[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1080 Reported in Senate (RS)]
<DOC>
Calendar No. 200
118th CONGRESS
1st Session
S. 1080
To amend the Controlled Substances Act to require electronic
communication service providers and remote computing services to report
to the Attorney General certain controlled substances violations.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 30, 2023
Mr. Marshall (for himself, Mrs. Shaheen, Mr. Durbin, Mr. Grassley, Ms.
Klobuchar, and Mr. Young) introduced the following bill; which was read
twice and referred to the Committee on the Judiciary
September 5, 2023
Reported by Mr. Durbin, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To amend the Controlled Substances Act to require electronic
communication service providers and remote computing services to report
to the Attorney General certain controlled substances violations.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Cooper Davis
Act''.</DELETED>
<DELETED>SEC. 2. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION
SERVICE PROVIDERS AND REMOTE COMPUTING SERVICES FOR
CERTAIN CONTROLLED SUBSTANCES VIOLATIONS.</DELETED>
<DELETED> (a) Amendments to Controlled Substances Act.--</DELETED>
<DELETED> (1) In general.--Part E of the Controlled
Substances Act (21 U.S.C. 871 et seq.) is amended by adding at
the end the following:</DELETED>
<DELETED>``SEC. 521. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION
SERVICE PROVIDERS AND REMOTE COMPUTING SERVICES FOR
CERTAIN CONTROLLED SUBSTANCES VIOLATIONS.</DELETED>
<DELETED> ``(a) Definitions.--In this section, the terms `electronic
communication service', `electronic mail address', `provider', `remote
computing service', and `website' have the meanings given those terms
in section 2258E of title 18, United States Code.</DELETED>
<DELETED> ``(b) Duty To Report.--</DELETED>
<DELETED> ``(1) In general.--</DELETED>
<DELETED> ``(A) Duty.--In order to reduce the
proliferation of the unlawful sale, distribution, or
manufacture (as applicable) of counterfeit controlled
substances and certain controlled substances, a
provider--</DELETED>
<DELETED> ``(i) shall, as soon as reasonably
possible after obtaining actual knowledge of
any facts or circumstances described in
paragraph (2)(A), take the actions described in
subparagraph (B);</DELETED>
<DELETED> ``(ii) may, after obtaining actual
knowledge of any facts or circumstances
described in paragraph (2)(B), take the actions
described in subparagraph (B);</DELETED>
<DELETED> ``(iii) may, if the provider
reasonably believes that any facts or
circumstances described in paragraph (2)(A)
exist, take the actions described in
subparagraph (B); and</DELETED>
<DELETED> ``(iv) shall, if a submission to
the provider by a user, subscriber, or customer
of the provider alleges facts or circumstances
described in paragraph (2) and the provider
upon review has a reasonable belief that the
alleged facts or circumstances exist, take the
actions described in subparagraph
(B).</DELETED>
<DELETED> ``(B) Actions described.--The actions
described in this subparagraph are--</DELETED>
<DELETED> ``(i) providing to the Drug
Enforcement Administration the mailing address,
telephone number, facsimile number, and
electronic mailing address of, and individual
point of contact for, such provider;
and</DELETED>
<DELETED> ``(ii) making a report of such
facts or circumstances to the Drug Enforcement
Administration.</DELETED>
<DELETED> ``(2) Facts and circumstances.--</DELETED>
<DELETED> ``(A) Violations.--The facts or
circumstances described in this subparagraph are any
facts or circumstances that indicate a violation has
occurred involving--</DELETED>
<DELETED> ``(i) the unlawful sale or
distribution of--</DELETED>
<DELETED> ``(I) fentanyl;
or</DELETED>
<DELETED> ``(II) methamphetamine;
or</DELETED>
<DELETED> ``(ii) the unlawful sale,
distribution, or manufacture of a counterfeit
controlled substance.</DELETED>
<DELETED> ``(B) Imminent violations.--The facts or
circumstances described in this subparagraph are any
facts or circumstances that indicate that a violation
described in subparagraph (A) may be planned or
imminent.</DELETED>
<DELETED> ``(c) Contents of Report.--</DELETED>
<DELETED> ``(1) In general.--In an effort to prevent future
violations described in subsection (b)(2)(A), and to the extent
the information is within the custody or control of a provider,
the facts and circumstances included in each report under
subsection (b)(1) may, at the sole discretion of the provider,
