[Senate Report 113-34]
[From the U.S. Government Printing Office]


                                                        Calendar No. 66
113th Congress                                                   Report
                                 SENATE
 1st Session                                                     113-34

======================================================================



 
      ELECTRONIC COMMUNICATIONS PRIVACY ACT AMENDMENTS ACT OF 2013

                                _______
                                

                  May 16, 2013.--Ordered to be printed

                                _______
                                

            Mr. Leahy, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 607]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 607), a bill to improve the provisions relating to the 
privacy of electronic communications, having considered the 
same, reports favorably thereon, with an amendment, and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Electronic Communications Privacy 
     Act Amendments Act of 2013.......................................2
 II. History of the Bill and Committee Consideration..................7
III. Section-by-Section Summary of the Bill...........................8
 IV. Congressional Budget Office Cost Estimate.......................10
  V. Regulatory Impact Evaluation....................................11
 VI. Conclusion......................................................11
VII. Additional Views of Senators Grassley and Sessions..............12
VIII.Changes to Existing Law Made by the Bill, as Reported...........20


I. Background and Purpose of the Electronic Communications Privacy Act 
                         Amendments Act of 2013


        A. THE ELECTRONIC COMMUNICATIONS PRIVACY ACT AMENDMENTS

    The Electronic Communications Privacy Act (``ECPA'') 
amended the Omnibus Crime Control and Safe Streets Act to 
protect against the unauthorized interception of electronic 
communications. When Senator Leahy introduced ECPA with Senator 
Mathias on June 19, 1986, he said: ``The Electronic 
Communications Privacy Act provides standards by which law 
enforcement agencies may obtain access to both electronic 
communications and the records of an electronic communications 
system. These provisions are designed to protect legitimate law 
enforcement needs while minimizing intrusions on the privacy of 
system users as well as the business needs of electronic 
communications system providers.''\1\ For almost three decades, 
ECPA has been the premier privacy law protecting Americans from 
unauthorized Government intrusions into their private 
electronic communications.
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    \1\See Cong. Rec., June 19, 1986 at page S7993.
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    The Electronic Communications Privacy Act requires that the 
Government obtain a court order, based upon probable cause, in 
order to intercept wireless and data communications. The law 
also requires that the Government obtain a search warrant in 
order to compel a third-party service provider to disclose the 
content of email, or other electronic communications, that the 
provider maintains in electronic storage. However, this search 
warrant requirement for email applies only if the email is 180 
days old or less. Under ECPA, an email is presumed to be 
abandoned after 180 days and the law allows the Government to 
compel the disclosure of older email with either a subpoena or 
a court order that is issued upon a finding that there are 
specific and articulable facts demonstrating that the 
information sought is relevant to a criminal investigation. The 
ECPA also allows the Government to use a subpoena or court 
order to compel disclosure of documents--regardless of their 
age--that a user stores in the Internet ``cloud.''\2\
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    \2\See 18 U.S.C. Sec. 2703(d).
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    At the time that Congress enacted ECPA more than 25 years 
ago, Congress assumed that most Americans would periodically 
access their email accounts and download any emails that they 
wished to read, and that third-party service providers would 
subsequently delete any email stored on their servers. In fact, 
Congress believed that the most extended period of time that a 
service provider might store an email would be for six months. 
After almost three decades, new technologies--such as the 
Internet, social networking sites and cloud computing--have 
changed how Americans use and store email today. Storing 
documents and other information electronically has become much 
less expensive and mobile technologies permit users to access 
stored documents wherever the user chooses to access the 
Internet. The digital privacy protections that the Congress put 
in place by enacting ECPA have not kept pace with these 
changes.
    In March 2010, a diverse coalition of privacy and civil 
liberties advocates, major technology companies, think tanks, 
and academics wrote to Chairman Leahy to urge the Committee to 
begin work on reforming the Electronic Communications Privacy 
Act to reflect the realities of the digital age. The aptly 
named ``Digital Due Process'' coalition argued that ECPA has 
been out-paced by changes in technology and the growth of email 
as a primary means of communicating. The Committee held the 
first of several hearings and briefings on ECPA reform in 
September 2010.
    On January 11, 2011, Chairman Leahy announced that his 
legislative agenda for the 112th Congress would include 
legislation to update the Electronic Communications Privacy Act 
to better protect Americans' digital privacy. In April 2011, 
the Committee held a second hearing on ECPA reform effort that 
focused specifically on the perspectives of the Departments of 
Justice and Commerce on proposed updates to the law.\3\ On May 
11, 2011, Chairman Leahy introduced the Electronic 
Communications Privacy Act Amendments Act of 2011, S.1011, 
legislation that would, among other things, update ECPA to 
require a search warrant for the Government to access the 
contents of any email obtained from a third-party service 
provider. On September 20, 2012, Chairman Leahy offered this 
portion of his ECPA reform bill as an amendment in the nature 
of a substitute to H.R. 2471. The Committee favorably reported 
this legislation on November 29, 2012.
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    \3\Although the Obama administration did not take an official 
position on the legislative proposals to update ECPA, the Committee 
received technical comments and feedback on these proposals from the 
Departments of Justice and Commerce and other affected Federal 
agencies.
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    Reform of the Electronic Communications Privacy Act 
remained a top legislative priority for the Committee during 
the 113th Congress. On March 18, 2013, Chairman Leahy and 
Senator Mike Lee introduced the Electronic Communications 
Privacy Act Amendments Act of 2013, S. 607. The legislation 
establishes a uniform search warrant requirement for the 
Government to compel the disclosure of all email content when 
email is stored with a third-party service provider. This 
bipartisan privacy legislation seeks to carefully balance the 
privacy expectations of American citizens, the legitimate needs 
of law enforcement agencies and the interests of the American 
technology sector. The legislation is substantially identical 
to ECPA reform proposal the Senate Judiciary Committee 
favorably reported in November 2012.
    The Committee recognizes that most Americans regularly use 
email in their professional and personal lives for confidential 
communications of a business or personal nature. The Committee 
also recognizes that there is growing uncertainty about the 
constitutionality of the provisions in ECPA that allow the 
Government to obtain certain email content without a search 
warrant.\4\ The absence of a clear legal standard for access to 
electronic communications content not only endangers privacy 
rights, but also endangers the admissibility of evidence in 
criminal and other legal proceedings. Accordingly, the 
Committee has determined that the law must be updated to keep 
pace with the advances in technology in order to ensure the 
continued vitality of the Fourth Amendment protections for 
email and other electronic communications content.
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    \4\In 2010, the United States Court of Appeals for the Sixth 
Circuit held that use of a subpoena or court order under section 2703 
of ECPA to obtain the contents of emails violated the Fourth 
Amendment's prohibition against warrantless searches. See United States 
v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010).
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    The reforms in the bill will better safeguard the privacy 
of email and other electronic communications while allowing law 
enforcement to carry out its important mission. The bill 
contains several important provisions to ensure that the 
reforms to ECPA do not hinder law enforcement. First, the bill 
preserves the exceptions to the warrant requirement under 
existing law. For example under current law, the Government 
does not need a warrant in an emergency situation involving 
danger of death or serious physical injury, or when a crime is 
being committed.\5\ Second, to protect the integrity of ongoing 
investigations, the bill adds a new notice requirement to the 
law that requires service providers to notify the Government of 
their intent to inform a customer about a disclosure of 
electronic communications information at least three business 
days before giving such notice.
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    \5\See 18 U.S.C. 2702(b).
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    In addition, the bill does not alter the legal authorities 
that the Government currently uses to obtain electronic 
communications content in national security matters. 
Specifically, the bill provides that the search warrant 
requirement does not apply to other Federal criminal or 
