Cooper Davis Act

II Calendar No. 200 118TH CONGRESS 1ST SESSION S. 1080 To amend the Controlled Substances Act to require electronic communication service providers and remote computing services to report to the Attorney General certain controlled substances violations. IN THE SENATE OF THE UNITED STATES MARCH 30, 2023 Mr. MARSHALL (for himself, Mrs. SHAHEEN, Mr. DURBIN, Mr. GRASSLEY, Ms. KLOBUCHAR, and Mr. YOUNG) introduced the following bill; which was read twice and referred to the Committee on the Judiciary SEPTEMBER 5, 2023 Reported by Mr. DURBIN, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To amend the Controlled Substances Act to require electronic communication service providers and remote computing services to report to the Attorney General certain con- trolled substances violations. 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 ‘‘Cooper Davis Act’’. 4 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1080 RS SEC. 2. REPORTING REQUIREMENTS OF ELECTRONIC COM- 1 MUNICATION SERVICE PROVIDERS AND RE- 2 MOTE COMPUTING SERVICES FOR CERTAIN 3 CONTROLLED SUBSTANCES VIOLATIONS. 4 (a) AMENDMENTS TO CONTROLLED SUBSTANCES 5 ACT.— 6 (1) IN GENERAL.—Part E of the Controlled 7 Substances Act (21 U.S.C. 871 et seq.) is amended 8 by adding at the end the following: 9 ‘‘SEC. 521. REPORTING REQUIREMENTS OF ELECTRONIC 10 COMMUNICATION SERVICE PROVIDERS AND 11 REMOTE COMPUTING SERVICES FOR CER- 12 TAIN CONTROLLED SUBSTANCES VIOLA- 13 TIONS. 14 ‘‘(a) DEFINITIONS.—In this section, the terms ‘elec- 15 tronic communication service’, ‘electronic mail address’, 16 ‘provider’, ‘remote computing service’, and ‘website’ have 17 the meanings given those terms in section 2258E of title 18 18, United States Code. 19 ‘‘(b) DUTY TO REPORT.— 20 ‘‘(1) IN GENERAL.— 21 ‘‘(A) DUTY.—In order to reduce the pro- 22 liferation of the unlawful sale, distribution, or 23 manufacture (as applicable) of counterfeit con- 24 trolled substances and certain controlled sub- 25 stances, a provider— 26 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1080 RS ‘‘(i) shall, as soon as reasonably pos- 1 sible after obtaining actual knowledge of 2 any facts or circumstances described in 3 paragraph (2)(A), take the actions de- 4 scribed in subparagraph (B); 5 ‘‘(ii) may, after obtaining actual 6 knowledge of any facts or circumstances 7 described in paragraph (2)(B), take the ac- 8 tions described in subparagraph (B); 9 ‘‘(iii) may, if the provider reasonably 10 believes that any facts or circumstances 11 described in paragraph (2)(A) exist, take 12 the actions described in subparagraph (B); 13 and 14 ‘‘(iv) shall, if a submission to the pro- 15 vider by a user, subscriber, or customer of 16 the provider alleges facts or circumstances 17 described in paragraph (2) and the pro- 18 vider upon review has a reasonable belief 19 that the alleged facts or circumstances 20 exist, take the actions described in sub- 21 paragraph (B). 22 ‘‘(B) ACTIONS DESCRIBED.—The actions 23 described in this subparagraph are— 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1080 RS ‘‘(i) providing to the Drug Enforce- 1 ment Administration the mailing address, 2 telephone number, facsimile number, and 3 electronic mailing address of, and indi- 4 vidual point of contact for, such provider; 5 and 6 ‘‘(ii) making a report of such facts or 7 circumstances to the Drug Enforcement 8 Administration. 9 ‘‘(2) FACTS AND CIRCUMSTANCES.— 10 ‘‘(A) VIOLATIONS.—The facts or cir- 11 cumstances described in this subparagraph are 12 any facts or circumstances that indicate a viola- 13 tion has occurred involving— 14 ‘‘(i) the unlawful sale or distribution 15 of— 16 ‘‘(I) fentanyl; or 17 ‘‘(II) methamphetamine; or 18 ‘‘(ii) the unlawful sale, distribution, or 19 manufacture of a counterfeit controlled 20 substance. 21 ‘‘(B) IMMINENT VIOLATIONS.—The facts 22 or circumstances described in this subparagraph 23 are any facts or circumstances that indicate 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1080 RS that a violation described in subparagraph (A) 1 may be planned or imminent. 2 ‘‘(c) CONTENTS OF REPORT.— 3 ‘‘(1) IN GENERAL.—In an effort to prevent fu- 4 ture violations described in subsection (b)(2)(A), and 5 to the extent the information is within the custody 6 or control of a provider, the facts and circumstances 7 included in each report under subsection (b)(1) may, 8 at the sole discretion of the provider, except as pro- 9 vided in paragraph (2), include the following infor- 10 mation: 11 ‘‘(A) INFORMATION ABOUT THE INVOLVED 12 INDIVIDUAL.