[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2171 Introduced in Senate (IS)]
113th CONGRESS
2d Session
S. 2171
To address voluntary location tracking of electronic communications
devices, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 27, 2014
Mr. Franken (for himself, Mr. Coons, and Ms. Warren) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To address voluntary location tracking of electronic communications
devices, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Location Privacy Protection Act of
2014''.
SEC. 2. DEFINITION.
In this Act, the term ``geolocation information'' has the meaning
given that term in section 2713 of title 18, United States Code, as
added by this Act.
SEC. 3. VOLUNTARY LOCATION TRACKING OF ELECTRONIC COMMUNICATIONS
DEVICES.
(a) In General.--Chapter 121 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 2713. Voluntary location tracking of electronic communications
devices
``(a) Definitions.--In this section--
``(1) the term `covered entity' means a nongovernmental
individual or entity;
``(2) the term `consent' means affirmative express consent
after receiving clear, prominent, and accurate notice that--
``(A) informs the individual that his or her
geolocation information will be collected by the
covered entity; and
``(B) identifies the categories of covered entities
to which the geolocation information may be disclosed
by the covered entity;
``(C) provides the individual a hyperlink or
comparably easily accessible means to access the
information specified in subsection (b)(4);
``(3) the term `electronic communications device' means any
device that--
``(A) enables access to, or use of, an electronic
communications system, electronic communication
service, remote computing service, or geolocation
information service; and
``(B) is commonly carried by or on the person of an
individual or commonly travels with the individual,
including in or as part of a vehicle the individual
drives;
``(4) the term `geolocation information'--
``(A) means any information that--
``(i) is not the contents of a
communication;
``(ii) is in whole or in part generated by
or derived from the operation or use of an
electronic communications device; and
``(iii) is sufficient to identify the
street name and name of the city or town in
which the device is located; and
``(B) does not include the Internet protocol
address or the home, business, or billing address of
the individual, or any component parts of such
addresses; and
``(5) the term `geolocation information service' means the
provision of a global positioning service or other mapping,
locational, or directional information service.
``(b) Collection or Disclosure of Geolocation Information to or by
Nongovernmental Entities.--
``(1) In general.--Except as provided in paragraph (2), a
covered entity may not knowingly collect or disclose to another
covered entity the geolocation information from an electronic
communications device without the consent of the individual
that is using the electronic communications device.
``(2) Exceptions.--A covered entity may knowingly collect
or disclose to another covered entity the geolocation
information from an electronic communication device without
consent if the collection or disclosure is--
``(A) to allow a parent or legal guardian to locate
an unemancipated minor child or ward;
``(B) to allow a court-appointed guardian to locate
a legally incapacitated person;
``(C) for the provision of fire, medical, public
safety, or other emergency services;
``(D) pursuant to a court order in a civil
proceeding upon a showing of compelling need for the
information that cannot be accommodated by any other
means, if the individual is--
``(i) given reasonable notice by the person
seeking the disclosure of the court proceeding
relevant to the issuance of the court order;
and
``(ii) afforded the opportunity to appear
and contest the claim of the person seeking the
disclosure;
``(E) requested by a law enforcement agency of the
United States, a State, or a political subdivision of a
State pursuant to any lawful authority or activity,
including chapter 119, the Federal Rules of Criminal
Procedure, or any other provision of Federal or State
law, if the covered entity uses the geolocation
information collected in response to the request solely
for law enforcement purposes;
``(F) necessary for network operation by a person
that is subject to section 222 or 631 of the
Communications Act of 1934 (47 U.S.C. 222 and 551), if
the person uses the information solely for purposes of
network operation;
``(G) for the sole purpose of transmitting the
information to a person and in a circumstance described
in subparagraph (A), (B), (C), (D), (E), or (F);
``(H) necessary to protect the property of the
covered entity or to protect the covered entity's
customers or other covered entities from fraudulent,
abusive or unlawful conduct; or
``(I) conducted by any covered entity that is not
the covered entity that initially collected the
information from the electronic communications device.
In granting an order described in subparagraph (D), the court
shall impose appropriate safeguards against unauthorized
disclosure.