national security laws, including Title III of the Omnibus 
Crime Control and Safe Streets Act of 1986 (commonly known as 
the ``Wiretap Act'') and the Foreign Intelligence Surveillance 
Act of 1978 (commonly known as ``FISA'')). The Committee does 
not intend for the bill to alter other existing statutory 
authorities pursuant to which the Federal Government collects 
electronic communications and related information, including 
surveillance and other intelligence authorities. Accordingly, 
the bill does not preclude any other legal authorities that 
permit the acquisition by the United States Government of the 
contents of wire or electronic communications, or other records 
or information of a subscriber or customer of any electronic 
communications service or remote computing service, pursuant to 
other lawful authorities, including in Title 18 (e.g., chapters 
119, 121 or 206), Title 50 (e.g., the Foreign Intelligence 
Surveillance Act of 1978, as amended), or any other provision 
of Federal law.
    The bill also includes several provisions to help civil 
enforcement agencies, such as the Federal Trade Commission and 
the Securities and Exchange Commission, investigate corporate 
wrongdoing and protect consumers. Section 3 of the bill adds 
civil discovery subpoenas to the existing tools that the 
Government may use to obtain non-content information under 
ECPA. Section 3 of the bill also makes clear that the 
Government may employ administrative, civil discovery and grand 
jury subpoena to obtain corporate email and other electronic 
communications directly from a corporate entity, when such 
communications are contained on an internal email system.
    In addition, the bill preserves the legal tools in existing 
law for civil enforcement agencies to obtain electronic 
communications information. For example, the bill preserves the 
ability for civil enforcement agencies to issue subpoenas to a 
service provider to compel the disclosure of email account 
information (i.e. non-content information). The bill also 
preserves the ability of such agencies to compel the target of 
a civil enforcement investigation to produce electronic 
communications content information to the Government, including 
electronic communications content information that is stored 
with a third party service provider. Lastly, to address 
concerns about the potential destruction of evidence, the bill 
preserves the tools in current law that allow the Government, 
including civil enforcement agencies, to require a service 
provider to preserve any evidence in its possession to included 
stored email content.\6\
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    \6\See 18 U.S.C. 2703(f).
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    The objections to the bill raised in the additional view 
are misguided and belied by a plain reading of the bill and 
current law. First, the additional views incorrectly suggest 
that the bill may adversely impact criminal investigations. As 
discussed above, current law provides numerous exceptions to 
the warrant requirement in ECPA to accommodate emergencies, 
child exploitation matters and other criminal activity.\7\ The 
bill preserves all of these exceptions. The additional views 
also acknowledge that the well-established exigent 
circumstances exception to the warrant requirement provides a 
separate legal ground for the Government to obtain electronic 
communications information without a warrant in time sensitive 
situations.\8\ The authors provide no support to substantiate 
their claim that these longstanding authorities are inadequate.
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    \7\See 18 U.S.C. 2702(b)(6), (7) and (8).
    \8\See, e.g., Kentucky v. King, 563 U.S.___ (2011) (exception to 
warrant requirement applies when the exigencies of the situation make 
the needs of law enforcement so compelling that a warrantless search is 
objectively reasonable under the Fourth Amendment.)
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    The additional views also incorrectly suggest that the bill 
would adversely impact the important work of the Securities 
Exchange Commission and other civil enforcement agencies. As 
discussed above, under current law, civil enforcement agencies 
can use subpoenas to among other things--(1) compel the 
disclosure of stored communications from the targets of their 
investigations, (2) obtain crucial customer records from 
service providers and (3) require third-party service providers 
to preserve any electronic communications information sought by 
the Government. Contrary to the assertion in the additional 
views, the bill does not eliminate administrative subpoenas. In 
fact, the bill augments the subpoena authority of civil 
agencies by permitting these agencies, for the first time, to 
use civil discovery subpoenas to obtain records under ECPA. 
Moreover, creating a broad statutory exception to the warrant 
requirement for civil enforcement matters would eviscerate the 
important privacy protections in the bill and in current law. 
Such an exception would apply to all kinds of civil agencies at 
the Federal, State and local level, including the Internal 
Revenues Service. Such an exception could also circumvent the 
warrant requirement in the bill, by permitting the Government 
to use information obtained under the civil exception in a 
related criminal matter. The Securities and Exchange Commission 
and numerous other civil enforcement agencies have successfully 
performed their duties by relying upon the civil tools already 
in the law to acquire stored email content for decades, while 
complying with the existing warrant requirement in the law for 
emails that are less than 180 days old. There is no reason to 
believe that this would not continue to be the case with a 
uniform warrant requirement for all electronic communications 
content.\9\
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    \9\To the extent that the Securities and Exchange Commission 
requires additional legal authorities to compel the disclosure of 
information, such authorities should be considered when Congress 
reviews the laws enacted to govern how that agency investigates and 
enforces civil regulatory matters. See, e.g., Section 19(c) of the 
Securities Act of 1934 (15 U.S.C. 77(a), et seq.); Section 21(b) of the 
Securities and Exchange Act (15 U.S.C. 78a, et seq.); Section 209(b) of 
the Investment Advisers Act (15 U.S.C. 80b-1, et seq.); and Section 
42(b) of the Investment Company Act (15 U.S.C 80a-1, et seq.).
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    Lastly, the additional reviews raise the prospect of adding 
a statutory time limit to the bill. There is universal 
agreement on the Committee that service providers should 
provide timely responses to requests from law enforcement when 
proper legal process has been obtained. The Committee believes 
that the courts, which have familiarity with the specific facts 
and circumstances of particular investigation, are in the best 
position to address such timeliness issues.\10\ Therefore, the 
bill appropriately recognizes the long-standing practice of 
leaving such case-by-case decisions to the courts.\11\
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    \10\A statutory time limit imposed by Congress could be very 
harmful to law enforcement, because such a requirement could cause 
communications service providers make disclosures to the Government 
based upon a ``first come, first served'' basis, without regards to the 
specific facts and needs of law enforcement in particular case.
    \11\The additional views also propose that the Committee examine 
other reforms to ECPA, including clarifying the legal standard for law 
enforcement to access geolocation information. In May 2011, Chairman 
Leahy introduced legislation to update ECPA to address geolocation 
information and other electronic privacy issues. The Committee held two 
hearings on these forms and the Committee will continue to work on 
these issues.
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    The carefully balanced ECPA reforms in the bill have 
bipartisan support on the Committee, as well as the support of 
a broad coalition of more than 100 privacy, civil liberties, 
civil rights and technology organizations from across the 
political spectrum. The organizations and individuals below 
support the principles embodied in the legislation:
    Technology Industry and Trade Associations: Adobe, AOL, the 
Chamber of Commerce, eBay, Facebook, IBM, LinkedIn, Microsoft, 
Symantec, Verizon, Business Software Alliance, Computer and 
Communications Industry Association, Newspaper Association of 
America, Software & Information Industry Alliance, and 
TechAmerica.
    Privacy, civil liberties and civil rights communities: 
American Civil Liberties Union, Americans for Tax Reform, 
American Library Association, Center for Constitutional Rights, 
Center for Democracy & Technology, Competitive Enterprise 
Institute, The Constitution Project, Electronic Frontier 
Foundation, the Heritage Foundation, The Leadership Conference 
on Civil and Human Rights, Liberty Coalition, Mexican American 
Legal Defense and Educational Fund, Muslim Legal Fund of 
America, NAACP, National Association of Criminal Defense 
Lawyers, National Hispanic Media Coalition, National Urban 
League, and TechFreedom.
    Law Enforcement Community: William K. Sessions, Former 
Director of the Federal Bureau of Investigation (1987-1993); 
Zachary W. Carter, U.S. Attorney, Eastern District of New York 
(1993-1999); W. Thomas Dillard, Assistant U.S. Attorney, 
Eastern District of Tennessee (1967-1976, 1978-1983), U.S. 
Attorney, Northern District of Florida (1983-1986); Saul A. 
Green, U.S. Attorney, Eastern District of Michigan (1994-2001); 
Rodger A. Heaton, U.S. Attorney, Central District of Illinois 
(2005-2009); A. Melvin McDonald, U.S. Attorney, District of 
Arizona (1981-1985); Jerome F. O'Neill, U.S. Attorney, District 
of Vermont (1981), First Assistant U.S. Attorney, District of 
Vermont (1975-1981); Stephen M. Orlofsky, U.S. District Judge, 
District of New Jersey (1996-2003); U.S. Magistrate Judge, 
District of New Jersey (1976-1980); and Ron Woods, U.S. 
Attorney, Southern District of Texas (1990-1993).

