or promotes a product or service and that has been made readily accessible to the general public.

(j)

Rule of construction related to Congressional subpoenas

Nothing in this section or in section 2702 shall limit the power of inquiry vested in the Congress by Article I of the Constitution of the United States, including the authority to compel the production of a wire or electronic communication (including the contents of a wire or electronic communication) that is stored, held, or maintained by a person or entity that provides remote computing service or electronic communication service.

.

4.

Delayed notice

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

2705.

Delayed notice

(a)

In general

A governmental entity acting under section 2703 may apply to a court for an order directing a provider of electronic communication service or remote computing service to which a warrant, order, subpoena, or other directive under section 2703 is directed not to notify any other person of the existence of the warrant, order, subpoena, or other directive.

(b)

Determination

A court shall grant a request for an order made under subsection (a) for delayed notification of up to 180 days if the court determines that there is reason to believe that notification of the existence of the warrant, order, subpoena, or other directive will likely result in—

(1)

endangering the life or physical safety of an individual;

(2)

flight from 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.

(c)

Extension

Upon request by a governmental entity, a court may grant one or more extensions, for periods of up to 180 days each, of an order granted in accordance with subsection (b).

.

5.

Rule of construction

Nothing in this Act or an amendment made by this Act shall be construed to preclude the acquisition by the United States Government of—

(1)

the contents of a wire or electronic communication pursuant to other lawful authorities, including the authorities under chapter 119 of title 18 (commonly known as the Wiretap Act), the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), or any other provision of Federal law not specifically amended by this Act; or

(2)

records or other information relating to a subscriber or customer of any electronic communication service or remote computing service (not including the content of such communications) pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), chapter 119 of title 18 (commonly known as the Wiretap Act), or any other provision of Federal law not specifically amended by this Act.

April 26, 2016

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