``(3) Anti-stalking protections.--Except for an instance in
which geolocation information is being collected under the
exception described in paragraph (2)(E), a covered entity that
initially collects geolocation information from an electronic
communications device in a manner that the covered entity has
reason to believe is imperceptible to the individual using the
electronic communications device shall, in addition to
obtaining consent under paragraph (1), provide clear,
prominent, and accurate notice to the individual, not earlier
than 24 hours and not later than 7 days after the initial
collection, informing the individual that his or her
geolocation information is being collected and providing him or
her the information specified in paragraph (4).
``(4) Publication of information.--A covered entity that
collects the geolocation information of more than 1,000
electronic communications devices in a year shall maintain a
publicly accessible Internet website that includes--
``(A) the nature of the geolocation information
that the covered entity collects from electronic
communications devices;
``(B) the purposes for which the covered entity
collects, uses, and discloses the information;
``(C) the specific covered entities to which the
covered entity discloses geolocation information; and
``(D) how an individual may electronically revoke
consent for the collection and disclosure of
geolocation information.
``(c) Rulemaking.--
``(1) In general.--The Attorney General shall, in
consultation with the Federal Trade Commission, issue
regulations to implement the requirements of this section. All
regulations promulgated under this section shall be issued in
accordance with section 553 of title 5.
``(2) Flexible rulemaking.--In promulgating regulations
under this section, the Attorney General shall--
``(A) avoid any regulatory requirement that would
create redundant notifications or requests for consent,
including in instances in which an individual has
previously consented to the collection of his or her
geolocation information or its disclosure to a
particular category of individuals or entities; and
``(B) ensure that such regulations address the
specific operational requirements of shared and legacy
electronic communications devices.
``(d) Civil Remedies.--
``(1) Action by attorney general of the united states.--If
the Attorney General of the United States has reasonable cause
to believe that an individual or entity is violating this
section or its implementing regulations, the Attorney General
may bring a civil action in an appropriate United States
district court.
``(2) Right of action.--Any individual aggrieved by any
action of an individual or entity in violation of this section
or its implementing regulations may bring a civil action in an
appropriate United States district court.
``(3) Rights of attorney general.--
``(A) Notice.--
``(i) In general.--Except as provided in
clause (iii), an aggrieved person bringing a
civil action under paragraph (2) shall notify
the Attorney General in writing that the person
intends to bring the action before initiating
that action.
``(ii) Contents.--A notification provided
under clause (i) with respect to a civil action
shall include a copy of the complaint to be
filed to initiate the civil action.
``(iii) Exception.--If it is not feasible
for the person to provide the notification
required by clause (i) before initiating a
civil action under paragraph (2), the person
shall notify the Attorney General immediately
upon instituting the civil action.
``(B) Intervention.--The Attorney General may--
``(i) intervene in any civil action brought
by an aggrieved person under paragraph (2); and
``(ii) upon intervening--
``(I) be heard on all matters
arising in the civil action; and
``(II) file petitions for appeal of
a decision in the civil action.
``(C) Preemptive action.--If the Attorney General
brings a civil action under paragraph (1), a person may
not, during the pendency of such action, bring a civil
action under paragraph (2) against any defendant named
in the complaint of the Attorney General for any
violation with respect to which the Attorney General
instituted such action.
``(4) Relief.--
``(A) In general.--In a civil action brought under
this subsection, the court may award--
``(i) damages of not more than $5,000 per
violation per day while such a violation
exists, with a maximum of $500,000 per
violation;
``(ii) punitive damages in an additional
amount of not more than $5,000 per violation
per day while such violation exists, with a
maximum of an additional $500,000 per
violation;
``(iii) reasonable attorney's fees and
other litigation costs reasonably incurred; and
``(iv) such other preliminary or equitable
relief as the court determines to be
appropriate.
``(B) Penalty limits.--Notwithstanding any other
provision of law, the total amount of civil penalties
that may be imposed with respect to a covered entity
that violates this section or its implementing
regulations shall not exceed, for all violations
resulting from the same or related acts or omissions,
$1,000,000, unless the conduct is found to be willful
or intentional. If a court determines that a violation
was willful or intentional and imposes an additional
penalty, the court may impose an additional penalty in
accordance with subparagraph (A) in an amount that does
not exceed $1,000,000.