except as provided in paragraph (2), include the following
information:</DELETED>
<DELETED> ``(A) Information about the involved
individual.--Information relating to the identity of
any individual who has committed a violation or plans
to commit a violation described in subsection
(b)(2)(A), which may, to the extent reasonably
practicable, include the electronic mail address,
Internet Protocol address, uniform resource locator,
payment information (excluding personally identifiable
information), screen names or monikers for the account
used or any other accounts associated with the
individual, or any other identifying information,
including self-reported identifying
information.</DELETED>
<DELETED> ``(B) Historical reference.--Information
relating to when and how a customer or subscriber of a
provider uploaded, transmitted, or received content
relating to the report or when and how content relating
to the report was reported to or discovered by the
provider, including a date and time stamp and time
zone.</DELETED>
<DELETED> ``(C) Geographic location information.--
Information relating to the geographic location of the
involved individual or website, which may include the
Internet Protocol address or verified address, or, if
not reasonably available, at least one form of
geographic identifying information, including area code
or ZIP Code, provided by the customer or subscriber, or
stored or obtained by the provider, and any information
as to whether a virtual private network was
used.</DELETED>
<DELETED> ``(D) Data relating to certain controlled
substances violations.--Any data, including symbols,
photos, video, icons, or direct messages, relating to
activity involving a violation described in subsection
(b)(2)(A) or other content relating to the incident
such report is regarding.</DELETED>
<DELETED> ``(E) Complete communication.--The
complete communication containing the intent to commit
a violation described in subsection (b)(2)(A),
including--</DELETED>
<DELETED> ``(i) any data or information
regarding the transmission of the
communication; and</DELETED>
<DELETED> ``(ii) any data or other digital
files contained in, or attached to, the
communication.</DELETED>
<DELETED> ``(2) Exception.--In the case of a report under
subsection (b)(1) that is mandated under subparagraph (A)(iv)
of that subsection--</DELETED>
<DELETED> ``(A) the provider shall include in the
report the information submitted to the provider by the
user, subscriber, or customer; and</DELETED>
<DELETED> ``(B) the provider may include in the
report any information described in paragraph (1) that
the user, subscriber, or customer did not submit to the
provider.</DELETED>
<DELETED> ``(d) Forwarding of Report to Other Federal Law
Enforcement Agencies, State and Local Law Enforcement Agencies, and
Foreign Law Enforcement Agencies.--The Drug Enforcement Administration
shall make available each report made under subsection (b)(1) to other
Federal law enforcement agencies, State and local law enforcement
agencies, and foreign law enforcement agencies involved in the
investigation of violations described in subsection (b)(2)(A), unless
the Drug Enforcement Administration will conduct the investigation of
the report.</DELETED>
<DELETED> ``(e) Attorney General Responsibilities.--</DELETED>
<DELETED> ``(1) In general.--The Attorney General shall
enforce this section.</DELETED>
<DELETED> ``(2) Designation of federal agencies.--The
Attorney General may designate a Federal law enforcement agency
or agencies to which the Drug Enforcement Administration shall
forward a report under subsection (d).</DELETED>
<DELETED> ``(3) Designation of foreign agencies.--The
Attorney General may--</DELETED>
<DELETED> ``(A) in consultation with the Secretary
of State, designate foreign law enforcement agencies to
which a report may be forwarded under subsection
(d);</DELETED>
<DELETED> ``(B) establish the conditions under which
such a report may be forwarded to such agencies;
and</DELETED>
<DELETED> ``(C) develop a process for foreign law
enforcement agencies to request assistance from Federal
law enforcement agencies in obtaining evidence related
to a report referred under subsection (d).</DELETED>
<DELETED> ``(4) Reporting designated foreign agencies.--The
Attorney General may maintain and make available to the
Department of State, providers, the Committee on the Judiciary
of the Senate, and the Committee on the Judiciary of the House
of Representatives a list of the foreign law enforcement
agencies designated under paragraph (3).</DELETED>