—Information relating to the iden- 13 tity of any individual who has committed a vio- 14 lation or plans to commit a violation described 15 in subsection (b)(2)(A), which may, to the ex- 16 tent reasonably practicable, include the elec- 17 tronic mail address, Internet Protocol address, 18 uniform resource locator, payment information 19 (excluding personally identifiable information), 20 screen names or monikers for the account used 21 or any other accounts associated with the indi- 22 vidual, or any other identifying information, in- 23 cluding self-reported identifying information. 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1080 RS ‘‘(B) HISTORICAL REFERENCE.—Informa- 1 tion relating to when and how a customer or 2 subscriber of a provider uploaded, transmitted, 3 or received content relating to the report or 4 when and how content relating to the report 5 was reported to or discovered by the provider, 6 including a date and time stamp and time zone. 7 ‘‘(C) GEOGRAPHIC LOCATION INFORMA- 8 TION.—Information relating to the geographic 9 location of the involved individual or website, 10 which may include the Internet Protocol ad- 11 dress or verified address, or, if not reasonably 12 available, at least one form of geographic iden- 13 tifying information, including area code or ZIP 14 Code, provided by the customer or subscriber, 15 or stored or obtained by the provider, and any 16 information as to whether a virtual private net- 17 work was used. 18 ‘‘(D) DATA RELATING TO CERTAIN CON- 19 TROLLED SUBSTANCES VIOLATIONS.—Any data, 20 including symbols, photos, video, icons, or direct 21 messages, relating to activity involving a viola- 22 tion described in subsection (b)(2)(A) or other 23 content relating to the incident such report is 24 regarding. 25 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1080 RS ‘‘(E) COMPLETE COMMUNICATION.—The 1 complete communication containing the intent 2 to commit a violation described in subsection 3 (b)(2)(A), including— 4 ‘‘(i) any data or information regard- 5 ing the transmission of the communication; 6 and 7 ‘‘(ii) any data or other digital files 8 contained in, or attached to, the commu- 9 nication. 10 ‘‘(2) EXCEPTION.—In the case of a report 11 under subsection (b)(1) that is mandated under sub- 12 paragraph (A)(iv) of that subsection— 13 ‘‘(A) the provider shall include in the re- 14 port the information submitted to the provider 15 by the user, subscriber, or customer; and 16 ‘‘(B) the provider may include in the re- 17 port any information described in paragraph (1) 18 that the user, subscriber, or customer did not 19 submit to the provider. 20 ‘‘(d) FORWARDING OF REPORT TO OTHER FEDERAL 21 LAW ENFORCEMENT AGENCIES, STATE AND LOCAL LAW 22 ENFORCEMENT AGENCIES, AND FOREIGN LAW ENFORCE- 23 MENT AGENCIES.—The Drug Enforcement Administra- 24 tion shall make available each report made under sub- 25 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1080 RS section (b)(1) to other Federal law enforcement agencies, 1 State and local law enforcement agencies, and foreign law 2 enforcement agencies involved in the investigation of viola- 3 tions described in subsection (b)(2)(A), unless the Drug 4 Enforcement Administration will conduct the investigation 5 of the report. 6 ‘‘(e) ATTORNEY GENERAL RESPONSIBILITIES.— 7 ‘‘(1) IN GENERAL.—The Attorney General shall 8 enforce this section. 9 ‘‘(2) DESIGNATION OF FEDERAL AGENCIES.— 10 The Attorney General may designate a Federal law 11 enforcement agency or agencies to which the Drug 12 Enforcement Administration shall forward a report 13 under subsection (d). 14 ‘‘(3) DESIGNATION OF FOREIGN AGENCIES.— 15 The Attorney General may— 16 ‘‘(A) in consultation with the Secretary of 17 State, designate foreign law enforcement agen- 18 cies to which a report may be forwarded under 19 subsection (d); 20 ‘‘(B) establish the conditions under which 21 such a report may be forwarded to such agen- 22 cies; and 23 ‘‘(C) develop a process for foreign law en- 24 forcement agencies to request assistance from 25 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1080 RS Federal law enforcement agencies in obtaining 1 evidence related to a report referred under sub- 2 section (d). 3 ‘‘(4) REPORTING DESIGNATED FOREIGN AGEN- 4 CIES.—The Attorney General may maintain and 5 make available to the Department of State, pro- 6 viders, the Committee on the Judiciary of the Sen- 7 ate, and the Committee on the Judiciary of the 8 House of Representatives a list of the foreign law 9 enforcement agencies designated under paragraph 10 (3). 