``(5) Period of limitations.--
``(A) In general.--Except as provided in
subparagraph (B), a civil action may not be brought
under this subsection unless the civil action is filed
not later than 2 years after the later of--
``(i) the date of the act complained of; or
``(ii) the date of discovery of the act
complained of.
``(B) Limitation.--In no instance may a civil
action be brought under this subsection after the date
that is 10 years after the date of the act complained
of.''.
``(e) Effects on Other Law.--
``(1) In general.--This section shall supersede a provision
of the law of a State or political subdivision of a State that
requires or allows collection or disclosure of geolocation
information prohibited by this section.
``(2) State consumer protection laws.--Nothing in this
section shall be construed to preempt the law of a State that
grants greater consumer protections relating to the collection,
receipt, recording, obtaining, or disclosure of geolocation
information from electronic communications devices.
``(3) Rights and remedies.--Nothing in this section shall
be construed to effect the rights and remedies of any
individual under any other State or Federal law.
``(4) Common carriers and cable services.--This section
shall not apply to the activities of an individual or entity to
the extent the activities are subject to section 222 or 631 of
the Communications Act of 1934 (47 U.S.C. 222 and 551).''.
(b) Technical and Conforming Amendments.--Chapter 121 of title 18,
United States Code, is amended--
(1) in the table of sections, by adding at the end the
following:
``2713. Voluntary location tracking of electronic communications
devices.'';
and
(2) in section 2702(c), by striking ``A provider'' and
inserting ``Except as provided under section 2713, a
provider''.
(c) Effective Date; Applicability.--
(1) In general.--The amendments made by this section--
(A) shall take effect on the date of enactment of
this Act; and
(B) except as provided in paragraph (2), shall
apply on and after the date that is 180 days after the
issuance of regulations under section 2713(c) of title
18, United States Code, as added by subsection (a).
(2) Regulations.--Section 2713(c) of title 18, United
States Code, as added by subsection (a), shall apply on the
date of enactment of this Act.
SEC. 4. GEOLOCATION INFORMATION USED IN INTERSTATE DOMESTIC VIOLENCE OR
STALKING.
(a) In General.--Chapter 110A of title 18, United States Code, is
amended--
(1) by redesignating section 2266 as section 2267;
(2) by inserting after section 2265 the following:
``Sec. 2266. Geolocation information used in interstate domestic
violence or stalking
``(a) Offenses; Unauthorized Disclosure of Geolocation Information
in Aid of Interstate Domestic Violence or Stalking.--A covered entity
that--
``(1) knowingly and willfully discloses geolocation
information about an individual to another individual;
``(2) knew that a violation of section 2261, 2261A, or 2262
would result from the disclosure; and
``(3) intends to aid in a violation of section 2261, 2261A,
or 2262 as a result of the disclosure,
shall be punished as provided in subsection (b).
``(b) Penalties.--A covered entity that violates subsection (a)
shall be fined under this title, imprisoned for not more than 2 years,
or both.''; and
(3) in section 2267, as so redesignated, by adding at the
end the following:
``(11) Covered entity; geolocation information.--The terms
`covered entity' and `geolocation information' have the
meanings given those terms in section 2713.''.
(b) Technical and Conforming Amendments.--
(1) Title 10.--Section 1561a(b) of title 10, United States
Code, is amended by striking ``section 2266(5)'' and inserting
``section 2267(5)''.
(2) Title 18.--Title 18, United States Code, is amended--
(A) in section 113(b)(3), by striking ``section
2266'' and inserting ``section 2267'';
(B) in section 1992(d)(14), by striking ``section
2266'' and inserting ``section 2267''; and
(C) in chapter 110A--
(i) in the table of sections, by striking
the item relating to section 2266 and inserting
the following:
``2266. Geolocation information used in interstate domestic violence or
stalking.
``2267. Definitions.'';
and
(ii) in section 2261(b)(6), by striking
``section 2266 of title 18, United States
Code,'' and inserting ``section 2267''.