<DELETED> ``(5) Notification to providers.--</DELETED>
<DELETED> ``(A) In general.--The Drug Enforcement
Administration may notify a provider of the information
described in subparagraph (B), if--</DELETED>
<DELETED> ``(i) a provider notifies the Drug
Enforcement Administration that the provider is
making a report under this section as the
result of a request by a foreign law
enforcement agency; and</DELETED>
<DELETED> ``(ii) the Drug Enforcement
Administration forwards the report described in
clause (i) to--</DELETED>
<DELETED> ``(I) the requesting
foreign law enforcement agency;
or</DELETED>
<DELETED> ``(II) another agency in
the same country designated by the
Attorney General under paragraph
(3).</DELETED>
<DELETED> ``(B) Information described.--The
information described in this subparagraph is--
</DELETED>
<DELETED> ``(i) the identity of the foreign
law enforcement agency to which the report was
forwarded; and</DELETED>
<DELETED> ``(ii) the date on which the
report was forwarded.</DELETED>
<DELETED> ``(C) Notification of inability to forward
report.--If a provider notifies the Drug Enforcement
Administration that the provider is making a report
under this section as the result of a request by a
foreign law enforcement agency and the Drug Enforcement
Administration is unable to forward the report as
described in subparagraph (A)(ii), the Drug Enforcement
Administration shall notify the provider that the Drug
Enforcement Administration was unable to forward the
report.</DELETED>
<DELETED> ``(f) Failure To Report.--A provider that knowingly and
willfully fails to make a report required under subsection (b)(1) shall
be fined--</DELETED>
<DELETED> ``(1) in the case of an initial knowing and
willful failure to make a report, not more than $190,000;
and</DELETED>
<DELETED> ``(2) in the case of any second or subsequent
knowing and willful failure to make a report, not more than
$380,000.</DELETED>
<DELETED> ``(g) Protection of Privacy.--Nothing in this section
shall be construed to require a provider to--</DELETED>
<DELETED> ``(1) monitor any user, subscriber, or customer of
that provider;</DELETED>
<DELETED> ``(2) monitor the content of any communication of
any person described in paragraph (1); or</DELETED>
<DELETED> ``(3) affirmatively search, screen, or scan for
facts or circumstances described in subsections (b) and
(c).</DELETED>
<DELETED> ``(h) Conditions of Disclosure of Information Contained
Within Report.--</DELETED>
<DELETED> ``(1) In general.--Except as provided in paragraph
(2), a law enforcement agency that receives a report under
subsection (d) shall not disclose any information contained in
that report.</DELETED>
<DELETED> ``(2) Permitted disclosures by law enforcement.--A
law enforcement agency may disclose information in a report
received under subsection (d)--</DELETED>
<DELETED> ``(A) to an attorney for the government
for use in the performance of the official duties of
that attorney;</DELETED>
<DELETED> ``(B) to such officers and employees of
that law enforcement agency, as may be necessary in the
performance of their investigative and recordkeeping
functions;</DELETED>
<DELETED> ``(C) to such other government personnel
(including personnel of a State or subdivision of a
State) as are determined to be necessary by an attorney
for the government to assist the attorney in the
performance of the official duties of the attorney in
enforcing Federal criminal law;</DELETED>
<DELETED> ``(D) if the report discloses a violation
of State criminal law, to an appropriate official of a
State or subdivision of a State for the purpose of
enforcing such State law;</DELETED>
<DELETED> ``(E) to a defendant in a criminal case or
the attorney for that defendant to the extent the
information relates to a criminal charge pending
against that defendant;</DELETED>
<DELETED> ``(F) to a provider if necessary to
facilitate response to legal process issued in
connection to a criminal investigation, prosecution, or
post-conviction remedy relating to that report;
and</DELETED>
<DELETED> ``(G) as ordered by a court upon a showing
of good cause and pursuant to any protective orders or
other conditions that the court may impose.</DELETED>
<DELETED> ``(i) Preservation.--</DELETED>
<DELETED> ``(1) In general.--</DELETED>
<DELETED> ``(A) Request to preserve contents.--
</DELETED>
<DELETED> ``(i) In general.--Subject to
clause (ii), for the purposes of this section,
a completed submission by a provider of a
report to the Drug Enforcement Administration
