IN THE SENATE OF THE UNITED STATES
May 25, 2016
Mr. Hatch (for himself, Mr. Coons, and Mr. Heller) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To amend title 18, United States Code, to safeguard data stored abroad, and for other purposes.
This Act may be cited as the
International Communications Privacy Act .
Congressional findings and declaration of purpose
Congress finds the following:
The Electronic Communications Privacy Act of 1986 (Public Law 99–508; 100 Stat. 1848) (referred to in this section as
ECPA) was intended to protect the privacy of electronic communications stored with providers of electronic communications services and remote computing services, while balancing the legitimate needs of law enforcement to access records stored by such providers.
To strike this balance, ECPA authorized governmental entities to obtain certain categories of communications data from providers using established, pre-existing forms of process warrants and subpoenas. It also created a new form of court order, in section 2703(d) of title 18, United States Code, that governmental entities could use to obtain additional types of communications data.
Congress recognizes the legitimate needs of law enforcement agencies in the United States to obtain, through lawful process, electronic communications relevant to criminal investigations, as well as the privacy interests of citizens of foreign countries. Therefore, where the Government seeks to obtain the contents of electronic communications of foreign citizens located outside of the United States, this Act authorizes the use of search warrants only if the foreign government does not have a Law Enforcement Cooperation Agreement with the United States or, if it does have such a Law Enforcement Cooperation Agreement, the foreign government does not object to disclosure.
Extension and clarification of warrant requirement
Chapter 121 of title 18, United States Code, is amended—
in section 2702(a), by amending paragraph (3) to read as follows:
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 or customer of such service.
in section 2703—
by striking subsections (a) and (b) and inserting the following:
Contents of wire or electronic communication in electronic storage
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 in electronic storage with or otherwise stored, held, or maintained by the provider, regardless of where such contents may be in electronic storage or otherwise stored, held, or maintained, 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. An application for a warrant under this section shall include a full and complete statement of the facts and circumstances relied upon and the investigative steps taken to ascertain the nationality and location of the subscriber or customer whose contents are sought by the warrant. Any such warrant may be used to require the disclosure of contents of a wire or electronic communication only if the court finds that—
the governmental entity has taken all reasonable steps to establish the nationality and location of the subscriber or customer whose contents are sought; and
at the time the warrant application is made—
there are reasonable grounds to believe that the subscriber or customer whose contents are sought by the warrant is—
a United States person;
physically located within the United States;
a national of or located in a foreign country or countries where any of those countries has an applicable Law Enforcement Cooperation Agreement with the United States (or in the case where the warrant application is made on behalf of a foreign government pursuant to a Law Enforcement Cooperation Agreement with the United States, any of those countries has an applicable Law Enforcement Cooperation Agreement with the requesting foreign government) and the Central Authority for each such country with such a Law Enforcement Cooperation Agreement provides written certification that the disclosure may be had or does not object to the disclosure within 60 days after formal submission of a request for such certification; or
a national of and located in a foreign country or countries where none of those countries have an applicable Law Enforcement Cooperation Agreement with the United States (or in the case where the warrant application is made on behalf of a foreign government pursuant to a Law Enforcement Cooperation Agreement with the United States, none of those countries have an applicable Law Enforcement Cooperation Agreement with the requesting foreign government); or
there are no reasonable grounds on which to base a belief as to either the nationality or the location of the subscriber or customer whose contents are sought.
Upon a motion made promptly by the service provider, a court issuing a warrant under this section shall modify or vacate such warrant if—
the court finds that the warrant does not meet the requirements of this section or is otherwise unlawful; or
the service provider presents additional information about the subscriber’s or customer’s physical location, status as a United States person, or status as a national of a foreign country that would cause the court to find that the warrant application would not comply with the requirements of this section.
