[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5323 Introduced in House (IH)]
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114th CONGRESS
2d Session
H. R. 5323
To amend title 18, United States Code, to safeguard data stored abroad,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 25, 2016
Mr. Marino (for himself and Ms. DelBene) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to safeguard data stored abroad,
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 ``International Communications Privacy
Act''.
SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSE.
Congress finds the following:
(1) The Electronic Communications Privacy Act of 1986
(Public Law 99-508; 100 Stat. 1848) (referred to in this
section as ``ECPA'') was intended to protect the privacy of
electronic communications stored with providers of electronic
communications services and remote computing services, while
balancing the legitimate needs of law enforcement to access
records stored by such providers.
(2) To strike this balance, ECPA authorized governmental
entities to obtain certain categories of communications data
from providers using established, pre-existing forms of process
warrants and subpoenas. It also created a new form of court
order, in section 2703(d) of title 18, United States Code, that
governmental entities could use to obtain additional types of
communications data.
(3) Congress recognizes the legitimate needs of law
enforcement agencies in the United States to obtain, through
lawful process, electronic communications relevant to criminal
investigations, as well as the privacy interests of citizens of
foreign countries. Therefore, where the Government seeks to
obtain the contents of electronic communications of foreign
citizens located outside of the United States, this Act
authorizes the use of search warrants only if the foreign
government does not have a Law Enforcement Cooperation
Agreement with the United States or, if it does have such a Law
Enforcement Cooperation Agreement, the foreign government does
not object to disclosure.
SEC. 3. EXTENSION AND CLARIFICATION OF WARRANT REQUIREMENT.
(a) In General.--Chapter 121 of title 18, United States Code, is
amended--
(1) in section 2702(a), by amending paragraph (3) to read
as follows:
``(3) a provider of remote computing service or electronic
communication service to the public shall not knowingly divulge
to any governmental entity the contents of any communication
described in section 2703(a), or any record or other
information pertaining to a subscriber or customer of such
service.'';
(2) in section 2703--
(A) by striking subsections (a) and (b) and
inserting the following:
``(a) Contents of Wire or Electronic Communication in Electronic
Storage.--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, regardless of where such contents may be in electronic
storage or otherwise stored, held, or maintained, 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. An
application for a warrant under this section shall include a full and
complete statement of the facts and circumstances relied upon and the
investigative steps taken to ascertain the nationality and location of
the subscriber or customer whose contents are sought by the warrant.
Any such warrant may be used to require the disclosure of contents of a
wire or electronic communication only if the court finds that--
``(1) the governmental entity has taken all reasonable
steps to establish the nationality and location of the
subscriber or customer whose contents are sought; and
``(2) at the time the warrant application is made--
``(A) there are reasonable grounds to believe that
the subscriber or customer whose contents are sought by
the warrant is--
``(i) a United States person;
``(ii) physically located within the United
States;
``(iii) a national of or located in a
foreign country or countries where any of those
countries has an applicable Law Enforcement
Cooperation Agreement with the United States
(or in the case where the warrant application
is made on behalf of a foreign government
pursuant to a Law Enforcement Cooperation
Agreement with the United States, any of those
countries has an applicable Law Enforcement
Cooperation Agreement with the requesting
foreign government) and the Central Authority
for each such country with such a Law
Enforcement Cooperation Agreement provides
written certification that the disclosure may
be had or does not object to the disclosure
within 60 days after formal submission of a
request for such certification; or
``(iv) a national of and located in a
foreign country or countries where none of
those countries have an applicable Law
Enforcement Cooperation Agreement with the
United States (or in the case where the warrant
application is made on behalf of a foreign
government pursuant to a Law Enforcement
Cooperation Agreement with the United States,
none of those countries have an applicable Law
Enforcement Cooperation Agreement with the
requesting foreign government); or
``(B) there are no reasonable grounds on which to
base a belief as to either the nationality or the
location of the subscriber or customer whose contents
are sought.
