Email Privacy Act

I 116TH CONGRESS 2D SESSION H. R. 8961 To amend title 18, United States Code, to update the privacy protections for electronic communications information that is stored by third-party service providers in order to protect consumer privacy interests while meeting law enforcement needs, and for other purposes. IN THE HOUSE OF REPRESENTATIVES DECEMBER 14, 2020 Mr. NADLER (for himself, Mr. SENSENBRENNER, Ms. DELBENE, and Mr. RODNEY DAVIS of Illinois) introduced the following bill; which was re- ferred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to update the privacy protections for electronic communications information that is stored by third-party service providers in order to protect consumer privacy interests while meeting law enforcement needs, 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 ‘‘Email Privacy Act’’. 4 SEC. 2. VOLUNTARY DISCLOSURE CORRECTIONS. 5 (a) IN GENERAL.—Section 2702 of title 18, United 6 States Code, is amended— 7 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 8961 IH (1) in subsection (a)— 1 (A) in paragraph (1)— 2 (i) by striking ‘‘divulge’’ and inserting 3 ‘‘disclose’’; and 4 (ii) by striking ‘‘while in electronic 5 storage by that service’’ and inserting 6 ‘‘that is in electronic storage with or other- 7 wise stored, held, or maintained by that 8 service’’; 9 (B) in paragraph (2)— 10 (i) by striking ‘‘to the public’’; 11 (ii) by striking ‘‘divulge’’ and insert- 12 ing ‘‘disclose’’; and 13 (iii) by striking ‘‘which is carried or 14 maintained on that service’’ and inserting 15 ‘‘that is stored, held, or maintained by that 16 service’’; and 17 (C) in paragraph (3)— 18 (i) by striking ‘‘divulge’’ and inserting 19 ‘‘disclose’’; and 20 (ii) by striking ‘‘a provider of’’ and in- 21 serting ‘‘a person or entity providing’’; 22 (2) in subsection (b)— 23 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 8961 IH (A) in the matter preceding paragraph (1), 1 by inserting ‘‘wire or electronic’’ before ‘‘com- 2 munication’’; 3 (B) by amending paragraph (1) to read as 4 follows: 5 ‘‘(1) to an originator, addressee, or intended re- 6 cipient of such communication, to the subscriber or 7 customer on whose behalf the provider stores, holds, 8 or maintains such communication, or to an agent of 9 such addressee, intended recipient, subscriber, or 10 customer;’’; and 11 (C) by amending paragraph (3) to read as 12 follows: 13 ‘‘(3) with the lawful consent of the originator, 14 addressee, or intended recipient of such communica- 15 tion, or of the subscriber or customer on whose be- 16 half the provider stores, holds, or maintains such 17 communication;’’; 18 (3) in subsection (c) by inserting ‘‘wire or elec- 19 tronic’’ before ‘‘communications’’; 20 (4) in each of subsections (b) and (c), by strik- 21 ing ‘‘divulge’’ and inserting ‘‘disclose’’; and 22 (5) in subsection (c), by amending paragraph 23 (2) to read as follows: 24 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 8961 IH ‘‘(2) with the lawful consent of the subscriber 1 or customer;’’. 2 SEC. 3. AMENDMENTS TO REQUIRED DISCLOSURE SEC- 3 TION. 4 Section 2703 of title 18, United States Code, is 5 amended— 6 (1) by striking subsections (a) through (c) and 7 inserting the following: 8 ‘‘(a) CONTENTS OF WIRE OR ELECTRONIC COMMU- 9 NICATIONS IN ELECTRONIC STORAGE.—Except as pro- 10 vided in subsections (i) and (j), a governmental entity may 11 require the disclosure by a provider of electronic commu- 12 nication service of the contents of a wire or electronic com- 13 munication that is in electronic storage with or otherwise 14 stored, held, or maintained by that service only if the gov- 15 ernmental entity obtains a warrant issued using the proce- 16 dures described in the Federal Rules of Criminal Proce- 17 dure (or, in the case of a State court, issued using State 18 warrant procedures) that— 19 ‘‘(1) is issued by a court of competent jurisdic- 20 tion; and 21 ‘‘(2) may indicate the date by which the pro- 22 vider must make the disclosure to the governmental 23 entity. 24 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 8961 IH In the absence of a date on the warrant indicating the 1 date by which the provider must make disclosure to the 2 governmental entity, the provider shall promptly respond 3 to the warrant. 4 ‘‘(b) CONTENTS OF WIRE OR ELECTRONIC COMMU- 5 NICATIONS IN A REMOTE COMPUTING SERVICE.— 6 ‘‘(1) IN GENERAL.