          II. History of the Bill and Committee Consideration


                      A. INTRODUCTION OF THE BILL

    On March 18, 2013, Senators Leahy and Lee introduced S. 
607--the Electronic Communications Privacy Act Amendments Act 
of 2013.

                       B. COMMITTEE CONSIDERATION

    Chairman Leahy placed S. 607 on the Committee's executive 
business agenda on April 18, 2013. The Committee considered and 
favorably reported this legislation on April 25, 2013.
    The Committee has held two hearings related to S. 607. On 
September 22, 2010, the Judiciary Committee held a hearing 
entitled, ``The Electronic Communications Privacy Act: 
Promoting Security and Protecting Privacy in the Digital Age.'' 
The hearing examined several gaps in this digital privacy law 
that have resulted from changes in technology. The witnesses 
for this hearing were: Cameron F. Kerry, General Counsel, 
United States Department of Commerce; James A. Baker, Associate 
Deputy Attorney General, United States Department of Justice; 
James X. Dempsey, Vice President for Public Policy, Center for 
Democracy and Technology; Brad Smith, General Counsel and 
Senior Vice President, Legal and Corporate Affairs, Microsoft 
Corporation; and Jamil N. Jaffer, Attorney, Washington, D.C. 
During this hearing, Senator Leahy called for Congress to work 
on bipartisan legislation to update ECPA to meet the privacy 
demands of the digital age.
    On April 6, 2011, the Judiciary Committee held a hearing 
entitled, ``The Electronic Communications Privacy Act: 
Government Perspectives on Privacy in the Digital Age.'' This 
hearing examined potential updates to the Electronic 
Communications Privacy Act to address inconsistencies in that 
law, changes in technology, and new threats to privacy and 
cybersecurity. The witnesses for this hearing were: Cameron 
Kerry, General Counsel, United States Department of Commerce, 
and James Baker, Associate Deputy Attorney General, United 
States Department of Justice.
    In addition, on November 29, 2012, the Committee considered 
and favorably reported legislation substantially similar to S. 
607 as part of H.R. 2471, the Video Privacy Protection Act 
Amendments Act of 2012.
    On April 25, 2013, the Senate Judiciary Committee favorably 
reported S. 607 with the following two amendments:
    First, Chairman Leahy offered a technical amendment to the 
bill to make technical corrections to the rule of construction 
language in the bill at the request of the Department of 
Justice. The changes further clarify that the bill does not 
apply to, or alter, any other Federal criminal or national 
security laws that authorize the United States Government to 
collect, or acquire, wire or electronic communications--or 
related records--including the surveillance and other 
intelligence authorities contained in the Wiretap Act (Chapter 
119 of Title 18) and the Foreign Intelligence Surveillance Act 
of 1978 (50 U.S.C. 1801, et seq.). The Committee unanimously 
adopted the amendment by voice vote.
    Second, Senator Grassley offered an amendment to require 
that the Comptroller General of the United States conduct a 
study and report to Congress by September 30, 2015 on how ECPA 
is currently being applied, including the extent to which law 
enforcement is relying upon section 2703 of ECPA to obtain 
information in criminal matters, and how the law will be 
affected by the new warrant requirement in the bill. The 
Committee unanimously adopted the amendment by voice vote.
    The Committee then voted to report the Electronic 
Communications Privacy Act Amendments Act of 2013, as amended, 
favorably to the Senate by voice vote.

              III. Section-by-Section Summary of the Bill

    The Leahy-Lee Electronic Communications Privacy Act 
Amendments Act would update the privacy protections for 
Americans' email and other electronic communications for the 
digital age. The Electronic Communications Privacy Act (ECPA) 
is one of the nation's premier digital privacy laws. After 
three decades, ECPA has become outdated by vast technological 
advances and changing law enforcement missions since the law's 
initial enactment. The bill would update this law to improve 
the privacy protections for electronic communications 
information that is stored or maintained by third-party service 
providers. The bill maintains the careful balance that Congress 
struck when it first enacted the law--to continue to protect 
and promote consumer privacy interests, law enforcement needs, 
and American innovation in the digital age.

Section 1. Short title

    This section designates the Act as the Electronic 
Communications Privacy Act Amendments Act of 2013.

Section 2. Confidentiality of electronic communications

    Section 2 amends Title 18, United States Code, Section 2702 
(the Electronic Communications Privacy Act or ``ECPA'') to 
prohibit an electronic communications or remote computing 
service provider from voluntarily disclosing the contents of 
its customers' email or other electronic communications to the 
Government. There are limited exceptions to this prohibition 
under current law, including customer consent and disclosure to 
law enforcement to address criminal activity.

Section 3. Elimination of 180-day rule; Search warrant requirement for 
        content; Required disclosure of customer records

    Section 3 amends ECPA so that the disclosure of the content 
of email and other electronic communications by an electronic 
communications or remote computing service provider to the 
Government is subject to one clear legal standard--a search 
warrant issued based on a showing of probable cause. The 
provision eliminates the confusing and outdated ``180-day'' 
rule that calls for different legal standards for the 
Government to obtain email content, depending upon the email's 
age and whether the email has been opened. The provision also 
requires that the Government notify the individual whose 
account was disclosed, and provide that individual with a copy 
of the search warrant and other details about the information 
obtained. Such notice must be provided within ten business days 
for a law enforcement agency, and three business days for other 
agencies, of a Government entity's receipt of the 
communications unless the notice is delayed pursuant to Section 
4 of the bill.
    Section 3 also reaffirms current law to clarify that the 
Government may use an administrative or grand jury subpoena in 
order to obtain certain kinds of electronic communication 
records from a service provider, including customer name, 
address, session time records, length of service information, 
subscriber number and temporarily assigned network address, and 
means and source of payment information. At the request of the 
Department of Justice and the Federal Trade Commission, Section 
3 also contains a provision that adds civil discovery subpoenas 
to the types of subpoenas that may be used under existing law 
(administrative subpoena authorized by Federal or State law, 
Federal or State grand jury subpoena and trial subpoena) to 
obtain routing and other non-content information from a third-
party provider.
    Lastly, the section contains a rule of construction 
regarding Government access to internal corporate email that 
makes clear that nothing in the bill precludes the Government 
from using a subpoena to obtain email and other electronic 
communications content obtained from an intended recipient or 
original sender, or to obtain such communications directly from 
a company when the communications are to or from an officer, 
agent or employee of a company and the company is acting as an 
electronic communications service provider for its own internal 
email system.

