[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1852 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 1852
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 7, 2013
Mr. Yoder (for himself and Mr. Graves of Georgia) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Email Privacy Act''.
SEC. 2. CONFIDENTIALITY OF ELECTRONIC COMMUNICATIONS.
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 or customer of such
service.''.
SEC. 3. ELIMINATION OF 180-DAY RULE; SEARCH WARRANT REQUIREMENT;
REQUIRED DISCLOSURE OF CUSTOMER RECORDS.
(a) In General.--Section 2703 of title 18, United States Code, is
amended--
(1) by striking subsections (a), (b), and (c) and inserting
the following:
``(a) Contents of Wire or Electronic Communications.--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
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
is issued by a court of competent jurisdiction directing the
disclosure.
``(b) Notice.--Except as provided in section 2705, not later than
10 business days in the case of a law enforcement agency, or not later
than 3 business days in the case of any other governmental entity,
after a governmental entity receives the contents of a wire or
electronic communication of a subscriber or customer from a provider of
electronic communication service or remote computing service under
subsection (a), the governmental entity shall serve upon, or deliver to
by registered or first-class mail, electronic mail, or other means
reasonably calculated to be effective, as specified by the court
issuing the warrant, the subscriber or customer--
``(1) a copy of the warrant; and
``(2) a notice that includes the information referred to in
clauses (i) and (ii) of section 2705(a)(4)(B).
``(c) Records Concerning Electronic Communication Service or Remote
Computing Service.--
``(1) In general.--Subject to paragraph (2), a governmental
entity may require a provider of electronic communication
service or remote computing service to disclose a record or
other information pertaining to a subscriber or customer of the
provider or service (not including the contents of
communications), only if the governmental entity--
``(A) 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 is issued by a court of
competent jurisdiction directing the disclosure;
``(B) obtains a court order directing the
disclosure under subsection (d);
``(C) has the consent of the subscriber or customer
to the disclosure; or
``(D) submits a formal written request relevant to
a law enforcement investigation concerning
telemarketing fraud for the name, address, and place of
business of a subscriber or customer of the provider or
service that is engaged in telemarketing (as defined in
section 2325).
``(2) Information to be disclosed.--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 authorized 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 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.''; and
(2) by adding at the end the following:
``(h) 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--
``(1) require an originator, addressee, or intended
recipient of an electronic communication to disclose the
contents of the electronic communication to the governmental
entity; or
``(2) 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.''.
(b) Technical and Conforming Amendments.--Section 2703(d) of title
18, United States Code, is amended--
(1) by striking ``A court order for disclosure under
subsection (b) or (c)'' and inserting ``A court order for
disclosure under subsection (c)''; and
(2) by striking ``the contents of a wire or electronic
communication, or''.
SEC. 4. DELAYED NOTICE.
Section 2705 of title 18, United States Code, is amended to read as
follows:
``SEC. 2705. DELAYED NOTICE.
``(a) Delay of Notification.--
``(1) In general.--A governmental entity that is seeking a
warrant under section 2703(a) may include in the application
for the warrant a request for an order delaying the
notification required under section 2703(b) for a period of not
more than 180 days in the case of a law enforcement agency, or
not more than 90 days in the case of any other governmental
entity.
``(2) Determination.--A court shall grant a request for
delayed notification made under paragraph (1) if the court
determines that there is reason to believe that notification of
the existence of the warrant may result in--
``(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) Extension.--Upon request by a governmental entity, a
court may grant one or more extensions of the delay of
notification granted under paragraph (2) of not more than 180
days in the case of a law enforcement agency, or not more than
90 days in the case of any other governmental entity.
``(4) Expiration of the delay of notification.--Upon
expiration of the period of delay of notification under
paragraph (2) or (3), the governmental entity shall serve upon,
or deliver to by registered or first-class mail, electronic
mail, or other means reasonably calculated to be effective as
specified by the court approving the search warrant, the
customer or subscriber--
``(A) a copy of the warrant; and
``(B) notice that informs the customer or
subscriber--
``(i) of the nature of the law enforcement
inquiry with reasonable specificity;
``(ii) that information maintained for the
customer or subscriber by the provider of
electronic communication service or remote
computing service named in the process or
request was supplied to, or requested by, the
governmental entity;
``(iii) of the date on which the warrant
was served on the provider and the date on
which the information was provided by the
provider to the governmental entity;
``(iv) that notification of the customer or
subscriber was delayed;
``(v) the identity of the court authorizing
the delay; and
``(vi) of the provision of this chapter
under which the delay was authorized.
