[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4639 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. R. 4639
To amend section 2702 of title 18, United States Code, to prevent law
enforcement and intelligence agencies from obtaining subscriber or
customer records in exchange for anything of value, to address
communications and records in the possession of intermediary internet
service providers, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 14, 2023
Mr. Davidson (for himself, Mr. Nadler, Mr. Biggs, Ms. Lofgren, Mr.
Buck, Ms. Jayapal, Mr. Massie, and Ms. Jacobs) introduced the following
bill; which was referred to the Committee on the Judiciary, and in
addition to the Permanent Select Committee on Intelligence, 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 section 2702 of title 18, United States Code, to prevent law
enforcement and intelligence agencies from obtaining subscriber or
customer records in exchange for anything of value, to address
communications and records in the possession of intermediary internet
service providers, 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 ``Fourth Amendment Is Not For Sale
Act''.
SEC. 2. PROTECTION OF RECORDS HELD BY DATA BROKERS.
Section 2702 of title 18, United States Code, is amended by adding
at the end the following:
``(e) Prohibition on Obtaining in Exchange for Anything of Value
Certain Records and Information by Law Enforcement and Intelligence
Agencies.--
``(1) Definitions.--In this subsection--
``(A) the term `covered customer or subscriber
record' means a covered record that is--
``(i) disclosed to a third party by--
``(I) a provider of an electronic
communication service to the public or
a provider of a remote computing
service of which the covered person
with respect to the covered record is a
subscriber or customer; or
``(II) an intermediary service
provider that delivers, stores, or
processes communications of such
covered person;
``(ii) collected by a third party from an
online account of a covered person; or
``(iii) collected by a third party from or
about an electronic device of a covered person;
``(B) the term `covered person' means--
``(i) a person who is located inside the
United States; or
``(ii) a person--
``(I) who is located outside the
United States or whose location cannot
be determined; and
``(II) who is a United States
person, as defined in section 101 of
the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801);
``(C) the term `covered record' means a record or
other information that--
``(i) pertains to a covered person; and
``(ii) is--
``(I) a record or other information
described in the matter preceding
paragraph (1) of subsection (c);
``(II) the contents of a
communication; or
``(III) location information;
``(D) the term `electronic device' has the meaning
given the term `computer' in section 1030(e);
``(E) the term `illegitimately obtained
information' means a covered record that--
``(i) was obtained--
``(I) from a provider of an
electronic communication service to the
public or a provider of a remote
computing service in a manner that--
``(aa) violates the service
agreement between the provider
and customers or subscribers of
the provider; or
``(bb) is inconsistent with
the privacy policy of the
provider;
``(II) by deceiving the covered
person whose covered record was
obtained; or
``(III) through the unauthorized
accessing of an electronic device or
online account; or
``(ii) was--
``(I) obtained from a provider of
an electronic communication service to
the public, a provider of a remote
computing service, or an intermediary
service provider; and
``(II) collected, processed, or
shared in violation of a contract
relating to the covered record;
``(F) the term `intelligence community' has the
meaning given that term in section 3 of the National
Security Act of 1947 (50 U.S.C. 3003);
``(G) the term `location information' means
information derived or otherwise calculated from the
transmission or reception of a radio signal that
reveals the approximate or actual geographic location
of a customer, subscriber, or device;
``(H) the term `obtain in exchange for anything of
value' means to obtain by purchasing, to receive in
connection with services being provided for
consideration, or to otherwise obtain in exchange for
consideration, including an access fee, service fee,
maintenance fee, or licensing fee;
``(I) the term `online account' means an online
account with an electronic communication service to the
public or remote computing service;
``(J) the term `pertain', with respect to a person,
means--
``(i) information that is linked to the
identity of a person; or
``(ii) information--
``(I) that has been anonymized to
remove links to the identity of a
person; and
``(II) that, if combined with other
information, could be used to identify
a person; and
``(K) the term `third party' means a person who--
``(i) is not a governmental entity; and
``(ii) in connection with the collection,
disclosure, obtaining, processing, or sharing
of the covered record at issue, was not acting
as--
``(I) a provider of an electronic
communication service to the public; or
``(II) a provider of a remote
computing service.