Section 4. Delayed notice

    Section 4 amends section 2705 of ECPA to provide that the 
Government may seek a court order to delay notifying an 
individual of the fact that the Government has accessed the 
contents of the individual's electronic communications for up 
to 180 days if the requesting Government entity is a law 
enforcement agency, and for up to 90 days if the requesting 
Government entity is a civil or administrative enforcement 
agency. A court may extend the delay periods for a period of up 
to an additional 180 or 90 days at a time, respectively.
    Section 4 also establishes a time limit on the period that 
the Government could preclude a service provider from informing 
its customer about the disclosure of electronic communications 
information to the Government. If the Government entity is a 
civil or administrative enforcement agency, the applicable time 
period for preclusion of notice is 90 days. The time period for 
preclusion may extend up to 180 days if the requesting 
Government entity is a law enforcement agency. These time 
periods may also be extended by a court for up to an additional 
90 or 180 days at a time, respectively.
    Lastly, Section 4 requires that service providers notify 
the Government of their intent to inform a customer or 
subscriber of the fact that the provider has disclosed the 
individual's electronic communications information to the 
Government at least three business days before the provider 
gives such notice to the customer or subscriber. The purpose of 
this provision is to ensure that the Government has an 
opportunity to protect the integrity of its investigation and, 
if warranted, to ask a court to delay the notification, before 
such notice is given.

Section 5. Evaluation by the Government Accountability Office

    Section 5 requires that the Comptroller General of the 
United States submit a report to Congress by September 30, 
2015, that evaluates, among other things, during the five years 
prior to the effective date of the amendments in the bill--(1) 
how often law enforcement relied upon section 2703 of ECPA to 
requests electronic communications content information; (2) the 
average length of time needed for service providers to comply 
with such requests; (3) the number of times a warrant was used 
for such requests; and (4) the number of times law enforcement 
requested delayed notification pursuant to section 2705 of 
ECPA. Section 5 also requires that the Comptroller General--(1) 
the effects of the new warrant requirement contained in the 
bill on the courts; (2) conduct a survey to determine the 
average length of time required to respond to requests for 
information; and (3) determine whether the new warrant 
requirement in the bill resulted in an increase in the use of 
the emergency exception to the warrant requirement in section 
2702(b)(8) of ECPA.

Section 6. Rule of construction

    Section 6 provides that the search warrant requirement for 
electronic communications content contained in Section 3 of the 
bill does not apply to any other Federal criminal or national 
security laws, including Title III of the Omnibus Crime Control 
and Safe Streets Act of 1986 (commonly known as the ``Wiretap 
Act'') and the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801, et seq. (commonly known as ``FISA'')).

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 607, 
the following estimate and comparison prepared by the Director 
of the Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974:

                                                      May 16, 2013.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 607, the Electronic 
Communications Privacy Act Amendments Act of 2013.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 607--Electronic Communications Privacy Act Amendments of 2013

    S. 607 would amend the Electronic Communications Privacy 
Act of 1986 (Public Law 99-508) to make several changes to the 
current laws relating to the privacy of personal electronic 
communications. The bill also would require the Government 
Accountability Office (GAO) to prepare a report, by the end of 
fiscal year 2015, on service providers' disclosure of customer 
communications to law enforcement agencies.
    Based on the cost of similar activities, CBO estimates that 
it would cost $1 million to $2 million from appropriated funds 
over the 2014-2015 period for GAO to prepare the report 
required by the bill. CBO estimates that other provisions of 
the bill would have no significant cost to the federal 
government. Enacting the legislation would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    S. 607 would impose intergovernmental mandates, as defined 
in the Unfunded Mandates Reform Act (UMRA), by changing the 
procedures that governmental agencies must follow when they 
obtain electronic communications. Because the changes would 
result in minimal additional spending, CBO estimates that the 
costs of the intergovernmental mandates would be small and 
would not exceed the threshold established in UMRA ($75 million 
in 2013, adjusted annually for inflation).
    S. 607 also would impose a private-sector mandate by 
requiring providers of electronic communications and remote 
computing services to inform the government before they notify 
a customer or subscriber that they have disclosed information 
to the government. Based on information from industry sources, 
CBO estimates that the cost of the mandate would fall well 
below the annual threshold established in UMRA for private-
sector mandates ($150 million in 2013, adjusted annually for 
inflation).
    The CBO staff contacts for this estimate are Mark Grabowicz 
and Matthew Pickford (for federal costs), Elizabeth Cove 
Delisle (for the impact on state, local, and tribal 
governments), and Marin Burnett (for the impact on the private 
sector). The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 607.

                             VI. Conclusion

    The bill, as amended, S. 607, provides greatly needed 
updates to our Federal digital privacy laws. The bill carefully 
balances the need to protect Americans' privacy rights in 
cyberspace, with the legitimate needs of law enforcement and 
the interests of the American technology sector. Given the many 
advances in technology and new threats to privacy, the passage 
and enactment of these important privacy updates is long 
overdue.

                         VII. Additional Views

                              ----------                              


          ADDITIONAL VIEWS FROM SENATORS GRASSLEY AND SESSIONS

 Amendments to the Electronic Communications Privacy Act Are Necessary 
but Should Also Address the Impact on Law Enforcement, the Courts, and 
                       Civil Regulatory Agencies