—Except as provided in sub- 7 sections (i) and (j), a governmental entity may re- 8 quire the disclosure by a provider of remote com- 9 puting service of the contents of a wire or electronic 10 communication that is stored, held, or maintained by 11 that service only if the governmental entity obtains 12 a warrant issued using the procedures described in 13 the Federal Rules of Criminal Procedure (or, in the 14 case of a State court, issued using State warrant 15 procedures) that— 16 ‘‘(A) is issued by a court of competent ju- 17 risdiction; and 18 ‘‘(B) may indicate the date by which the 19 provider must make the disclosure to the gov- 20 ernmental entity. 21 In the absence of a date on the warrant indicating 22 the date by which the provider must make disclosure 23 to the governmental entity, the provider shall 24 promptly respond to the warrant. 25 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 8961 IH ‘‘(2) APPLICABILITY.—Paragraph (1) is appli- 1 cable with respect to any wire or electronic commu- 2 nication that is stored, held, or maintained by the 3 provider— 4 ‘‘(A) on behalf of, and received by means 5 of electronic transmission from (or created by 6 means of computer processing of communica- 7 tion received by means of electronic trans- 8 mission from), a subscriber or customer of such 9 remote computing service; and 10 ‘‘(B) solely for the purpose of providing 11 storage or computer processing services to such 12 subscriber or customer, if the provider is not 13 authorized to access the contents of any such 14 communications for purposes of providing any 15 services other than storage or computer proc- 16 essing. 17 ‘‘(c) RECORDS CONCERNING ELECTRONIC COMMU- 18 NICATION SERVICE OR REMOTE COMPUTING SERVICE.— 19 ‘‘(1) IN GENERAL.—Except as provided in sub- 20 sections (i) and (j), a governmental entity may re- 21 quire the disclosure by a provider of electronic com- 22 munication service or remote computing service of a 23 record or other information pertaining to a sub- 24 scriber to or customer of such service (not including 25 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 8961 IH the contents of wire or electronic communications), 1 only— 2 ‘‘(A) if a governmental entity obtains a 3 warrant issued using the procedures described 4 in the Federal Rules of Criminal Procedure (or, 5 in the case of a State court, issued using State 6 warrant procedures) that— 7 ‘‘(i) is issued by a court of competent 8 jurisdiction directing the disclosure; and 9 ‘‘(ii) may indicate the date by which 10 the provider must make the disclosure to 11 the governmental entity; 12 ‘‘(B) if a governmental entity obtains a 13 court order directing the disclosure under sub- 14 section (d); 15 ‘‘(C) with the lawful consent of the sub- 16 scriber or customer; or 17 ‘‘(D) as otherwise authorized in paragraph 18 (2). 19 ‘‘(2) SUBSCRIBER OR CUSTOMER INFORMA- 20 TION.—A provider of electronic communication serv- 21 ice or remote computing service shall, in response to 22 an administrative subpoena authorized by Federal or 23 State statute, a grand jury, trial, or civil discovery 24 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 8961 IH subpoena, or any means available under paragraph 1 (1), disclose to a governmental entity the— 2 ‘‘(A) name; 3 ‘‘(B) address; 4 ‘‘(C) local and long distance telephone con- 5 nection records, or records of session times and 6 durations; 7 ‘‘(D) length of service (including start 8 date) and types of service used; 9 ‘‘(E) telephone or instrument number or 10 other subscriber or customer number or iden- 11 tity, including any temporarily assigned net- 12 work address; and 13 ‘‘(F) means and source of payment for 14 such service (including any credit card or bank 15 account number), 16 of a subscriber or customer of such service. 17 ‘‘(3) NOTICE NOT REQUIRED.—A governmental 18 entity that receives records or information under 19 this subsection is not required to provide notice to 20 a subscriber or customer.’’; 21 (2) in subsection (d)— 22 (A) by striking ‘‘(b) or’’; 23 (B) by striking ‘‘the contents of a wire or 24 electronic communication, or’’; 25 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 8961 IH (C) by striking ‘‘sought,’’ and inserting 1 ‘‘sought’’; and 2 (D) by striking ‘‘section’’ and inserting 3 ‘‘subsection’’; and 4 (3) by adding at the end the following: 5 ‘‘(h) NOTICE.—Except as provided in section 2705, 6 a provider of electronic communication service or remote 7 computing service may notify a subscriber or customer of 8 a receipt of a warrant, court order, subpoena, or request 9 under subsection (a), (b), (c), or (d) of this section. 