Targeting Child Predators Act of 2020

II 116TH CONGRESS 2D SESSION S. 3973 To amend title 18, United States Code, to provide a certification process for the issuance of nondisclosure requirements accompanying certain administrative subpoenas, to provide for judicial review of such nondisclo- sure requirements, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 17, 2020 Mr. KENNEDY (for himself, Mr. COTTON, and Mr. CORNYN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to provide a certifi- cation process for the issuance of nondisclosure require- ments accompanying certain administrative subpoenas, to provide for judicial review of such nondisclosure re- quirements, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Targeting Child Preda- 4 tors Act of 2020’’. 5 VerDate Sep 11 2014 05:21 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3973.IS S3973 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 3973 IS SEC. 2. NONDISCLOSURE OF ADMINISTRATIVE SUBPOENAS. 1 Section 3486(a) of title 18, United States Code, is 2 amended— 3 (1) by striking ‘‘the Secretary of the Treasury’’ 4 each place it appears and inserting ‘‘the Secretary of 5 Homeland Security’’; 6 (2) in paragraph (5), by striking ‘‘ordered by a 7 court’’; and 8 (3) in paragraph (6)— 9 (A) in subparagraph (A), by striking ‘‘A 10 United States’’ and inserting ‘‘Except as pro- 11 vided in subparagraph (D), a United States’’; 12 and 13 (B) by adding at the end the following: 14 ‘‘(D)(i)(I) If a subpoena issued under this section as 15 described in paragraph (1)(A)(i)(II) is accompanied by a 16 certification under subclause (II) and notice of the right 17 to judicial review under clause (iii), no recipient of such 18 a subpoena shall disclose to any person that the Federal 19 official who issued the subpoena has sought or obtained 20 access to information or records under this section, for 21 a period of 180 days. 22 ‘‘(II) The requirements of subclause (I) shall apply 23 if the Federal official who issued the subpoena certifies 24 that the absence of a prohibition of disclosure under this 25 subsection may result in— 26 VerDate Sep 11 2014 05:21 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3973.IS S3973 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 3973 IS ‘‘(aa) endangering the life or physical safety of 1 an individual; 2 ‘‘(bb) flight from prosecution; 3 ‘‘(cc) destruction of or tampering with evidence; 4 ‘‘(dd) intimidation of potential witnesses; or 5 ‘‘(ee) otherwise seriously jeopardizing an inves- 6 tigation. 7 ‘‘(ii)(I) A recipient of a subpoena under this section 8 as described in paragraph (1)(A)(i)(II) may disclose infor- 9 mation otherwise subject to any applicable nondisclosure 10 requirement to— 11 ‘‘(aa) those persons to whom disclosure is nec- 12 essary in order to comply with the request; 13 ‘‘(bb) an attorney in order to obtain legal advice 14 or assistance regarding the request; or 15 ‘‘(cc) other persons as permitted by the Federal 16 official who issued the subpoena. 17 ‘‘(II) A person to whom disclosure is made under sub- 18 clause (I) shall be subject to the nondisclosure require- 19 ments applicable to a person to whom a subpoena is issued 20 under this section in the same manner as the person to 21 whom the subpoena was issued. 22 ‘‘(III) Any recipient that discloses to a person de- 23 scribed in subclause (I) information otherwise subject to 24 VerDate Sep 11 2014 05:21 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3973.IS S3973 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 3973 IS a nondisclosure requirement shall notify the person of the 1 applicable nondisclosure requirement. 2 ‘‘(IV) At the request of the Federal official who 3 issued the subpoena, any person making or intending to 4 make a disclosure under item (aa) or (cc) of subclause 5 (I) shall identify to the individual making the request 6 under this clause the person to whom such disclosure will 7 be made or to whom such disclosure was made prior to 8 the request. 9 ‘‘(iii)(I) A nondisclosure requirement imposed under 10 clause (i) shall be subject to judicial review under section 11 3486A. 12 ‘‘(II) A subpoena issued under this section as de- 13 scribed in paragraph (1)(A)(i)(II), in connection with 14 which a nondisclosure requirement under clause (i) is im- 15 posed, shall include notice of the availability of judicial re- 16 view described in subclause (I). 17 ‘‘(iv) A nondisclosure requirement imposed under 18 clause (i) may be extended in accordance with section 19 3486A(a)(4).’’. 20 SEC. 3. JUDICIAL REVIEW OF NONDISCLOSURE REQUIRE- 21 MENTS. 22 (a) IN GENERAL.—Chapter 223 of title 18, United 23 States Code, is amended by inserting after section 3486 24 the following: 25 VerDate Sep 11 2014 05:21 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3973.IS S3973 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 3973 IS ‘‘§ 3486A. Judicial review of nondisclosure require- 1 ments 2 ‘‘(a) NONDISCLOSURE.