    In the 112th Congress, we voted to report virtually the 
same version of this bill because we believe that the 
Electronic Communications Privacy Act of 1986 (``ECPA'') needs 
to be updated to match advances in technology. However, we also 
stated that the bill needed work to better protect email 
privacy without hampering law enforcement agencies' ability to 
obtain information in order to investigate serious crimes, as 
well as civil regulatory agencies' ability to investigate 
wrongdoing. We expressed concern that the bill did not strike 
the proper balance, but it was the start of an important 
discussion. We believe that these changes are important to 
continue the carefully crafted balance between protecting 
privacy and providing needed tools to law enforcement.
    We find ourselves in the same position in this Congress. We 
reiterate that the Committee should work to ensure that this 
balance is continued as we update ECPA for decades to come. 
First, the Committee should consider whether a more 
comprehensive approach to updating the laws involving 
electronic communications and data is warranted. This would 
include looking to advances in technology for location 
information in addition to the content of communications. It 
would also assist in addressing the concerns that have been 
raised by the law enforcement, technology, and privacy 
communities. Second, the bill should address the ability of law 
enforcement to obtain access to critical evidence, especially 
in time-sensitive emergency cases. Third, and finally, more 
consideration is needed with regard to the bill's removal of a 
valuable tool from civil regulatory agencies, which rely on 
administrative subpoenas to obtain email communications when 
investigating insider trading, accounting fraud, and false or 
misleading statements made by companies about their financial 
situations.
    We appreciate that members on the Committee share these 
concerns and spoke up at the Committee mark-up to highlight the 
need for modifications to the current bill. Additionally, we 
welcome the views of the well-respected Chairwoman of the 
Securities and Exchange Commission, Mary Jo White. While we 
support the goal of harmonizing and updating ECPA, failure to 
address these important issues and strike the proper balance 
will be detrimental to not just the law enforcement and civil 
regulatory agencies seeking to obtain necessary information, 
but to the American people, businesses, and the court system 
and may require future action from Congress to update other 
parts of ECPA.
Current law
    ECPA was enacted in 1986 as a result of advancements in 
wireless communication technology and was designed to provide 
modern rules for government access to electronic communications 
and related data. It was designed to balance the public's 
privacy interests with law enforcement's need to access 
electronic communication information for investigative 
purposes.\1\
---------------------------------------------------------------------------
    \1\S. Rep. No. 99-541, pt. 3, at 5 (1986) (noting that, when ECPA 
was first adopted, the Senate Judiciary Committee believed that it 
``represent[ed] a fair balance between the privacy expectations of 
American citizens and the legitimate needs of law enforcement 
agencies'').
---------------------------------------------------------------------------
    ECPA created a spectrum of legal standards depending on the 
level of privacy interest in the information sought by the 
government. For example, under current law, a government entity 
may require a provider of electronic communication services to 
disclose the contents of a wire or electronic communication 
that is in electronic storage for 180 days or less pursuant to 
a criminal search warrant.\2\ For communications stored with a 
third party for more than 180 days, however, the statute 
authorizes a lower legal burden.\3\ A government entity can 
require a provider of electronic communication services to 
disclose the contents of the communications either by search 
warrant (without notice to the subscriber or customer), or by 
administrative, grand jury, or trial subpoena, or a Section 
2703(d) court order if notice is first provided to the 
subscriber or customer.\4\ The basis for the ``180 day rule'' 
has been that if the emails are stored by a third party service 
provider for more than six months, one's expectation of privacy 
in the content of these communications diminishes, and these 
records are therefore treated more akin to third party business 
records than real-time communications. As a result, law 
enforcement investigators have been able to use quicker and 
more efficient methods of legal process (i.e., subpoena or 
2703(d) order) to obtain the content contained in these older 
emails and related records.\5\
---------------------------------------------------------------------------
    \2\18 U.S.C. Sec. 2703(a) (2006).
    \3\18 U.S.C. Sec. 2703(a) (2006).
    \4\18 U.S.C. Sec. 2703(b) (2006).
    \5\On March 19, 2013, while testifying before the House Judiciary 
Subcommittee on Crime, Terrorism, Homeland Security, and 
Investigations, Acting Assistant Attorney General Elana Tyrangiel 
testified that the Department of Justice no longer supports 
differentiating between emails kept in storage for less than 180 days 
and emails stored for over 180 days. She did not indicate, however, 
whether the Department had solicited input from the thousands of state 
and local law enforcement professionals on the front lines prior to 
offering a view that could adversely impact the course of their 
investigations.
---------------------------------------------------------------------------
    The ability to use a subpoena or a court order has allowed 
law enforcement officials to gather older email content 
information quickly in cases where time is of the essence and 
probable cause may not yet have been developed. However, under 
the bill criminal investigators would not be able to obtain 
email information in criminal investigations until they have 
developed probable cause and could obtain a search warrant.
    Additionally, these same tools have permitted federal 
regulatory agencies like the Securities and Exchange 
Commission, the Food and Drug Administration, the Consumer 
Product Safety Commission, and the Federal Trade Commission, 
etc., to gather important information by administrative 
subpoenas and carry out their enforcement responsibilities over 
important industries. But this bill eliminates these 
administrative subpoenas. Therefore, since civil investigators 
have no criminal search warrant authority, they would no longer 
be able to obtain the contents of emails unless a target of an 
investigation or a charged defendant graciously provides the 
incriminating email containing the ``smoking gun.'' Civil 
regulators would then have no ability to compel the disclosure 
of email content from third party Internet service providers. 
As a result, the bill raises concerns over civil regulatory 
agencies' ability to even undertake the types of investigations 
Congress has authorized and empowered them to undertake.
ECPA reform requires a more comprehensive review
    As an initial matter, in conducting a review of the laws 
relating to electronic communications and related documents, we 
agree that work needs to be done to ensure that our laws are up 
to date and do not negatively impact business innovation and 
development. We also need to address legitimate privacy 
concerns. It is equally important, however, to hear from the 
law enforcement community to ensure we do not limit their 
ability to obtain information necessary to catch criminals and 
terrorists who use electronic communications to further their 
crimes. ECPA has specific definitions and has come to be 
interpreted by courts in particular ways; therefore, any 
amendment requires careful consideration to ensure we do not 
create loopholes that make it harder for law enforcement to do 
their jobs and allow criminals and terrorists to operate with 
impunity.
    Demonstrating the need for a comprehensive review, the bill 
is silent regarding the use of ECPA to obtain data regarding 
location information data. Increasingly, judges across the 
country are examining whether ECPA allows law enforcement to 
obtain location information data obtained from a handheld 
device or from cellular site towers. The Committee on the 
Judiciary in the House of Representatives recently held a 
hearing to address this exact question.\6\ This hearing 
examined the different legal tools law enforcement utilizes to 
obtain stored, prospective, or real-time geolocation 
information. Specifically, the hearing focused on the different 
statutes employed to obtain this information, including the use 
of ECPA, 2703(d) orders, pen registers, and combinations of 
these various authorities.\7\ The testimony at the hearing 
discussed the need for Congress to bring clarity to ECPA and 
companion statutes to address the splits among the various 
federal courts as part of any ECPA reform effort. This bill 
does not include such endeavors and as a result, does not 
examine ECPA in a comprehensive manner. The Committee should 
follow the lead of the House Judiciary Committee and examine 
these important issues to ensure that the proper balance is 
struck with regard to all aspects of ECPA, including 
geolocation.
---------------------------------------------------------------------------
    \6\See The Electronic Communications Privacy Act (ECPA), Part 2: 
Geolocation Privacy and Surveillance Before the H. Comm. on the 
Judiciary, 113th Cong. (April 25, 2013).
    \7\Id. (Statement of Mark Eckenwiler, Senior Counsel, Perkins Coie 
LLP).
---------------------------------------------------------------------------
The amendment may adversely affect criminal investigations
    Law enforcement representatives have raised concerns that 
increasing the legal standard to require a criminal search 
warrant for the content of all email communications regardless 
of the length of time they have been in electronic storage will 
hinder and delay criminal investigations.\8\ Criminal search 
warrants require a showing of probable cause to believe that a 
crime has been committed and that evidence of that crime will 
be located in the place to be searched. This can be a 
challenging standard, especially in cases where time is of the 
essence.
---------------------------------------------------------------------------
    \8\Id. at 2; Letter from the MCCPA, et al., to Chairman Leahy & 
Ranking Member Grassley, supra note 7, at 2-3.
---------------------------------------------------------------------------
    For example, in the early stages of a child abduction case 
where time is of the essence, the facts are usually not fully 
known. Investigators often cannot establish probable cause to 
search a missing child's email account--or a similar account 
such as Facebook or Twitter--because it is not clear that a 
kidnapping has occurred or that evidence of that crime will be 
found in the child's email account. However, under current law, 
investigators have been able to access the contents of a 
child's email account by using grand jury subpoenas or court 
orders, thereby identifying valuable investigative leads and 
even perpetrators who may have been communicating with the 
child.
    Under the bill, however, investigators have no way to 
compel the disclosure of this vital information and are left at 
the mercy of parental consent or voluntary disclosure by 
service providers. While neither of these scenarios requires a 
warrant, they are both highly problematic for other reasons. 
Investigators would encounter issues with parental consent when 
a child's parents are unavailable because they are dead or 
missing, or unwilling to consent when they are targets of the 
investigation.
    Voluntary disclosure by service providers is likewise 
unreliable, because the bill does not address the current 
standard in Section 2702(b) of Title 18, United States Code on 
emergency disclosures. This section merely requires service 
providers to voluntarily disclose email content information to 
law enforcement officials if the provider, in good faith, 
believes that an emergency involving danger of death or serious 
physical injury to any person requires the disclosure without 
delay of the communication. But, even if an emergency arises 
and time is of the essence, the bill does not require a service 
provider to disclose important information to law enforcement 
investigators. Early in an investigation, when any information 
as to the location of the child and identity of the kidnappers 
is absolutely critical, a provider may be reluctant to 
