Lawful Access to Encrypted Data Act

I 116TH CONGRESS 2D SESSION H. R. 7891 To improve the ability of law enforcement agencies to access encrypted data, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JULY 30, 2020 Mrs. WAGNER introduced the following bill; which was referred to the Com- mittee on the Judiciary, and in addition to the Committees on Intel- ligence (Permanent Select), and Science, Space, and Technology, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the com- mittee concerned A BILL To improve the ability of law enforcement agencies to access encrypted data, 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 ‘‘Lawful Access to 4 Encrypted Data Act’’. 5 SEC. 2. TABLE OF CONTENTS. 6 The table of contents for this Act is as follows: 7 Sec. 1. Short title. Sec. 2. Table of contents. VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 7891 IH TITLE I—DATA AT REST Sec. 101. Data at rest. TITLE II—DATA IN MOTION Sec. 201. Assistance. Sec. 202. Capability. Sec. 203. CALEA amendment. TITLE III—ASSISTANCE CAPABILITY DIRECTIVES Sec. 301. Assistance capability directives. TITLE IV—PEN REGISTER AND TRAP AND TRACE AMENDMENTS Sec. 401. Capability requirements. Sec. 402. Defining technical assistance. TITLE V—FISA AMENDMENTS Sec. 501. Electronic surveillance within the United States for foreign intel- ligence purposes. Sec. 502. Physical searches within the United States for foreign intelligence purposes. Sec. 503. Pen register; trap and trace. Sec. 504. Business records. Sec. 505. Certain acquisitions inside the United States targeting United States persons outside the United States. TITLE VI—PRIZE COMPETITION Sec. 601. Findings. Sec. 602. Definitions. Sec. 603. Prize competition. Sec. 604. Implementation. Sec. 605. Judges. Sec. 606. Report to Congress. Sec. 607. Authorization of appropriations. Sec. 608. Termination of authority. TITLE VII—LAWFUL ACCESS TRAINING Sec. 701. Lawful access training program. TITLE VIII—EFFECTIVE DATE Sec. 801. Effective date. TITLE I—DATA AT REST 1 SEC. 101. DATA AT REST. 2 (a) IN GENERAL.—Chapter 205 of title 18, United 3 States Code, is amended by adding at the end the fol- 4 lowing: 5 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 7891 IH ‘‘§ 3119. Assistance orders to third parties and capa- 1 bility requirements 2 ‘‘(a) DEFINITIONS.—In this section— 3 ‘‘(1) the term ‘consumer electronic device’ 4 means a device that— 5 ‘‘(A) may be purchased by a member of 6 the general public; and 7 ‘‘(B) can be configured to store 1 gigabyte 8 of data or more; 9 ‘‘(2) the term ‘court of competent jurisdiction’ 10 means— 11 ‘‘(A) a district court of the United States 12 (including a magistrate judge of such a court) 13 or a United States court of appeals; and 14 ‘‘(B) a court of general criminal jurisdic- 15 tion of a State authorized by the law of that 16 State to issue search warrants; 17 ‘‘(3) the term ‘device manufacturer’ means a 18 person who designs, manufactures, fabricates, or as- 19 sembles a finished consumer electronic device; 20 ‘‘(4) the term ‘governmental entity’ has the 21 meaning given the term in section 2711; 22 ‘‘(5) the term ‘operating system provider’ 23 means a person who designs, markets, or sells soft- 24 ware that— 25 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 7891 IH ‘‘(A) controls the operation of a consumer 1 electronic device; and 2 ‘‘(B) directs the processing of programs on 3 the consumer electronic device (such as by as- 4 signing storage space in memory and control- 5 ling input and output functions); 6 ‘‘(6) the term ‘remote computing service’ has 7 the meaning given the term in section 2711; and 8 ‘‘(7) the term ‘State’ means any State of the 9 United States, the District of Columbia, the Com- 10 monwealth of Puerto Rico, and any territory or pos- 11 session of the United States. 12 ‘‘(b) COURT ORDER FOR ASSISTANCE.— 13 ‘‘(1) IN GENERAL.—A court of competent juris- 14 diction, in support of a search warrant based upon 15 probable cause issued by the court that authorizes 16 the search of an electronic device or remotely stored 17 electronic information, shall, upon receiving a mo- 18 tion described in paragraph (3) that states reason- 19 able grounds to believe that the assistance required 20 by the order will aid in the execution of the warrant, 21 order a device manufacturer, an operating system 22 provider, a provider of remote computing service, or 23 another person to furnish all information, facilities, 24 and assistance necessary to access information 25 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 7891 IH stored on an electronic device or to access remotely 1 stored electronic information, as authorized by the 2 search warrant. 