— 3 ‘‘(1) IN GENERAL.— 4 ‘‘(A) NOTICE.—If a recipient of a sub- 5 poena under section 3486 as described in sub- 6 section (a)(1)(A)(i)(II) of section 3486 wishes 7 to have a court review a nondisclosure require- 8 ment imposed in connection with the subpoena, 9 the recipient may notify the Government or file 10 a petition for judicial review in any court de- 11 scribed in subsection (a)(5) of section 3486. 12 ‘‘(B) APPLICATION.—Not later than 30 13 days after the date of receipt of a notification 14 under subparagraph (A), the Government shall 15 apply for an order prohibiting the disclosure of 16 the existence or contents of the relevant sub- 17 poena. An application under this subparagraph 18 may be filed in the district court of the United 19 States for the judicial district in which the re- 20 cipient of the subpoena is doing business or in 21 the district court of the United States for any 22 judicial district within which the authorized in- 23 vestigation that is the basis for the subpoena is 24 being conducted. The applicable nondisclosure 25 requirement shall remain in effect during the 26 VerDate Sep 11 2014 05:21 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3973.IS S3973 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 3973 IS pendency of proceedings relating to the require- 1 ment. 2 ‘‘(C) CONSIDERATION.—A district court of 3 the United States that receives a petition under 4 subparagraph (A) or an application under sub- 5 paragraph (B) should rule expeditiously, and 6 shall, subject to paragraph (3), issue a non- 7 disclosure order that includes conditions appro- 8 priate to the circumstances. 9 ‘‘(2) APPLICATION CONTENTS.—An application 10 for a nondisclosure order or extension thereof or a 11 response to a petition filed under paragraph (1) 12 shall include a certification from the Federal official 13 who issued the subpoena indicating that the absence 14 of a prohibition of disclosure under this subsection 15 may result in— 16 ‘‘(A) endangering the life or physical safety 17 of an individual; 18 ‘‘(B) flight from prosecution; 19 ‘‘(C) destruction of or tampering with evi- 20 dence; 21 ‘‘(D) intimidation of potential witnesses; or 22 ‘‘(E) otherwise seriously jeopardizing an 23 investigation. 24 VerDate Sep 11 2014 05:21 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3973.IS S3973 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 3973 IS ‘‘(3) STANDARD.—A district court of the 1 United States shall issue a nondisclosure order or 2 extension thereof under this subsection if the court 3 determines that there is reason to believe that disclo- 4 sure of the information subject to the nondisclosure 5 requirement during the applicable time period may 6 result in— 7 ‘‘(A) endangering the life or physical safety 8 of an individual; 9 ‘‘(B) flight from prosecution; 10 ‘‘(C) destruction of or tampering with evi- 11 dence; 12 ‘‘(D) intimidation of potential witnesses; or 13 ‘‘(E) otherwise seriously jeopardizing an 14 investigation. 15 ‘‘(4) EXTENSION.—Upon a showing that the 16 circumstances described in subparagraphs (A) 17 through (E) of paragraph (3) continue to exist, a 18 district court of the United States may issue an ex 19 parte order extending a nondisclosure order imposed 20 under this subsection or under section 21 3486(a)(6)(D) for additional periods of 180 days, 22 or, if the court determines that the circumstances 23 necessitate a longer period of nondisclosure, for ad- 24 ditional periods which are longer than 180 days. 25 VerDate Sep 11 2014 05:21 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3973.IS S3973 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 3973 IS ‘‘(b) CLOSED HEARINGS.—In all proceedings under 1 this section, subject to any right to an open hearing in 2 a contempt proceeding, the court must close any hearing 3 to the extent necessary to prevent an unauthorized disclo- 4 sure of a request for records, a report, or other informa- 5 tion made to any person or entity under section 3486. Pe- 6 titions, filings, records, orders, certifications, and sub- 7 poenas must also be kept under seal to the extent and 8 as long as necessary to prevent the unauthorized disclo- 9 sure of a subpoena under section 3486.’’. 10 (b) CLERICAL AMENDMENT.—The table of sections 11 at the beginning of chapter 223 of title 18, United States 12 Code, is amended by inserting after the item relating to 13 section 3486 the following: 14 ‘‘3486A. Judicial review of nondisclosure requirements.’’. Æ VerDate Sep 11 2014 05:21 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S3973.IS S3973 pbinns on DSKJLVW7X2PROD with BILLS