voluntarily disclose information without a warrant for a number 
of reasons. These might include a fear of litigation for 
disclosing a customer's information without a warrant, 
declining to accept law enforcement's assertion that there are 
enough facts to justify an emergency, implementing a policy of 
always requiring a search warrant, and many other possible 
impediments to the rapid recovery of the child.
    Some members of the Committee have stated that the 
traditional ``exigent circumstances'' to the Fourth Amendment 
would be sufficient to permit investigators to seize the 
electronic communication information without a warrant. Despite 
assurances from supporters of the bill that the traditional 
exigent circumstances exception would apply in the event this 
bill becomes law, this is not a settled issue by any means.
    As a threshold matter, courts across the country disagree 
as to whether the contents of email stored in the hands of a 
third party service provider trigger privacy protection under 
the Fourth Amendment. Some courts have held that emails are 
analogous to a mailed letter, and that an individual's 
reasonable expectation of privacy ends upon delivery of the 
letter or the transmission of the email to the recipient.\9\ 
Other courts have reached a different conclusion, holding that 
a subscriber enjoys a reasonable expectation of privacy in the 
content of emails that are stored or sent and received through 
a third-party internet service provider.\10\ Unfortunately, the 
Committee never held a hearing, heard witnesses or reviewed 
evidence, or even had the opportunity to debate this important 
question.
---------------------------------------------------------------------------
    \9\See, e.g., United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 
2004) (holding that, like letter-writers whose expectation of privacy 
ends upon delivery of the letter, individuals may not possess a 
legitimate expectation of privacy ``in transmissions over the Internet 
or e-mail that have already arrived at the recipient''); United States 
v. Dupree, 781 F.Supp.2d 115, 159 (E.D.N.Y.2011) (finding that 
defendants could ``not claim a legitimate expectation of privacy in 
emails that they gave [an employee] permission to access and view''); 
State v. Hinton, 280 P.3d 476, 482 (Wash. App. 2012) (ruling that the 
defendant's expectation of privacy in a text message terminated upon 
the message's delivery to the recipient). Furthermore, the Supreme 
Court has held that the Fourth Amendment did not prevent the government 
from reviewing electronic pager messages of its employees. City of 
Ontario v. Quon, 130 S.Ct. 2619 (2010).
    \10\See, e.g., United States v. Warshak, 631 F.3d 266, 288 (6th 
Cir. 2010) (holding that ``a subscriber enjoys a reasonable expectation 
of privacy in the contents of emails `that are stored with, or sent or 
received through, a commercial [internet service provider]'''); United 
States v. Forrester, 512 F.3d 500, 509-11 (9th Cir. 2008) (finding that 
a customer does not have a legitimate expectation of privacy in the 
email addresses attached to transmitted messages or the internet 
protocol addresses visited on a home computer because that information 
is voluntarily conveyed to the service provider, but distinguishing 
between addresses and the content of messages, noting that ``the 
contents may deserve Fourth Amendment protection, but the address and 
size of the package do not'').
---------------------------------------------------------------------------
    But even assuming arguendo that traditional Fourth 
Amendment exceptions apply, the exigent circumstances exception 
to the warrant requirement would not be helpful in obtaining 
email content because the bill leaves law enforcement officials 
at the mercy of the service providers, even in an emergency. 
Law enforcement investigators, who have the training and 
experience in such matters, should be making the determination 
as to what constitutes an emergency situation--not an untrained 
employee of a service provider. An emergency exception that 
allows law enforcement professionals to determine the existence 
of an emergency and requires service providers to disclose the 
requested information is a potential fix that might help 
address some law enforcement concerns and might help 
recalibrate ECPA so that there is better balance between 
privacy and public safety.
    Finally, we have a related concern as to whether Congress 
should be looking at setting time limits to ensure timely 
compliance with the search warrants. By raising all content 
requests to a search warrant standard, the bill would delegate 
authority to every state, local, and federal judge to manage 
requests for email content. This is important because, 
traditionally, search warrants do not operate like subpoenas, 
where recipients are typically given up to 14 days to respond. 
Instead, search warrants usually require immediate processing 
and prompt reporting back to the judge. However, law 
enforcement officials have advised us that third-party service 
providers do not always provide prompt compliance. 
Additionally, because the statute is silent on this matter, 
courts often create their own time limits. We should consider 
whether uniform time limits for compliance with the search 
warrant are appropriate and seek to avoid the confusion 
inherent with third-party compliance wrought by the variable 
time limits set by the different federal and state courts 
issuing these warrants.
Civil investigations could be adversely affected
    As noted above, under the bill, agencies with civil 
regulatory authority will no longer be able to compel access to 
older email content because the amendment removes the 
administrative subpoena as a tool to obtain email 
communications. The bill permits criminal search warrants as 
the sole legal vehicle to compel disclosure of email content. 
Without criminal search warrant authority, these civil federal 
agencies reported to us that the amendment will negatively 
impact their investigations.
    For example, Securities and Exchange Commission Chairwoman 
Mary Jo White recently sent a letter to the Committee outlining 
her concerns that the SEC will be unable to obtain critical 
emails necessary to investigate civil securities fraud 
statutes. Specifically, she wrote that the legislation, in its 
current form, could have an impact on the Commission's 
``ability to protect investors and to assist victims of 
securities fraud.''\11\
---------------------------------------------------------------------------
    \11\Letter from SEC to U.S. Senate Judiciary Committee Chairman 
Leahy (April 24, 2013) (attached in appendix).
---------------------------------------------------------------------------
    Chairman White's letter also argues that the proposed 
``work-arounds'' that have been suggested would be inadequate. 
For example, some argue that the solution is to simply obtain 
emails from the targets of the investigation.\12\ Chairman 
White argues that often time these individuals delete relevant 
emails or otherwise fail to provide them despite obtaining a 
subpoena.\13\ As a result, the Chairman White fears that this 
could embolden non-compliance with subpoenas by targets of 
investigations.\14\
---------------------------------------------------------------------------
    \12\Id. at 2-3.
    \13\Id.
    \14\Id.
---------------------------------------------------------------------------
    Additionally, Chairman White argues against those who say 
the SEC could simply work with the Justice Department to obtain 
a warrant.\15\ She notes that, ``the Commission cannot request 
that the DOJ apply for a search warrant on the SEC's behalf.'' 
Further, she adds that the vast majority of cases investigated 
by the SEC are not criminal and therefore would be outside the 
scope of ability to obtain a warrant--effectively limiting 
enforcement.\16\
---------------------------------------------------------------------------
    \15\Id. at 2.
    \16\Id.
---------------------------------------------------------------------------
    To remedy this, Chairman White advocates for an amendment 
to allow a judicial standard for civil matters akin to a 
criminal search warrant.\17\ This is an idea worth considering 
as we move forward. It would still require a ruling from a 
judge of a competent jurisdiction, similar to what we will 
allow for criminal cases under this bill, while retaining the 
protections provided in this bill.
---------------------------------------------------------------------------
    \17\Id. at 3.
---------------------------------------------------------------------------
    The SEC relies on email communications to help determine a 
person's intent, agreements and conspiracies to defraud, and 
patterns of illegal conduct when investigating allegations of 
insider trading, accounting fraud, and providing false or 
misleading information about securities and the companies that 
issue them. In providing technical assistance to the Ranking 
Member in evaluating the bill, the SEC advised that this 
legislation would significantly impact the SEC's enforcement of 
the securities laws--including insider trading.
    The SEC recently filed a civil case against two individuals 
alleging that over a period of years they engaged in a scheme 
to artificially inflate the financial results of a publicly 
owned retailer by engaging in a series of fraudulent financial 
transactions. During the investigation, the SEC obtained an 
email using an ECPA-authorized subpoena showing that one of the 
defendants sent an email describing the publicly owned 
company's commitment to buy certain products and services at 
inflated prices. The email stated ``the fake credits that were 
negotiated with'' the company were being used ``to hit certain 
quarterly numbers.'' This evidence was particularly important 
because the defendants were sophisticated and had cleverly and 
carefully concealed their scheme. The SEC subpoenaed the 
Internet Service Provider (ISP) because an individual in the 
case had failed to produce an email from one of his personal 
email account in response to a subpoena issued to him almost a 
year earlier. SEC investigators confronted the defendant with 
the email obtained from the ISP. The defendant then produced 
his personal email, including this inculpatory one. This 
example demonstrates how important the administrative subpoena 
is in the civil regulatory context; indeed, it can be the 
difference between enforcing the laws and watching helplessly 
as crafty fraudsters escape liability and accountability for 
their crimes.
    The SEC has also advised us that investigative 
administrative subpoenas for email from ISPs are highly 
valuable in other situations, such as: (1) when investigators 
are attempting to locate stolen assets of victimized investors, 
(2) where the target of an investigation lives outside the 
United States, and (3) where the target of an investigation 
claims to have deleted all of their emails, has a damaged hard 
drive, or simply withholds the evidence.
    The administrative subpoena is a vital tool for other 
federal civil enforcement agencies as well. The Food and Drug 
Administration also uses administrative subpoenas to review 
email communications to investigate allegations regarding 
violations of food and drug safety laws. The Consumer Product 
Safety Commission and the Federal Trade Commission use email 
communications to investigate allegations of fraud, deception, 
and unfair business practices in the marketplace. The 
Commodities and Futures Trading Commission (CFTC) relies on 
email communications to investigate fraud, manipulation, and 
abusive trading practices in the marketplace. Through effective 
oversight, the CFTC enables the futures markets to serve the 
important function of providing a means for price discovery and 
offsetting price risk.
Conclusion
    We agree that ECPA reform is needed to address the dramatic 
advances to technology over the last three decades. We have 
concerns, however, with the version reported by the Committee. 
There are very valid concerns raised by the law enforcement 
community and civil regulatory agencies and those concerns 
should be addressed. ECPA is an important privacy law and 
advances in technology warrant an update. However, in addition 
to the changes made for content in this bill, ECPA reform 
should address some of these other concerns raised to ensure we 
have a comprehensive approach that strikes the proper balance 
between privacy and public safety. Going forward, we trust that 
the Committee will address the concerns described above so that 
ECPA reform can be achieved.