(3) Indian civil rights act of 1968.--Section 204(a)(7) of
Public Law 90-284 (25 U.S.C. 1304 et seq.) (commonly known as
the ``Indian Civil Rights Act of 1968'') is amended by striking
``section 2266'' and inserting ``section 2267''.
(4) Omnibus crime control and safe streets act of 1968.--
Section 2011(c) of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3796gg-5(c)) is amended by
striking ``section 2266'' and inserting ``section 2267''.
SEC. 5. FRAUDULENT COLLECTION OF GEOLOCATION INFORMATION.
(a) In General.--Section 1039(h) of title 18, United States Code,
is amended--
(1) in paragraph (2)--
(A) in subparagraph (A), by striking ``and'' at the
end;
(B) in subparagraph (B), by striking the period at
the end and inserting ``; and''; and
(C) by adding at the end the following:
``(C) includes any geolocation information
service.'';
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by inserting after paragraph (3) the following:
``(4) Geolocation information service.--The term
`geolocation information service' means the provision of a
global positioning service or other mapping, locational, or
directional information service.''.
(b) Conforming Amendments.--
(1) In general.--Section 1039 of title 18, United States
Code, is amended--
(A) in the section heading, by inserting ``or
geolocation'' after ``phone'';
(B) in subsection (a)--
(i) in the matter preceding paragraph (1),
by inserting ``or geolocation'' after
``phone''; and
(ii) in paragraph (4), by inserting ``or
geolocation'' after ``phone'';
(C) in subsection (b)--
(i) in the subsection heading, by inserting
``or Geolocation'' after ``Phone'';
(ii) in paragraph (1), by inserting ``or
geolocation'' after ``phone'' both places it
appears; and
(iii) in paragraph (2), by inserting ``or
geolocation'' after ``phone'';
(D) in subsection (c)--
(i) in the subsection heading, by inserting
``or Geolocation'' after ``Phone'';
(ii) in paragraph (1), by inserting ``or
geolocation'' after ``phone'' both places it
appears; and
(iii) in paragraph (2), by inserting ``or
geolocation'' after ``phone''; and
(E) in subsection (h)(1)--
(i) in the paragraph heading, by inserting
``or geolocation'' after ``phone''; and
(ii) in the matter preceding subparagraph
(A), by inserting ``or geolocation'' after
``phone''.
(2) Table of sections.--The table of sections for chapter
47 of title 18, United States Code, is amended by striking the
item relating to section 1039 and inserting the following:
``1039. Fraud and related activity in connection with obtaining
confidential phone or geolocation records
information of a covered entity.''.
(c) Sentencing Guidelines.--
(1) Review and amendment.--Not later than 180 days after
the date of enactment of this Act, the United States Sentencing
Commission, pursuant to its authority under section 994 of
title 28, United States Code, and in accordance with this
subsection, shall review and, if appropriate, amend the Federal
sentencing guidelines and policy statements applicable to
persons convicted of any offense under section 1039 of title
18, United States Code, as amended by this section.
(2) Authorization.--The United States Sentencing Commission
may amend the Federal sentencing guidelines in accordance with
the procedures set forth in section 21(a) of the Sentencing Act
of 1987 (28 U.S.C. 994 note) as though the authority under that
section had not expired.
SEC. 6. PROHIBITING DEVELOPMENT AND DISTRIBUTION OF STALKING APPS.
(a) In General.--Section 2512 of title 18, United States Code, is
amended--
(1) in the section heading, by striking ``electronic
communication'' and inserting ``electronic communications or
geolocation information''; and
(2) by inserting ``or geolocation information'' after ``or
electronic communications'' each place it appears.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 119 of title 18, United States Code, is amended by striking the
item relating to section 2512 and inserting the following:
``2512. Manufacture, distribution, possession, and advertising of wire,
oral, or electronic communications or
geolocation information intercepting
devices prohibited.''.
SEC. 7. FORFEITURE OF PROCEEDS OF STALKING APPS.