``(2) Limitation.--
``(A) In general.--A law enforcement agency of a
governmental entity and an element of the intelligence
community may not obtain from a third party in exchange
for anything of value a covered customer or subscriber
record or any illegitimately obtained information.
``(B) Indirectly acquired records and
information.--The limitation under subparagraph (A)
shall apply without regard to whether the third party
possessing the covered customer or subscriber record or
illegitimately obtained information is the third party
that initially obtained or collected, or is the third
party that initially received the disclosure of, the
covered customer or subscriber record or illegitimately
obtained information.
``(3) Limit on sharing between agencies.--An agency of a
governmental entity that is not a law enforcement agency or an
element of the intelligence community may not provide to a law
enforcement agency of a governmental entity or an element of
the intelligence community a covered customer or subscriber
record or illegitimately obtained information that was obtained
from a third party in exchange for anything of value.
``(4) Prohibition on use as evidence.--A covered customer
or subscriber record or illegitimately obtained information
obtained by or provided to a law enforcement agency of a
governmental entity or an element of the intelligence community
in violation of paragraph (2) or (3), and any evidence derived
therefrom, may not 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.
``(5) Minimization procedures.--
``(A) In general.--The Attorney General shall adopt
specific procedures that are reasonably designed to
minimize the acquisition and retention, and prohibit
the dissemination, of information pertaining to a
covered person that is acquired in violation of
paragraph (2) or (3).
``(B) Use by agencies.--If a law enforcement agency
of a governmental entity or element of the intelligence
community acquires information pertaining to a covered
person in violation of paragraph (2) or (3), the law
enforcement agency of a governmental entity or element
of the intelligence community shall minimize the
acquisition and retention, and prohibit the
dissemination, of the information in accordance with
the procedures adopted under subparagraph (A).''.
SEC. 3. REQUIRED DISCLOSURE.
Section 2703 of title 18, United States Code, is amended by adding
at the end the following:
``(i) Covered Customer or Subscriber Records and Illegitimately
Obtained Information.--
``(1) Definitions.--In this subsection, the terms `covered
customer or subscriber record', `illegitimately obtained
information', and `third party' have the meanings given such
terms in section 2702(e).
``(2) Limitation.--Unless a governmental entity obtains an
order in accordance with paragraph (3), the governmental entity
may not require a third party to disclose a covered customer or
subscriber record or any illegitimately obtained information if
a court order would be required for the governmental entity to
require a provider of remote computing service or a provider of
electronic communication service to the public to disclose such
a covered customer or subscriber record or illegitimately
obtained information that is a record of a customer or
subscriber of the provider.
``(3) Orders.--
``(A) In general.--A court may only issue an order
requiring a third party to disclose a covered customer
or subscriber record or any illegitimately obtained
information on the same basis and subject to the same
limitations as would apply to a court order to require
disclosure by a provider of remote computing service or
a provider of electronic communication service to the
public of a record of a customer or subscriber of the
provider.
``(B) Standard.--For purposes of subparagraph (A),
a court shall apply the most stringent standard under
Federal statute or the Constitution of the United
States that would be applicable to a request for a
court order to require a comparable disclosure by a
provider of remote computing service or a provider of
electronic communication service to the public of a
record of a customer or subscriber of the provider.''.
SEC. 4. INTERMEDIARY SERVICE PROVIDERS.
(a) Definition.--Section 2711 of title 18, United States Code, is
amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(5) the term `intermediary service provider' means an
entity or facilities owner or operator that directly or
indirectly delivers, stores, or processes communications for or
on behalf of a provider of electronic communication service to
the public or a provider of remote computing service.''.
(b) Prohibition.--Section 2702(a) of title 18, United States Code,
is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking ``and'' at the end;
(3) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(4) by adding at the end the following:
``(4) an intermediary service provider shall not knowingly
divulge--
``(A) to any person or entity the contents of a
communication while in electronic storage by that
provider; or
``(B) to any governmental entity a record or other
information pertaining to a subscriber to or customer
of, a recipient of a communication from a subscriber to
or customer of, or the sender of a communication to a
subscriber to or customer of, the provider of
electronic communication service to the public or the
provider of remote computing service for, or on behalf
of, which the intermediary service provider directly or
indirectly delivers, transmits, stores, or processes
communications.''.