                                   Charles E. Grassley.
                                   Jeff Sessions.

      VIII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 607, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

 18 USC Sec. 2702--VOLUNTARY DISCLOSURE OF CUSTOMER COMMUNICATIONS OR 
                                RECORDS

    (a) Prohibitions.--Except as provided in subsection (b) or 
(c)--
          (1) a person or entity providing an electronic 
        communication service to the public shall not knowingly 
        divulge to any person or entity the contents of a 
        communication while in electronic storage by that 
        service; and
          (2) a person or entity providing remote computing 
        service to the public shall not knowingly divulge to 
        any person or entity the contents of any communication 
        which is carried or maintained on that service--
                  (A) on behalf of, and received by means of 
                electronic transmission from (or created by 
                means of computer processing of communications 
                received by means of electronic transmission 
                from), a subscriber or customer of such 
                service;
                  (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; and
          (3) [a provider of remote computing service or 
        electronic communication service to the public shall 
        not knowingly divulge a record or other information 
        pertaining to a subscriber to or customer of such 
        service (not including the contents of communications 
        covered by paragraph (1) or (2)) to any Governmental 
        entity.] 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.
    (b) Exceptions for Disclosure of Communications.--A 
provider described in subsection (a) may divulge the contents 
of a communication--
          (1) to an addressee or intended recipient of such 
        communication or an agent of such addressee or intended 
        recipient;
          (2) as otherwise authorized in section 2517, 
        2511(2)(a), or 2703 of this title;
          (3) with the lawful consent of the originator or an 
        addressee or intended recipient of such communication, 
        or the subscriber in the case of remote computing 
        service;
          (4) to a person employed or authorized or whose 
        facilities are used to forward such communication to 
        its destination;
          (5) as may be necessarily incident to the rendition 
        of the service or to the protection of the rights or 
        property of the provider of that service;
          (6) to the National Center for Missing and Exploited 
        Children, in connection with a report submitted thereto 
        under section 2258A;
          (7) to a law enforcement agency--
                  (A) if the contents--
                          (i) were inadvertently obtained by 
                        the service provider; and
                          (ii) appear to pertain to the 
                        commission of a crime; or
          (8) to a Governmental entity, if the provider, in 
        good faith, believes that an emergency involving danger 
        of death or serious physical injury to any person 
        requires disclosure without delay of communications 
        relating to the emergency.
    (c) Exceptions for Disclosure of Customer Records.--A 
provider described in subsection (a) may divulge a record or 
other information pertaining to a subscriber to or customer of 
such service (not including the contents of communications 
covered by subsection (a)(1) or (a)(2))--
          (1) as otherwise authorized in section 2703;
          (2) with the lawful consent of the customer or 
        subscriber;
          (3) as may be necessarily incident to the rendition 
        of the service or to the protection of the rights or 
        property of the provider of that service;
          (4) to a Governmental entity, if the provider, in 
        good faith, believes that an emergency involving danger 
        of death or serious physical injury to any person 
        requires disclosure without delay of information 
        relating to the emergency;
          (5) to the National Center for Missing and Exploited 
        Children, in connection with a report submitted thereto 
        under section 2258A; or
          (6) to any person other than a Governmental entity.
    (d) Reporting of Emergency Disclosures.--On an annual 
basis, the Attorney General shall submit to the Committee on 
the Judiciary of the House of Representatives and the Committee 
on the Judiciary of the Senate a report containing--
          (1) the number of accounts from which the Department 
        of Justice has received voluntary disclosures under 
        subsection (b)(8); and
          (2) a summary of the basis for disclosure in those 
        instances where--
                  (A) voluntary disclosures under subsection 
                (b)(8) were made to the Department of Justice; 
                and
                  (B) the investigation pertaining to those 
                disclosures was closed without the filing of 
                criminal charges.