3 ‘‘(2) ASSISTANCE.—The information, facilities, 4 and assistance ordered to be furnished under para- 5 graph (1) shall include— 6 ‘‘(A) isolating the information authorized 7 to be searched; 8 ‘‘(B) decrypting or decoding information 9 on the electronic device or remotely stored elec- 10 tronic information that is authorized to be 11 searched, or otherwise providing such informa- 12 tion in an intelligible format, unless the inde- 13 pendent actions of an unaffiliated entity make 14 it technically impossible to do so; and 15 ‘‘(C) providing technical support as nec- 16 essary to ensure effective execution of the war- 17 rant for the electronic devices particularly de- 18 scribed by the warrant. 19 ‘‘(3) MOTION.—An attorney for a governmental 20 entity may move that the court issue an order under 21 this subsection— 22 ‘‘(A) after a search warrant that author- 23 izes the search of an electronic device or re- 24 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 7891 IH motely stored electronic information has been 1 issued; or 2 ‘‘(B) concurrently with an application for a 3 search warrant described in subparagraph (A). 4 ‘‘(4) COMPENSATION AND EXEMPTION FROM LI- 5 ABILITY.— 6 ‘‘(A) IN GENERAL.—Subject to subpara- 7 graph (B), a device manufacturer, operating 8 system provider, provider of remote computing 9 service, or other person furnishing information, 10 facilities, or assistance pursuant to an order 11 issued under this subsection— 12 ‘‘(i) shall be compensated for reason- 13 able expenses directly incurred in com- 14 plying with the order; and 15 ‘‘(ii) may not be held civilly liable to 16 any party for any action taken that is rea- 17 sonably necessary to comply with the 18 order. 19 ‘‘(B) LIMITATION.—Reasonable expenses 20 under subparagraph (A) may not exceed $300. 21 ‘‘(c) CAPABILITY TO ASSIST.— 22 ‘‘(1) DEVICE MANUFACTURERS.—A device man- 23 ufacturer that sold more than 1,000,000 consumer 24 electronic devices in the United States in 2016 or 25 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 7891 IH any calendar year thereafter, or that has received an 1 assistance capability directive under section 3513, 2 shall ensure that the manufacturer has the ability to 3 provide the assistance described in subsection (b)(2) 4 for any consumer electronic device that the manufac- 5 turer— 6 ‘‘(A) designs, manufactures, fabricates, or 7 assembles; and 8 ‘‘(B) intends for sale or distribution in the 9 United States. 10 ‘‘(2) PROVIDERS OF REMOTE COMPUTING SERV- 11 ICE; OPERATING SYSTEM PROVIDERS.—A provider of 12 remote computing service or operating system pro- 13 vider that provided service to more than 1,000,000 14 subscribers or users in the United States in 2016 or 15 any calendar year thereafter, or that has received an 16 assistance capability directive under section 3513, 17 shall ensure that the provider has the ability to pro- 18 vide the assistance described in subparagraphs (A) 19 and (B) of subsection (b)(2) for any remotely stored 20 data that the provider processes or stores. 21 ‘‘(3) CONTRACTING AUTHORIZED.—A device 22 manufacturer, provider of remote computing service, 23 or operating system provider may satisfy the obliga- 24 tions under this subsection by contracting with any 25 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 7891 IH other United States person or entity to provide the 1 required assistance. 2 ‘‘(4) COSTS.—A device manufacturer, provider 3 of remote computing service, or operating system 4 provider to which this subsection applies shall bear 5 the costs associated with the development of the ca- 6 pability required under this subsection, including 7 any contracting costs incurred by the device manu- 8 facturer, provider of remote computing service, or 9 operating system provider under paragraph (3), un- 10 less the manufacturer or provider has received an 11 assistance capability directive under section 3513.’’. 12 (b) TECHNICAL AND CONFORMING AMENDMENT.— 13 The table of sections for chapter 205 of title 18, United 14 States Code, is amended by adding at the end the fol- 15 lowing: 16 ‘‘3119. Assistance orders to third parties and capability requirements.’’. (c) APPLICABILITY.