under subsection (b)(1) shall be treated as a
request to preserve the contents provided in
the report, and any data or other digital files
that are reasonably accessible and may provide
context or additional information about the
reported material or person, for 90 days after
the submission to the Drug Enforcement
Administration.</DELETED>
<DELETED> ``(ii) Limitations on extension of
preservation period.--</DELETED>
<DELETED> ``(I) Notification that
dea has forwarded report to foreign law
enforcement agency.--The Drug
Enforcement Administration may not
extend the required period of
preservation under clause (i) on the
basis of a notification by the Drug
Enforcement Administration to the
provider under subsection
(e)(5)(A).</DELETED>
<DELETED> ``(II) Stored
communications act.--The Drug
Enforcement Administration may not
submit a request to a provider to
continue preservation of the contents
of a report or other data described in
clause (i) under section 2703(f) of
title 18, United States Code, beyond
the required period of preservation
under clause (i) of this subparagraph
unless the Drug Enforcement
Administration intends in good faith to
investigate the user, subscriber, or
customer account at issue in the report
or make the report available to another
Federal, State, or local law
enforcement agency.</DELETED>
<DELETED> ``(III) Rule of
construction.--Nothing in subclause
(II) shall preclude another Federal,
State, or local law enforcement agency
from seeking continued preservation of
the contents of a report or other data
described in clause (i) under section
2703(f) of title 18, United States
Code.</DELETED>
<DELETED> ``(B) Notification to user.--A provider
may not notify a user, subscriber, or customer of the
provider of a preservation request described in
subparagraph (A) unless--</DELETED>
<DELETED> ``(i) the provider has notified
the Drug Enforcement Administration of its
intent to provide that notice; and</DELETED>
<DELETED> ``(ii) 5 business days have
elapsed since the notification under clause
(i).</DELETED>
<DELETED> ``(2) Protection of preserved materials.--A
provider preserving materials under this section shall maintain
the materials in a secure location and take appropriate steps
to limit access to the materials by agents or employees of the
service to that access necessary to comply with the
requirements of this subsection.</DELETED>
<DELETED> ``(3) Authorities and duties not affected.--
Nothing in this section shall be construed as replacing,
amending, or otherwise interfering with the authorities and
duties under section 2703 of title 18, United States
Code.''.</DELETED>
<DELETED> (2) Technical and conforming amendment.--The table
of contents for the Controlled Substances Act (21 U.S.C. 801 et
seq.) is amended by inserting after the item relating to
section 520 the following:</DELETED>
<DELETED>``Sec. 521. Reporting requirements of electronic communication
service providers and remote computing
services for certain controlled substances
violations.''.
<DELETED> (b) Conforming Amendments to Stored Communications Act.--
</DELETED>
<DELETED> (1) In general.--Section 2702 of title 18, United
States Code, is amended--</DELETED>
<DELETED> (A) in subsection (b)--</DELETED>
<DELETED> (i) in paragraph (8), by striking
``or'' at the end;</DELETED>
<DELETED> (ii) in paragraph (9), by striking
the period at the end and inserting ``; or'';
and</DELETED>
<DELETED> (iii) by adding at the end the
following:</DELETED>
<DELETED> ``(10) to a law enforcement agency, in connection
with a report submitted thereto under section 521 of the
Controlled Substances Act.''; and</DELETED>
<DELETED> (B) in subsection (c)--</DELETED>
<DELETED> (i) in paragraph (6), by striking
``or'' at the end;</DELETED>
<DELETED> (ii) in paragraph (7), by striking
the period at the end and inserting ``; or'';
and</DELETED>
<DELETED> (iii) by adding at the end the
following:</DELETED>
<DELETED> ``(8) to a law enforcement agency, in connection
with a report submitted thereto under section 521 of the
Controlled Substances Act.''.</DELETED>
<DELETED> (2) Technical amendment.--Paragraph (7) of section
2702(b) of title 18, United States Code, is amended to read as
follows:</DELETED>
<DELETED> ``(7) to a law enforcement agency if the
contents--</DELETED>
<DELETED> ``(A) were inadvertently obtained by the
service provider; and</DELETED>
<DELETED> ``(B) appear to pertain to the commission
of a crime;''.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Cooper Davis Act''.