  18 USC Sec. 2703--REQUIRED DISCLOSURE OF CUSTOMER COMMUNICATIONS OR 
                                RECORDS

    [(a) Contents of Wire or Electronic Communications in 
Electronic Storage.--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 in an electronic communications system for 
one hundred and eighty days or less, 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. A Governmental entity may require the disclosure 
by a provider of electronic communications services of the 
contents of a wire or electronic communication that has been in 
electronic storage in an electronic communications system for 
more than one hundred and eighty days by the means available 
under subsection (b) of this section.
    [(b) Contents of Wire or Electronic Communications in a 
Remote Computing Service.--
          [(1) A Governmental entity may require a provider of 
        remote computing service to disclose the contents of 
        any wire or electronic communication to which this 
        paragraph is made applicable by paragraph (2) of this 
        subsection--
                  [(A) without required notice to the 
                subscriber or customer, 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) 
                by a court of competent jurisdiction; or
                  [(B) with prior notice from the Governmental 
                entity to the subscriber or customer if the 
                Governmental entity--
                          [(i) uses an administrative subpoena 
                        authorized by a Federal or State 
                        statute or a Federal or State grand 
                        jury or trial subpoena; or
                          [(ii) obtains a court order for such 
                        disclosure under subsection (d) of this 
                        section; except that delayed notice may 
                        be given pursuant to section 2705 of 
                        this title.
          [(2) Paragraph (1) is applicable with respect to any 
        wire or electronic communication that is held or 
        maintained on that service--
                  [(A) on behalf of, and received by means of 
                electronic transmission from (or created by 
                means of computer processing of communications 
                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) 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 to or customer of such 
        service (not including the contents of communications) 
        only when 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) 
                by a court of competent jurisdiction;
                  [(B) obtains a court order for such 
                disclosure under subsection (d) of this 
                section;
                  [(C) has the consent of the subscriber or 
                customer to such disclosure;
                  [(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 such provider, which subscriber 
                or customer is engaged in telemarketing (as 
                such term is defined in section 2325 of this 
                title); or
                  [(E) seeks information under paragraph (2).
          [(2) A provider of electronic communication service 
        or remote computing service shall 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 utilized;
                  [(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 to or customer 
                of such service when the Governmental entity 
                uses an administrative subpoena authorized by a 
                Federal or State statute or a Federal or State 
                grand jury or trial subpoena or any means 
                available under paragraph (1).
          [(3) A Governmental entity receiving records or 
        information under this subsection is not required to 
        provide notice to a subscriber or customer.]
    (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 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 clause (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.
    (d) Requirements for Court Order.--[A court order for 
disclosure under subsection (b) or (c)] A court order for 
disclosure under subsection (c) may be issued by any court that 
is a court of competent jurisdiction and shall issue only if 
the Governmental entity offers specific and articulable facts 
showing that there are reasonable grounds to believe that [the 
contents of a wire or electronic communication, or] the records 
or other information sought, are relevant and material to an 
ongoing criminal investigation. In the case of a State 
Governmental authority, such a court order shall not issue if 
prohibited by the law of such State. A court issuing an order 
pursuant to this section, on a motion made promptly by the 
service provider, may quash or modify such order, if the 
information or records requested are unusually voluminous in 
nature or compliance with such order otherwise would cause an 
undue burden on such provider.
    (e) No Cause of Action Against a Provider Disclosing 
Information Under This Chapter.--No cause of action shall lie 
in any court against any provider of wire or electronic 
communication service, its officers, employees, agents, or 
other specified persons for providing information, facilities, 
or assistance in accordance with the terms of a court order, 
warrant, subpoena, statutory authorization, or certification 
under this chapter.
    (f) Requirement To Preserve Evidence.--
          (1) In general.--A provider of wire or electronic 
        communication services or a remote computing service, 
        upon the request of a Governmental entity, shall take 
        all necessary steps to preserve records and other 
        evidence in its possession pending the issuance of a 
        court order or other process.
          (2) Period of retention.--Records referred to in 
        paragraph (1) shall be retained for a period of 90 
        days, which shall be extended for an additional 90-day 
        period upon a renewed request by the Governmental 
        entity.
    (g) Presence of Officer Not Required.--Notwithstanding 
section 3105 of this title, the presence of an officer shall 
not be required for service or execution of a search warrant 
issued in accordance with this chapter requiring disclosure by 
a provider of electronic communications service or remote 
computing service of the contents of communications or records 
or other information pertaining to a subscriber to or customer 
of such service.
    (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.

                    18 USC Sec. 2705--DELAYED NOTICE

    [(a) Delay of Notification.--
          [(1) A Governmental entity acting under section 
        2703(b) of this title may--
                  [(A) where a court order is sought, include 
                in the application a request, which the court 
                shall grant, for an order delaying the 
                notification required under section 2703(b) of 
                this title for a period not to exceed ninety 
                days, if the court determines that there is 
                reason to believe that notification of the 
                existence of the court order may have an 
                adverse result described in paragraph (2) of 
                this subsection; or
                  [(B) where an administrative subpoena 
                authorized by a Federal or State statute or a 
                Federal or State grand jury subpoena is 
                obtained, delay the notification required under 
                section 2703(b) of this title for a period not 
                to exceed ninety days upon the execution of a 
                written certification of a supervisory official 
                that there is reason to believe that 
                notification of the existence of the subpoena 
                may have an adverse result described in 
                paragraph (2) of this subsection.
          [(2) An adverse result for the purposes of paragraph 
        (1) of this subsection is--
                  [(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) The Governmental entity shall maintain a true 
        copy of certification under paragraph (1)(B).
          [(4) Extensions of the delay of notification provided 
        in section 2703 of up to ninety days each may be 
        granted by the court upon application, or by 
        certification by a Governmental entity, but only in 
        accordance with subsection (b) of this section.
          [(5) Upon expiration of the period of delay of 
        notification under paragraph (1) or (4) of this 
        subsection, the Governmental entity shall serve upon, 
        or deliver by registered or first-class mail to, the 
        customer or subscriber a copy of the process or request 
        together with notice that--
                  [(A) states with reasonable specificity the 
                nature of the law enforcement inquiry; and
                  [(B) informs such customer or subscriber--
                          [(i) that information maintained for 
                        such customer or subscriber by the 
                        service provider named in such process 
                        or request was supplied to or requested 
                        by that Governmental authority and the 
                        date on which the supplying or request 
                        took place;
                          [(ii) that notification of such 
                        customer or subscriber was delayed;
                          [(iii) what Governmental entity or 
                        court made the certification or 
                        determination pursuant to which that 
                        delay was made; and
                          [(iv) which provision of this chapter 
                        allowed such delay.
          [(6) As used in this subsection, the term 
        ``supervisory official'' means the investigative agent 
        in charge or assistant investigative agent in charge or 
        an equivalent of an investigating agency's headquarters 
        or regional office, or the chief prosecuting attorney 
        or the first assistant prosecuting attorney or an 
        equivalent of a prosecuting attorney's headquarters or 
        regional office.
    [(b) Preclusion of Notice to Subject of Governmental 
Access.--A Governmental entity acting under section 2703, when 
it is not required to notify the subscriber or customer under 
section 2703(b)(1), or to the extent that it may delay such 
notice pursuant to subsection (a) of this section, may apply to 
a court for an order commanding a provider of electronic 
communications service or remote computing service to whom a 
warrant, subpoena, or court order is directed, for such period 
as the court deems appropriate, not to notify any other person 
of the existence of the warrant, subpoena, or court order. The 
court shall enter such an order if it determines that there is 
reason to believe that notification of the existence of the 
warrant, subpoena, or court order will 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.]
    (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(a) 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 1 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 1 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 communications 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 communications 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.