10 ‘‘(i) RULE OF CONSTRUCTION RELATED TO LEGAL 11 PROCESS.—Nothing in this section or in section 2702 12 shall limit the authority of a governmental entity to use 13 an administrative subpoena authorized by Federal or 14 State statute, a grand jury, trial, or civil discovery sub- 15 poena, or a warrant issued using the procedures described 16 in the Federal Rules of Criminal Procedure (or, in the 17 case of a State court, issued using State warrant proce- 18 dures) by a court of competent jurisdiction to— 19 ‘‘(1) require an originator, addressee, or in- 20 tended recipient of a wire or electronic communica- 21 tion to disclose a wire or electronic communication 22 (including the contents of that communication) to 23 the governmental entity; 24 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 8961 IH ‘‘(2) require a person or entity that provides an 1 electronic communication service to the officers, di- 2 rectors, employees, or agents of the person or entity 3 (for the purpose of carrying out their duties) to dis- 4 close a wire or electronic communication (including 5 the contents of that communication) to or from the 6 person or entity itself or to or from an officer, direc- 7 tor, employee, or agent of the entity to a govern- 8 mental entity, if the wire or electronic communica- 9 tion is stored, held, or maintained on an electronic 10 communications system owned, operated, or con- 11 trolled by the person or entity; or 12 ‘‘(3) require a person or entity that provides a 13 remote computing service or electronic communica- 14 tion service to disclose a wire or electronic commu- 15 nication (including the contents of that communica- 16 tion) that advertises or promotes a product or serv- 17 ice and that has been made readily accessible to the 18 general public. 19 ‘‘(j) RULE OF CONSTRUCTION RELATED TO CON- 20 GRESSIONAL SUBPOENAS.—Nothing in this section or in 21 section 2702 shall limit the power of inquiry vested in the 22 Congress by article I of the Constitution of the United 23 States, including the authority to compel the production 24 of a wire or electronic communication (including the con- 25 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 8961 IH tents of a wire or electronic communication) that is stored, 1 held, or maintained by a person or entity that provides 2 remote computing service or electronic communication 3 service.’’. 4 SEC. 4. DELAYED NOTICE. 5 Section 2705 of title 18, United States Code, is 6 amended to read as follows: 7 ‘‘§ 2705. Delayed notice 8 ‘‘(a) IN GENERAL.—A governmental entity acting 9 under section 2703 may apply to a court for an order di- 10 recting a provider of electronic communication service or 11 remote computing service to which a warrant, order, sub- 12 poena, or other directive under section 2703 is directed 13 not to notify any other person of the existence of the war- 14 rant, order, subpoena, or other directive. 15 ‘‘(b) DETERMINATION.—A court shall grant a re- 16 quest for an order made under subsection (a) for delayed 17 notification of up to 180 days if the court determines that 18 there is reason to believe that notification of the existence 19 of the warrant, order, subpoena, or other directive will 20 likely result in— 21 ‘‘(1) endangering the life or physical safety of 22 an individual; 23 ‘‘(2) flight from prosecution; 24 ‘‘(3) destruction of or tampering with evidence; 25 VerDate Sep 11 2014 00:28 Dec 28, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8961.IH H8961 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 8961 IH ‘‘(4) intimidation of potential witnesses; or 1 ‘‘(5) otherwise seriously jeopardizing an inves- 2 tigation or unduly delaying a trial. 3 ‘‘(c) EXTENSION.—Upon request by a governmental 4 entity, a court may grant one or more extensions, for peri- 5 ods of up to 180 days each, of an order granted in accord- 6 ance with subsection (b).’’. 7 SEC. 5. RULE OF CONSTRUCTION. 8 Nothing in this Act or an amendment made by this 9 Act shall be construed to preclude the acquisition by the 10 United States Government of— 11 (1) the contents of a wire or electronic commu- 12 nication pursuant to other lawful authorities, includ- 13 ing the authorities under chapter 119 of title 18 14 (commonly known as the ‘‘Wiretap Act’’), the For- 15 eign Intelligence Surveillance Act of 1978 (50 16 U.S.C. 1801 et seq.), or any other provision of Fed- 17 eral law not specifically amended by this Act; or 18 (2) records or other information relating to a 19 subscri [Text truncated for display. Full text available on Congress.gov.]