SEC. 2. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION SERVICE
PROVIDERS AND REMOTE COMPUTING SERVICES FOR CERTAIN
CONTROLLED SUBSTANCES VIOLATIONS.
(a) Amendments to Controlled Substances Act.--
(1) In general.--Part E of the Controlled Substances Act
(21 U.S.C. 871 et seq.) is amended by adding at the end the
following:
``reporting requirements of electronic communication service providers
and remote computing services for certain controlled substances
violations
``Sec. 521. (a) Definitions.--In this section--
``(1) the term `electronic communication service' has the
meaning given that term in section 2510 of title 18, United
States Code;
``(2) the term `electronic mail address' has the meaning
given that term in section 3 of the CAN-SPAM Act of 2003 (15
U.S.C. 7702);
``(3) the term `Internet' has the meaning given that term
in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 151
note);
``(4) the term `provider' means an electronic communication
service provider or remote computing service;
``(5) the term `remote computing service' has the meaning
given that term in section 2711 of title 18, United States
Code; and
``(6) the term `website' means any collection of material
placed in a computer server-based file archive so that it is
publicly accessible, over the Internet, using hypertext
transfer protocol or any successor protocol.
``(b) Duty to Report.--
``(1) General duty.--In order to reduce the proliferation
of the unlawful sale, distribution, or manufacture (as
applicable) of counterfeit substances and certain controlled
substances, a provider shall, as soon as reasonably possible
after obtaining actual knowledge of any facts or circumstances
described in paragraph (2), and in any event not later than 60
days after obtaining such knowledge, submit to the Drug
Enforcement Administration a report containing--
``(A) the mailing address, telephone number,
facsimile number, and electronic mailing address of,
and individual point of contact for, such provider;
``(B) information described in subsection (c)
concerning such facts or circumstances; and
``(C) for purposes of subsection (j), information
indicating whether the facts or circumstances were
discovered through content moderation conducted by a
human or via a non-human method, including use of an
algorithm, machine learning, or other means.
``(2) Facts or circumstances.--The facts or circumstances
described in this paragraph are any facts or circumstances
establishing that a crime is being or has already been
committed involving--
``(A) creating, manufacturing, distributing,
dispensing, or possession with intent to manufacture,
distribute, or dispense--
``(i) fentanyl; or
``(ii) methamphetamine;
``(B) creating, manufacturing, distributing,
dispensing, or possession with intent to manufacture,
distribute, or dispense a counterfeit substance,
including a counterfeit substance purporting to be a
prescription drug; or
``(C) offering, dispensing, or administering an
actual or purported prescription pain medication or
prescription stimulant by any individual or entity that
is not a practitioner or online pharmacy, including an
individual or entity that falsely claims to be a
practitioner or online pharmacy.
``(3) Permitted actions based on reasonable belief.--In
order to reduce the proliferation of the unlawful sale,
distribution, or manufacture (as applicable) of counterfeit
substances and certain controlled substances, if a provider has
a reasonable belief that facts or circumstances described in
paragraph (2) exist, the provider may submit to the Drug
Enforcement Administration a report described in paragraph (1).
``(c) Contents of Report.--
``(1) In general.--To the extent the information is within
the custody or control of a provider, the facts or
circumstances included in each report under subsection (b)(1)--
``(A) shall include, to the extent that it is
applicable and reasonably available, information
relating to the account involved in the commission of a
crime described in subsection (b)(2), such as the name,
address, electronic mail address, user or account
identification, Internet Protocol address, uniform
resource locator, screen names or monikers for the
account used or any other accounts associated with the
account user, or any other identifying information,
including self-reported identifying information, but
not including the contents of a wire communication or
electronic communication, as those terms are defined in
section 2510 of title 18, United States Code, except as
provided in subparagraph (B) of this paragraph; and
``(B) may, at the sole discretion of the provider,
include the information described in paragraph (2) of
this subsection.