in subsection (d), in the first sentence—
the contents of a wire or electronic communication, or; and
sought, are and inserting
sought are; and
by adding at the end the following:
Rule of construction
Nothing in this section or in section 2702 shall be construed to limit the authority of a governmental entity to use an administrative subpoena authorized under a Federal or State statute or to use a Federal or State grand jury, trial, or civil discovery subpoena to—
require an originator, addressee, or intended recipient of an electronic communication to disclose the contents of the electronic communication to the governmental entity; or
require an entity that provides electronic communication services to the officers, directors, employees, or agents of the entity (for the purpose of carrying out their duties) to disclose the contents of an electronic communication to or from an officer, director, employee, or agent of the entity to a governmental entity, if the electronic communication is held, stored, or maintained on an electronic communications system owned or operated by the entity.
in section 2704(a)(1), by striking
section 2703(b)(2) and inserting
section 2703; and
in section 2711—
in paragraph (3)(B) by striking
warrants; and and inserting
in paragraph (4) by striking
thereof. and inserting
by adding at the end the following:
the term United States person means a citizen of the United States or an alien lawfully admitted for permanent residence (as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)));
the term Law Enforcement Cooperation Agreement means—
a mutual legal assistance treaty, mutual legal assistance agreement, adherence to the Convention on Cybercrime, signed November 21, 2001; or
an executive agreement or treaty between the United States and one or more countries designed to establish a reciprocal process for notifying and obtaining the consent of the other country or countries in order to obtain the contents of electronic communication pursuant to section 2703(a)(1)(A)(iii), provided that the Attorney General shall maintain a list of countries with which the United States has such agreements and shall submit such list, as and when amended, to the Committees on the Judiciary and Foreign Relations of the United States Senate and the Committees on the Judiciary and Foreign Affairs of the United States House of Representatives, and shall make it available to the public;
the term Central Authority means the agency, department, office, or authority of a country responsible for administering a particular Law Enforcement Cooperation Agreement between that country and another; and
the term national of a foreign country means a citizen, a lawful resident, or an entity organized under the laws of a foreign jurisdiction.
Rule of construction
Nothing in this Act or the amendments made by this Act shall be construed to expand the investigative authority of any governmental entity.
Mutual legal assistance treaty reforms
Mutual legal assistance treaty transparency and efficiency
Not later than 180 days after the date of enactment of this Act, the Attorney General shall establish—
a form for use by a foreign government filing a mutual legal assistance treaty request (referred to in this section as an
MLAT request), which shall—
be made available on the website of the Department of Justice; and
require sufficient information and be susceptible for use by a foreign government to provide all the information necessary for the MLAT request;
an online docketing system for all MLAT requests, which shall allow a foreign government to track the status of an MLAT request filed by the foreign government; and
a process through which certified approval may be sought for disclosure pursuant to warrants issued under section 2703(a).
Beginning not later than 1 year after the date of enactment of this Act, and each year thereafter, the Attorney General shall publish on the website of the Department of Justice statistics on—
the number of MLAT requests made by the Department of Justice to foreign governments for the purpose of obtaining the contents of an electronic communication or other information or records from a provider of electronic communications or remote computing services; and
the average length of time taken by foreign governments to process the MLAT requests described in clause (i); and
the number of MLAT requests made to the Department of Justice by foreign governments for the purpose of obtaining the contents of an electronic communication or other information or records from a provider of electronic communications or remote computing services; and
the average length of time taken by the Department of Justice to process the MLAT requests described in clause (i).
Notice to department of state
The Attorney General shall notify the Secretary of State not later than 7 days after the date on which disclosure of electronic communications content to a foreign government is made pursuant to an MLAT request.
Preservation of records
The Attorney General may issue a request pursuant to section 2703(f) of title 18, United States Code, upon receipt of an MLAT request that appears to be facially valid.
Notification to provider of MLAT request
When the Attorney General makes use of the process provided in section 2703 of title 18, United States Code, to obtain information from an electronic communications provider or a remote computing provider based on an MLAT request, the Attorney General shall notify that provider in writing that the request has been made pursuant to a mutual legal assistance treaty.
Sense of Congress
It is the sense of Congress that—
data localization requirements imposed by foreign governments on data providers are—
incompatible with the borderless nature of the Internet;
an impediment to online innovation; and
unnecessary to meet the needs of law enforcement; and
the Department of Justice, the Department of State, and the United States Trade Representatives should pursue open data flow policies with foreign nations.