``(b) Warrant Requirements.--Upon a motion made promptly by the
service provider, a court issuing a warrant under this section shall
modify or vacate such warrant if--
``(1) the court finds that the warrant does not meet the
requirements of this section or is otherwise unlawful; or
``(2) the service provider presents additional information
about the subscriber's or customer's physical location, status
as a United States person, or status as a national of a foreign
country that would cause the court to find that the warrant
application would not comply with the requirements of this
section.'';
(B) in subsection (d), in the first sentence--
(i) by striking ``(b) or'';
(ii) by striking ``the contents of a wire
or electronic communication, or''; and
(iii) by striking ``sought, are'' and
inserting ``sought are''; and
(C) by adding at the end the following:
``(h) Rule of Construction.--Nothing in this section or in section
2702 shall be construed to limit the authority of a governmental entity
to use an administrative subpoena authorized under a Federal or State
statute or to use a Federal or State grand jury, trial, or civil
discovery subpoena to--
``(1) require an originator, addressee, or intended
recipient of an electronic communication to disclose the
contents of the electronic communication to the governmental
entity; or
``(2) require an entity that provides electronic
communication services to the officers, directors, employees,
or agents of the entity (for the purpose of carrying out their
duties) to disclose the contents of an electronic communication
to or from an officer, director, employee, or agent of the
entity to a governmental entity, if the electronic
communication is held, stored, or maintained on an electronic
communications system owned or operated by the entity.'';
(3) in section 2704(a)(1), by striking ``section
2703(b)(2)'' and inserting ``section 2703''; and
(4) in section 2711--
(A) in paragraph (3)(B) by striking ``warrants;
and'' and inserting ``warrants;'';
(B) in paragraph (4) by striking ``thereof.'' and
inserting ``thereof;''; and
(C) by adding at the end the following:
``(5) the term `United States person' means a citizen of
the United States or an alien lawfully admitted for permanent
residence (as defined in section 101(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)));
``(6) the term `Law Enforcement Cooperation Agreement'
means--
``(A) a mutual legal assistance treaty, mutual
legal assistance agreement, adherence to the Convention
on Cybercrime, signed November 21, 2001; or
``(B) an executive agreement or treaty between the
United States and one or more countries designed to
establish a reciprocal process for notifying and
obtaining the consent of the other country or countries
in order to obtain the contents of electronic
communication pursuant to section 2703(a)(1)(A)(iii),
provided that the Attorney General shall maintain a
list of countries with which the United States has such
agreements and shall submit such list, as and when
amended, to the Committees on the Judiciary and Foreign
Relations of the United States Senate and the
Committees on the Judiciary and Foreign Affairs of the
United States House of Representatives, and shall make
it available to the public;
``(7) the term `Central Authority' means the agency,
department, office, or authority of a country responsible for
administering a particular Law Enforcement Cooperation
Agreement between that country and another; and
``(8) the term `national of a foreign country' means a
citizen, a lawful resident, or an entity organized under the
laws of a foreign jurisdiction.''.
(b) Rule of Construction.--Nothing in this Act or the amendments
made by this Act shall be construed to expand the investigative
authority of any governmental entity.
SEC. 4. MUTUAL LEGAL ASSISTANCE TREATY REFORMS.
(a) Mutual Legal Assistance Treaty Transparency and Efficiency.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Attorney General shall establish--
(A) a form for use by a foreign government filing a
mutual legal assistance treaty request (referred to in
this section as an ``MLAT request''), which shall--
(i) be made available on the website of the
Department of Justice; and
(ii) require sufficient information and be
susceptible for use by a foreign government to
provide all the information necessary for the
MLAT request;
(B) an online docketing system for all MLAT
requests, which shall allow a foreign government to
track the status of an MLAT request filed by the
foreign government; and
(C) a process through which certified approval may
be sought for disclosure pursuant to warrants issued
under section 2703(a).
(2) Annual publication.--Beginning not later than 1 year
after the date of enactment of this Act, and each year
thereafter, the Attorney General shall publish on the website
of the Department of Justice statistics on--
(A)(i) the number of MLAT requests made by the
Department of Justice to foreign governments for the
purpose of obtaining the contents of an electronic
communication or other information or records from a
provider of electronic communications or remote
computing services; and
(ii) the average length of time taken by foreign
governments to process the MLAT requests described in
clause (i); and
(B)(i) the number of MLAT requests made to the
Department of Justice by foreign governments for the
purpose of obtaining the contents of an electronic
communication or other information or records from a
provider of electronic communications or remote
computing services; and
(ii) the average length of time taken by the
Department of Justice to process the MLAT requests
described in clause (i).
(3) Notice to department of state.--The Attorney General
shall notify the Secretary of State not later than 7 days after
the date on which disclosure of electronic communications
content to a foreign government is made pursuant to an MLAT
request.
(b) Preservation of Records.--The Attorney General may issue a
request pursuant to section 2703(f) of title 18, United States Code,
upon receipt of an MLAT request that appears to be facially valid.
(c) Notification to Provider of MLAT Request.--When the Attorney
General makes use of the process provided in section 2703 of title 18,
United States Code, to obtain information from an electronic
communications provider or a remote computing provider based on an MLAT
request, the Attorney General shall notify that provider in writing
that the request has been made pursuant to a mutual legal assistance
treaty.
SEC. 5. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) data localization requirements imposed by foreign
governments on data providers are--
(A) incompatible with the borderless nature of the
Internet;
(B) an impediment to online innovation; and
(C) unnecessary to meet the needs of law
enforcement; and
(2) the Department of Justice, the Department of State, and
the United States Trade Representatives should pursue open data
flow policies with foreign nations.
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