``(2) Other information.--The information referred to in
paragraph (1)(B) is the following:
``(A) Historical reference.--Information relating
to when and how a user, subscriber, or customer of a
provider uploaded, transmitted, or received content
relating to the report or when and how content relating
to the report was reported to or discovered by the
provider, including a date and time stamp and time
zone.
``(B) Geographic location information.--Information
relating to the geographic location of the involved
individual or website, which may include the Internet
Protocol address or verified address, or, if not
reasonably available, at least one form of geographic
identifying information, including area code or ZIP
Code, provided by the user, subscriber, or customer, or
stored or obtained by the provider, and any information
as to whether a virtual private network was used.
``(C) Data relating to facts or circumstances.--Any
data, including symbols, photos, video, icons, or
direct messages, relating to activity involving the
facts or circumstances described in subsection (b)(2)
or other content relating to the crime.
``(D) Complete communication.--The complete
communication containing the information of the crime
described in subsection (b)(2), including--
``(i) any data or information regarding the
transmission of the communication; and
``(ii) any data or other digital files
contained in, or attached to, the
communication.
``(3) User, subscriber, or customer submitted reports.--In
the case of a report under subsection (b)(3), the provider may,
at its sole discretion, include in the report information
submitted to the provider by a user, subscriber, or customer
alleging facts or circumstances described in subsection (b)(2)
if the provider, upon review, has a reasonable belief that the
alleged facts or circumstances exist.
``(d) Handling of Reports.--Upon receipt of a report submitted
under subsection (b), the Drug Enforcement Administration--
``(1) shall conduct a preliminary review of such report;
and
``(2) after completing the preliminary review, shall--
``(A) conduct further investigation of the report,
which may include making the report available to other
Federal, State, or local law enforcement agencies
involved in the investigation of crimes described in
subsection (b)(2), if the Drug Enforcement
Administration determines that the report facially
contains sufficient information to warrant and permit
further investigation; or
``(B) conclude that no further investigative steps
are warranted or possible, or that insufficient
evidence exists to make a determination, and close the
report.
``(e) Attorney General Responsibilities.--
``(1) In general.--The Attorney General shall enforce this
section.
``(2) Designation of federal agencies.--The Attorney
General may designate a Federal law enforcement agency or
agencies to which the Drug Enforcement Administration may
forward a report under subsection (d).
``(3) Data minimization requirements.--The Attorney General
shall take reasonable measures to--
``(A) limit the storage of a report submitted under
subsection (b) and its contents to the amount that is
necessary to carry out the investigation of crimes
described in subsection (b)(2); and
``(B) store a report submitted under subsection (b)
and its contents only as long as is reasonably
necessary to carry out an investigation of crimes
described in subsection (b)(2) or make the report
available to other agencies under subsection (d)(2)(A),
after which time the report and its contents shall be
deleted unless the preservation of a report has future
evidentiary value.
``(f) Failure to Comply With Requirements.--
``(1) Criminal penalty.--
``(A) Offense.--It shall be unlawful for a provider
to knowingly fail to submit a report required under
subsection (b)(1).
``(B) Penalty.--A provider that violates
subparagraph (A) shall be fined--
``(i) in the case of an initial violation,
not more than $190,000; and
``(ii) in the case of any second or
subsequent violation, not more than $380,000.
``(2) Civil penalty.--In addition to any other available
civil or criminal penalty, a provider shall be liable to the
United States Government for a civil penalty in an amount not
less than $50,000 and not more than $100,000 if the provider
knowingly submits a report under subsection (b) that--
``(A) contains materially false or fraudulent
information; or
``(B) omits information described in subsection
(c)(1)(A) that is reasonably available.