SEC. 5. LIMITS ON SURVEILLANCE CONDUCTED FOR FOREIGN INTELLIGENCE
PURPOSES OTHER THAN UNDER THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT OF 1978.
(a) In General.--Section 2511(2)(f) of title 18, United States
Code, is amended to read as follows:
``(f)(i)(A) Nothing contained in this chapter, chapter 121 or 206
of this title, or section 705 of the Communications Act of 1934 (47
U.S.C. 151 et seq.) shall be deemed to affect an acquisition or
activity described in clause (B) that is carried out utilizing a means
other than electronic surveillance, as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
``(B) An acquisition or activity described in this clause is--
``(I) an acquisition by the United States Government of
foreign intelligence information from international or foreign
communications that--
``(aa) is acquired pursuant to express statutory
authority; or
``(bb) only includes information of persons who are
not United States persons and are located outside the
United States; or
``(II) a foreign intelligence activity involving a foreign
electronic communications system that--
``(aa) is conducted pursuant to express statutory
authority; or
``(bb) only involves the acquisition by the United
States Government of information of persons who are not
United States persons and are located outside the
United States.
``(ii) The procedures in this chapter, chapter 121, and the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be
the exclusive means by which electronic surveillance, as defined in
section 101 of such Act, and the interception of domestic wire, oral,
and electronic communications may be conducted.''.
(b) Exclusive Means Related to Communications Records.--The Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be
the exclusive means by which electronic communications transactions
records, call detail records, or other information from communications
of United States persons or persons inside the United States are
acquired for foreign intelligence purposes inside the United States or
from a person or entity located in the United States that provides
telecommunications, electronic communication, or remote computing
services.
(c) Exclusive Means Related to Location Information, Web Browsing
History, and Internet Search History.--
(1) Definition.--In this subsection, the term ``location
information'' has the meaning given that term in subsection (e)
of section 2702 of title 18, United States Code, as added by
section 2 of this Act.
(2) Exclusive means.--Title I and sections 303, 304, 703,
704, and 705 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq., 1823, 1824, 1881b, 1881c, 1881d)
shall be the exclusive means by which location information, web
browsing history, and internet search history of United States
persons or persons inside the United States are acquired for
foreign intelligence purposes inside the United States or from
a person or entity located in the United States.
(d) Exclusive Means Related to Fourth Amendment-Protected
Information.--Title I and sections 303, 304, 703, 704, and 705 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.,
1823, 1824, 1881b, 1881c, 1881d) shall be the exclusive means by which
any information, records, data, or tangible things are acquired for
foreign intelligence purposes from a person or entity located in the
United States if the compelled production of such information, records,
data, or tangible things would require a warrant for law enforcement
purposes.
(e) Definition.--In this section, the term ``United States person''
has the meaning given that term in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
SEC. 6. LIMIT ON CIVIL IMMUNITY FOR PROVIDING INFORMATION, FACILITIES,
OR TECHNICAL ASSISTANCE TO THE GOVERNMENT ABSENT A COURT
ORDER.
Section 2511(2)(a) of title 18, United States Code, is amended--
(1) in subparagraph (ii), by striking clause (B) and
inserting the following:
``(B) a certification in writing--
``(I) by a person specified in section 2518(7) or
the Attorney General of the United States;
``(II) that the requirements for an emergency
authorization to intercept a wire, oral, or electronic
communication under section 2518(7) have been met; and
``(III) that the specified assistance is
required,''; and
(2) by striking subparagraph (iii) and inserting the
following:
``(iii) For assistance provided pursuant to a certification under
subparagraph (ii)(B), the limitation on causes of action under the last
sentence of the matter following subparagraph (ii)(B) shall only apply
to the extent that the assistance ceased at the earliest of the time
the application for a court order was denied, the time the
communication sought was obtained, or 48 hours after the interception
began.''.
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