(a) In General.--Section 2513 of title 18, United States Code, is
amended--
(1) in the section heading, by striking ``electronic
communication'' and inserting ``electronic communications or
geolocation information''; and
(2) by inserting ``(a) In General.--'' before ``Any
electronic'';
(3) in the first sentence, by inserting ``, and any
proceeds from the use or sale of such a device,'' after
``section 2512 of this chapter''; and
(4) by adding at the end the following:
``(b) Anti-Stalking Fund.--
``(1) Fund.--There is established in the Treasury a fund,
to be known as the `Anti-Stalking Fund' (referred to in this
subsection as the `Fund'), to be administered by the Attorney
General.
``(2) Crediting of amounts.--Notwithstanding section 3302
of title 31, or any other law regarding the crediting of money
received for the Government, there shall be deposited in the
Fund an amount equal to the value of any device and all
proceeds forfeited to the United States under this section,
which shall remain available until expended.
``(3) Use of fund.--The Attorney General may, without
further appropriation, use amounts in the Fund to--
``(A) develop and provide training to law
enforcement officers, prosecutors, judges, and victim
service personnel throughout the United States
regarding relevant Federal, State, territorial, or
local law and promising practices, procedures, and
policies relating to investigating and prosecuting
stalking crimes; and
``(B) support help line and emergency response
efforts for stalking crimes.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 119 of title 18, United States Code, is amended by striking the
item relating to section 2513 and inserting the following:
``2513. Confiscation of wire, oral, or electronic communications or
geolocation information intercepting
devices.''.
SEC. 8. INFORMATION GATHERING ON THE USE OF GEOLOCATION DATA IN
VIOLENCE AGAINST WOMEN.
(a) National Crime Victimization Survey.--As soon as practicable
and not later than 1 year after the date of enactment of this Act, as
part of each National Crime Victimization Survey, the Attorney General
shall include questions examining the role that various new
technologies that use geolocation information may have in the
facilitation of domestic violence, dating violence, sexual assault, or
stalking, including the use of--
(1) global positioning system technology;
(2) smartphone mobile applications;
(3) in-car navigation devices; and
(4) geo-tagging technology.
(b) National Intimate Partner and Sexual Violence Survey.--As soon
as practicable and not later than 1 year after the date of enactment of
this Act, as part of each National Intimate Partner and Sexual Violence
Survey, the Director of the Center for Disease Control and Prevention
shall include questions relating to the use of geolocation information
as described in subsection (a).
(c) Consultation.--The Attorney General, acting through the
Director of the Office on Violence Against Women and the Director of
the National Institute of Justice, shall consult with representatives
from the Federal agencies, offices of State attorneys general, national
victim advocacy organizations, and the industries related to the
technologies described in subsection (a) to assist in the coordination
and collection of data described in subsection (a).
SEC. 9. GEOLOCATION CRIME INFORMATION AND REPORTING.
(a) Implementation.--The Attorney General shall direct the Internet
Crime Complaint Center to provide education and awareness information
to the public and law enforcement and register complaints regarding the
abuse of geolocation information to commit domestic violence, dating
violence, sexual assault, stalking, or other related crimes.
(b) Consultations.--In determining what information will be
provided to the public and collected in complaints under subsection
(a), the Attorney General shall consult with nongovernmental entities
that have demonstrated expertise relating to the abuse of the Internet
or geolocation information to commit stalking, domestic violence,
dating violence, sexual assault, or other related crimes.
(c) Report.--Not later than 18 months after the date of enactment
of this Act, the Attorney General shall submit to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of the House
of Representatives a report that discusses and summarizes the
information collected in complaints filed under subsection (a).
SEC. 10. NATIONAL GEOLOCATION CURRICULUM DEVELOPMENT.
(a) In General.--The Attorney General, through the Director of the
Office on Violence Against Women, may make grants to entities to
develop and provide training to law enforcement officers, prosecutors,
judges, and victim service personnel throughout the United States
regarding relevant Federal, State, territorial, or local law and
promising practices, procedures, and policies relating to investigating
and prosecuting the misuse of geolocation information in the commission
of stalking, domestic violence, dating violence, sexual assault, and
other crimes.
(b) Application.--An eligible entity desiring a grant under this
section shall submit an application to the Attorney General at such
time, in such manner, and accompanied by such information as the
Attorney General may reasonably require.
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