``(g) Protection of Privacy.--Nothing in this section shall be
construed to--
``(1) require a provider to monitor any user, subscriber,
or customer of that provider;
``(2) require a provider to monitor the content of any
communication of any person described in paragraph (1);
``(3) require a provider to affirmatively search, screen,
or scan for facts or circumstances described in subsection
(b)(2); or
``(4) permit actual knowledge to be proven based solely on
a provider's decision not to engage in additional verification
or investigation to discover facts and circumstances that are
not readily apparent, so long as the provider does not
deliberately blind itself to those violations.
``(h) Conditions of Disclosure of Information Contained Within
Report.--
``(1) In general.--Except as provided in paragraph (2), a
law enforcement agency that receives a report under subsection
(d) shall not disclose any information contained in that
report.
``(2) Permitted disclosures by law enforcement.--A law
enforcement agency may disclose information in a report
received under subsection (d)--
``(A) to an attorney for the government for use in
the performance of the official duties of that
attorney, including providing discovery to a defendant;
``(B) to such officers and employees of that law
enforcement agency, as may be necessary in the
performance of their investigative and recordkeeping
functions;
``(C) to such other government personnel (including
personnel of a State or subdivision of a State) as are
determined to be necessary by an attorney for the
government to assist the attorney in the performance of
the official duties of the attorney in enforcing
Federal criminal law;
``(D) if the report discloses an apparent violation
of State criminal law, to an appropriate official of a
State or subdivision of a State for the purpose of
enforcing such State law;
``(E) to a defendant in a criminal case or the
attorney for that defendant to the extent the
information relates to a criminal charge pending
against that defendant;
``(F) to a provider if necessary to facilitate
response to legal process issued in connection to a
criminal investigation, prosecution, or post-conviction
remedy relating to that report;
``(G) as ordered by a court upon a showing of good
cause and pursuant to any protective orders or other
conditions that the court may impose; and
``(H) in order to facilitate the enforcement of the
penalties authorized under subsection (f).
``(i) Preservation.--
``(1) In general.--
``(A) Request to preserve contents.--
``(i) In general.--Subject to clause (ii),
for the purposes of this section, a completed
submission by a provider of a report to the
Drug Enforcement Administration under
subsection (b)(1) shall be treated as a request
to preserve the contents provided in the
report, and any data or other digital files
that are reasonably accessible and may provide
context or additional information about the
reported material or person, for 90 days after
the submission to the Drug Enforcement
Administration.
``(ii) Limitations on extension of
preservation period.--
``(I) Stored communications act.--
The Drug Enforcement Administration may
not submit a request to a provider to
continue preservation of the contents
of a report or other data described in
clause (i) under section 2703(f) of
title 18, United States Code, beyond
the required period of preservation
under clause (i) of this subparagraph
unless the Drug Enforcement
Administration has an active or pending
investigation involving the user,
subscriber, or customer account at
issue in the report.
``(II) Rule of construction.--
Nothing in subclause (I) shall preclude
another Federal, State, or local law
enforcement agency from seeking
continued preservation of the contents
of a report or other data described in
clause (i) under section 2703(f) of
title 18, United States Code.
``(B) Notification to user.--A provider may not
notify a user, subscriber, or customer of the provider
of a preservation request described in subparagraph (A)
unless--
``(i) the provider has notified the Drug
Enforcement Administration of its intent to
provide that notice; and
``(ii) 45 business days have elapsed since
the notification under clause (i).
``(2) Protection of preserved materials.--A provider
preserving materials under this section shall maintain the
materials in a secure location and take appropriate steps to
limit access to the materials by agents or employees of the
service to that access necessary to comply with the
requirements of this subsection.
``(3) Authorities and duties not affected.--Nothing in this
section shall be construed as replacing, amending, or otherwise
interfering with the authorities and duties under section 2703
of title 18, United States Code.
``(4) Relation to reporting requirement.--Submission of a
report as required by subsection (b)(1) does not satisfy the
obligations under this subsection.