—The obligation under section 17 3119(c)(1) of title 18, United States Code, as added by 18 subsection (a), shall apply with respect to a consumer elec- 19 tronic device manufactured on or after the effective date 20 in section 801 of this Act. 21 TITLE II—DATA IN MOTION 22 SEC. 201. ASSISTANCE. 23 Section 2518(4) of title 18, United States Code, is 24 amended, in the undesignated matter following paragraph 25 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 7891 IH (e), by striking ‘‘with a minimum of interference with the 1 services that such service provider, landlord, custodian, or 2 person is according the person whose communications are 3 to be intercepted. Any provider of wire or electronic com- 4 munication service, landlord, custodian or other person 5 furnishing such facilities or technical assistance shall be 6 compensated therefor by the applicant for reasonable ex- 7 penses incurred in providing such facilities or assistance.’’ 8 and inserting the following: ‘‘in a manner designed to up- 9 hold the nondisclosure obligations under section 10 2511(2)(a)(ii). 11 Such furnishing of information, facilities, and technical as- 12 sistance shall include— 13 ‘‘(i) isolating all communications au- 14 thorized to be intercepted; 15 ‘‘(ii) decrypting, decoding, or other- 16 wise providing in an intelligible format the 17 communications authorized to be inter- 18 cepted, unless the independent actions of 19 an unaffiliated entity make it technically 20 impossible to do so; and 21 ‘‘(iii) delivering all communications 22 authorized to be intercepted securely, reli- 23 ably, and concurrently with their trans- 24 mission. 25 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 7891 IH Any provider of wire or electronic communication service, 1 landlord, custodian, or other person furnishing such infor- 2 mation, facilities, or technical assistance shall be com- 3 pensated therefor by the applicant for reasonable expenses 4 directly incurred in providing such information, facilities, 5 or assistance.’’. 6 SEC. 202. CAPABILITY. 7 (a) IN GENERAL.—Chapter 119 of title 18, United 8 States Code, is amended by adding at the end the fol- 9 lowing: 10 ‘‘§ 2524. Capability requirements 11 ‘‘(a) IN GENERAL.—A provider of wire or electronic 12 communication service that had more than 1,000,000 13 monthly active users in the United States in January 2016 14 or any month thereafter, or has received an assistance ca- 15 pability directive under section 3513, shall ensure that the 16 provider has the ability to provide the information, facili- 17 ties, and technical assistance described in section 2518(4). 18 ‘‘(b) CALCULATION OF MONTHLY ACTIVE USERS.— 19 For purposes of subsection (a), the number of monthly 20 active users of a wire or electronic communication service 21 shall be calculated by taking the average of the number 22 of individual users or subscribers of the service that are 23 active per month in any calendar year. 24 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 7891 IH ‘‘(c) COSTS.—A provider of wire or electronic commu- 1 nication service to which subsection (a) applies shall bear 2 any costs associated with the development of the capability 3 required under that subsection, unless the provider has re- 4 ceived an assistance capability directive under section 5 3513.’’. 6 (b) TECHNICAL AND CONFORMING AMENDMENT.— 7 The table of sections for chapter 119 of title 18, United 8 States Code, is amended by adding at the end the fol- 9 lowing: 10 ‘‘2524. Capability requirements.’’. SEC. 203. CALEA AMENDMENT. 11 (a) IN GENERAL.—Section 103(b)(3) of the Commu- 12 nications Assistance for Law Enforcement Act (47 U.S.C. 13 1002(b)(3)) is amended— 14 (1) by striking ‘‘, or ensuring the government’s 15 ability to decrypt,’’; 16 (2) by striking ‘‘the encryption was provided’’ 17 and inserting ‘‘the means of encryption or other en- 18 coding was implemented by or facilitated’’; and 19 (3) by striking ‘‘and the carrier possesses the 20 information necessary to decrypt the communica- 21 tion’’. 22 VerDate Sep 11 2014 04:30 Aug 22, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H7891.IH H7891 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 7891 IH TITLE III—ASSISTANCE 1 CAPABILITY DIRECTIVES 2 SEC. 301. ASSISTANCE CAPABILITY DIRECTIVES. 3 (a) IN GENERAL.—Chapter 223 of title 18, United 4 States Code, is amended by adding at the end the fol- 5 lowing: 6 ‘‘§ 3513. Assistance capability directives 7 ‘‘(a) DEFINITIONS.—The definitions in sections 2510 8 and 3119 shall apply to this section. 9 ‘‘(b) CONTENTS OF [Text truncated for display. Full text available on Congress.gov.]