11 ‘‘(5) NOTIFICATION TO PROVIDERS.— 12 ‘‘(A) IN GENERAL.—The Drug Enforce- 13 ment Administration may notify a provider of 14 the information described in subparagraph (B), 15 if— 16 ‘‘(i) a provider notifies the Drug En- 17 forcement Administration that the provider 18 is making a report under this section as 19 the result of a request by a foreign law en- 20 forcement agency; and 21 ‘‘(ii) the Drug Enforcement Adminis- 22 tration forwards the report described in 23 clause (i) to— 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1080 RS ‘‘(I) the requesting foreign law 1 enforcement agency; or 2 ‘‘(II) another agency in the same 3 country designated by the Attorney 4 General under paragraph (3). 5 ‘‘(B) INFORMATION DESCRIBED.—The in- 6 formation described in this subparagraph is— 7 ‘‘(i) the identity of the foreign law en- 8 forcement agency to which the report was 9 forwarded; and 10 ‘‘(ii) the date on which the report was 11 forwarded. 12 ‘‘(C) NOTIFICATION OF INABILITY TO FOR- 13 WARD REPORT.—If a provider notifies the Drug 14 Enforcement Administration that the provider 15 is making a report under this section as the re- 16 sult of a request by a foreign law enforcement 17 agency and the Drug Enforcement Administra- 18 tion is unable to forward the report as de- 19 scribed in subparagraph (A)(ii), the Drug En- 20 forcement Administration shall notify the pro- 21 vider that the Drug Enforcement Administra- 22 tion was unable to forward the report. 23 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1080 RS ‘‘(f) FAILURE TO REPORT.—A provider that know- 1 ingly and willfully fails to make a report required under 2 subsection (b)(1) shall be fined— 3 ‘‘(1) in the case of an initial knowing and will- 4 ful failure to make a report, not more than 5 $190,000; and 6 ‘‘(2) in the case of any second or subsequent 7 knowing and willful failure to make a report, not 8 more than $380,000. 9 ‘‘(g) PROTECTION OF PRIVACY.—Nothing in this sec- 10 tion shall be construed to require a provider to— 11 ‘‘(1) monitor any user, subscriber, or customer 12 of that provider; 13 ‘‘(2) monitor the content of any communication 14 of any person described in paragraph (1); or 15 ‘‘(3) affirmatively search, screen, or scan for 16 facts or circumstances described in subsections (b) 17 and (c). 18 ‘‘(h) CONDITIONS OF DISCLOSURE OF INFORMATION 19 CONTAINED WITHIN REPORT.— 20 ‘‘(1) IN GENERAL.—Except as provided in para- 21 graph (2), a law enforcement agency that receives a 22 report under subsection (d) shall not disclose any in- 23 formation contained in that report. 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1080 RS ‘‘(2) PERMITTED DISCLOSURES BY LAW EN- 1 FORCEMENT.—A law enforcement agency may dis- 2 close information in a report received under sub- 3 section (d)— 4 ‘‘(A) to an attorney for the government for 5 use in the performance of the official duties of 6 that attorney; 7 ‘‘(B) to such officers and employees of that 8 law enforcement agency, as may be necessary in 9 the performance of their investigative and rec- 10 ordkeeping functions; 11 ‘‘(C) to such other government personnel 12 (including personnel of a State or subdivision of 13 a State) as are determined to be necessary by 14 an attorney for the government to assist the at- 15 torney in the performance of the official duties 16 of the attorney in enforcing Federal criminal 17 law; 18 ‘‘(D) if the report discloses a violation of 19 State criminal law, to an appropriate official of 20 a State or subdivision of a State for the pur- 21 pose of enforcing such State law; 22 ‘‘(E) to a defendant in a criminal case or 23 the attorney for that defendant to the extent 24 VerDate Sep 11 2014 01:01 Sep 06, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6401 E:\BILLS\S1080.RS S1080 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1080 RS the information relates to a criminal charge 1 pending against that defendant; 2 ‘‘(F) to a provider if necessary to facilitate 3 response to legal process issued in connection to 4 a criminal investigation, prosecution, or post- 5 conviction remedy relating to that report; and 6 ‘‘(G) as ordered by a court upon a showing 7 of good cause and pursuant to any protective 8 orders or other conditions that the court may 9 impose. 10 ‘‘(i) PRESERVATION. 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