``(j) Annual Report.--Not later than 1 year after the date of
enactment of the Cooper Davis Act, and annually thereafter, the Drug
Enforcement Administration shall publish a report that includes, for
the reporting period--
``(1) the total number of reports received from providers
under subsection (b)(1);
``(2) the number of reports received under subsection
(b)(1) disaggregated by--
``(A) the provider on whose electronic
communication service or remote computing service the
crime for which there are facts or circumstances
occurred; and
``(B) the subsidiary of a provider, if any, on
whose electronic communication service or remote
computing service the crime for which there are facts
or circumstances occurred;
``(3) the number of reports received under subsection
(b)(1) that led to convictions in cases investigated by the
Drug Enforcement Administration;
``(4) the number of reports received under subsection
(b)(1) that lacked actionable information;
``(5) the number of reports received under subsection
(b)(1) where the facts or circumstances of a crime were
discovered through--
``(A) content moderation conducted by a human; or
``(B) a non-human method including use of an
algorithm, machine learning, or other means;
``(6) the number of reports received under subsection
(b)(1) that were made available to other law enforcement
agencies, disaggregated by--
``(A) the number of reports made available to
Federal law enforcement agencies;
``(B) the number of reports made available to State
law enforcement agencies; and
``(C) the number of reports made available to local
law enforcement agencies; and
``(7) the number of requests to providers to continue
preservation of the contents of a report or other data
described in subsection (i)(1)(A)(i) submitted by the Drug
Enforcement Administration under section 2703(f) of title 18,
United States Code.
``(k) Prohibition on Submission of User, Subscriber, Customer, or
Anonymous Reports by Law Enforcement.--
``(1) In general.--No Federal, Tribal, State, or local law
enforcement officer acting in an official capacity may submit a
report to a provider or arrange for another individual to
submit a report to a provider on behalf of the officer under
this section.
``(2) Remedy for violation.--No part of the contents of a
provider's report made under subsection (b)(1) or (b)(3) and no
evidence derived therefrom may be received in evidence in any
trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, legislative
committee, or other authority of the United States, a State, or
a political subdivision thereof if that provider report
resulted from an action prohibited by paragraph (1) of this
subsection.
``(l) Exemption for Providers of Broadband Internet Access
Service.--Subsections (b) through (k) shall not apply to a provider of
broadband internet access service, as that term is defined in section
8.1(b) of title 47, Code of Federal Regulations (or any successor
regulation), insofar as the provider is acting as a provider of such
service.''.
(2) Technical and conforming amendment.--The table of
contents for the Controlled Substances Act (21 U.S.C. 801 et
seq.) is amended by inserting after the item relating to
section 520 the following:
``Sec. 521. Reporting requirements of electronic communication service
providers and remote computing services for
certain controlled substances
violations.''.
(b) Conforming Amendments to Stored Communications Act.--
(1) In general.--Section 2702 of title 18, United States
Code, is amended--
(A) in subsection (b)--
(i) in paragraph (8), by striking ``or'' at
the end;
(ii) in paragraph (9), by striking the
period at the end and inserting ``; or''; and
(iii) by adding at the end the following:
``(10) to the Drug Enforcement Administration, in
connection with a report submitted thereto under section 521 of
the Controlled Substances Act.''; and
(B) in subsection (c)--
(i) in paragraph (6), by striking ``or'' at
the end;
(ii) in paragraph (7), by striking the
period at the end and inserting ``; or''; and
(iii) by adding at the end the following:
``(8) to the Drug Enforcement Administration, in connection
with a report submitted thereto under section 521 of the
Controlled Substances Act.''.
(2) Technical amendment.--Paragraph (7) of section 2702(b)
of title 18, United States Code, is amended to read as follows:
``(7) to a law enforcement agency if the contents--
``(A) were inadvertently obtained by the service
provider; and
``(B) appear to pertain to the commission of a
crime;''.
SEC. 3. SEVERABILITY.
If any provision of this Act or amendment made by this Act, or the
application of such a provision or amendment to any person or
circumstance, is held to be unconstitutional, the remaining provisions
of this Act and amendments made by this Act, and the application of
such provision or amendment to any other person or circumstance, shall
not be affected thereby.
Calendar No. 200
118th CONGRESS
1st Session
S. 1080
_______________________________________________________________________
A BILL
To amend the Controlled Substances Act to require electronic
communication service providers and remote computing services to report
to the Attorney General certain controlled substances violations.
_______________________________________________________________________
September 5, 2023
Reported with an amendment