``(b) Preclusion of Notice to Subject of Governmental Access.--
``(1) In general.--A governmental entity that is obtaining
the contents of a communication or information or records 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 for a period of not more than 180 days in
the case of a law enforcement agency, or not more than 90 days
in the case of any other governmental entity.
``(2) Determination.--A court shall grant a request for an
order made under paragraph (1) if the court determines that
there is reason to believe that notification of the existence
of the warrant, order, subpoena, or other directive may result
in--
``(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) Extension.--Upon request by a governmental entity, a
court may grant one or more extensions of an order granted
under paragraph (2) of not more than 180 days in the case of a
law enforcement agency, or not more than 90 days in the case of
any other governmental entity.
``(4) Prior notice to law enforcement.--Upon expiration of
the period of delay of notice under this section, and not later
than 3 business days before providing notice to a customer or
subscriber, a provider of electronic communication service or
remote computing service shall notify the governmental entity
that obtained the contents of a communication or information or
records under section 2703 of the intent of the provider of
electronic communication service or remote computing service to
notify the customer or subscriber of the existence of the
warrant, order, or subpoena seeking that information.
``(c) Definition.--In this section and section 2703, the term `law
enforcement agency' means an agency of the United States, a State, or a
political subdivision of a State, authorized by law or by a government
agency to engage in or supervise the prevention, detection,
investigation, or prosecution of any violation of criminal law, or any
other Federal or State agency conducting a criminal investigation.''.
SEC. 5. EVALUATION BY THE GOVERNMENT ACCOUNTABILITY OFFICE.
Not later than September 30, 2015, the Comptroller General of the
United States shall submit to Congress a report regarding the
disclosure of customer communications and records under section 2703 of
title 18, United States Code, which shall include--
(1) an analysis and evaluation of such disclosure under
section 2703 of title 18, United States Code, as in effect
before the date of enactment of this Act, including--
(A) a comprehensive analysis and evaluation
regarding the number of individual instances, in each
of the 5 years before the year in which this Act is
enacted, in which Federal, State, or local law
enforcement officers used section 2703 of title 18,
United States Code, to obtain information relevant to
an ongoing criminal investigation;
(B) an analysis of the average length of time taken
by a provider of an electronic communication service or
a remote computing service to comply with requests by
law enforcement officers for information under section
2703 of title 18, United States Code;
(C) the number of individual instances, in each of
the 5 years before the year in which this Act is
enacted, in which information was requested by law
enforcement officers from a provider of an electronic
communication service or a remote computing service
under a warrant as authorized under section 2703(a) of
title 18, United States Code;
(D) the number of individual instances and type of
request, in each of the 5 years before the year in
which this Act is enacted, in which information was
requested by law enforcement officers from a provider
of an electronic communication service or a remote
computing service under the other information request
provisions in section 2703 of title 18, United States
Code; and
(E) the number of individual instances, in each of
the 5 years before the year in which this Act is
enacted, in which law enforcement officers requested
delayed notification to the subscriber or customer
under section 2705 of title 18, United States Code; and
(2) an analysis and evaluation of such disclosure under
section 2703 of title 18, United States Code, as amended by
this Act, including--
(A) an evaluation of the effects of the amendments
to the warrant requirements on judges, court dockets,
or any other court operations;
(B) a survey of Federal, State, and local judges
and law enforcement officers to determine the average
length of time required for providers of an electronic
communication service or a remote computing service to
provide the contents of communications requested under
a search warrant, which shall include identifying the
number of instances in which a judge was required to
order a provider of an electronic communication service
or a remote computing service to appear to show cause
for failing to comply with a warrant or to issue an
order of contempt against a provider of an electronic
communication service or a remote computing service for
such a failure; and
(C) determining whether the amendments to the
warrant requirements resulted in an increase in the use
of the emergency exception under section 2702(b)(8) of
title 18, United States Code.
SEC. 6. 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 communications 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.
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