International Communications Privacy Act

Summary: International Communications Privacy Act This bill amends the federal criminal code by allowing a governmental entity to require providers of electronic communication services or remote computing services to disclose the contents of communications in electronic storage (e.g., the cloud), regardless of where those communications are located. Thus, a governmental entity may obtain a warrant for electronic communications stored outside of the United States if certain conditions for obtaining the warrant are met. The bill allows a governmental entity to obtain those communications only if a court finds that the governmental entity has taken all reasonable steps to establish the nationality and location of the subscriber or customer whose communications are sought and that there are reasonable grounds to believe that such subscriber or customer is a U.S. person, a person physically located within the United States, or a national of a foreign country that has a law enforcement cooperation agreement with the United States. The Department of Justice must: (1) establish a process for foreign governments to file mutual legal assistance treaty requests for obtaining access to electronic communications, and (2) publish annually information concerning those requests.  

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.