II 

117TH CONGRESS 

2D SESSION S. 5297 

To amend the Controlled Substances Act to require electronic communication 

service providers and remote computing services to report to the Attorney 

General the unlawful sale and distribution of counterfeit substances and 

certain controlled substances. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 19, 2022 

Mr. MARSHALL (for himself and Mrs. SHAHEEN) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To amend the Controlled Substances Act to require electronic 

communication service providers and remote computing 

services to report to the Attorney General the unlawful 

sale and distribution of counterfeit substances and certain controlled substances. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Cooper Davis Act’’. 


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1 SEC. 2. REPORTING REQUIREMENTS OF ELECTRONIC COM2 MUNICATION SERVICE PROVIDERS AND RE3 MOTE COMPUTING SERVICES FOR THE UN4 LAWFUL SALE AND DISTRIBUTION OF COUN5 TERFEIT SUBSTANCES AND CERTAIN CON6 TROLLED SUBSTANCES. 

7 (a) IN GENERAL.—Part E of the Controlled Sub8 stances Act (21 U.S.C. 871 et seq.) is amended by adding 

9 at the end the following: 

10 ‘‘SEC. 521. REPORTING REQUIREMENTS OF ELECTRONIC 

11 COMMUNICATION SERVICE PROVIDERS AND 

12 REMOTE COMPUTING SERVICES FOR THE UN13 LAWFUL SALE AND DISTRIBUTION OF COUN14 TERFEIT SUBSTANCES AND CERTAIN CON15 TROLLED SUBSTANCES. 

16 ‘‘(a) DEFINITIONS.—In this section, the terms ‘elec17 tronic communication service’, ‘electronic mail address’, 

18 ‘provider’, ‘remote computing service’, and ‘website’ have 

19 the meanings given those terms in section 2258E of title 

20 18, United States Code. 

21 ‘‘(b) DUTY TO REPORT.— 

22 ‘‘(1) IN GENERAL.— 

23 ‘‘(A) DUTY.—In order to reduce the pro24 liferation of the unlawful sale or distribution of 

25 counterfeit substances and certain controlled 

26 substances, a provider— 


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1 ‘‘(i) shall, as soon as reasonably pos2 sible after obtaining actual knowledge of 

3 any facts or circumstances described in 

4 paragraph (2)(A), take the actions de5 scribed in subparagraph (B); and 

6 ‘‘(ii) may, after obtaining actual 

7 knowledge of any facts or circumstances 

8 described in paragraph (2)(B), take the ac9 tions described in subparagraph (B). 

10 ‘‘(B) ACTIONS DESCRIBED.—The actions 

11 described in this subparagraph are— 

12 ‘‘(i) providing to the Drug Enforce13 ment Administration the mailing address, 

14 telephone number, facsimile number, and 

15 electronic mailing address of, and indi16 vidual point of contact for, such provider; 

17 and 

18 ‘‘(ii) making a report of such facts or 

19 circumstances to the Drug Enforcement 

20 Administration. 

21 ‘‘(2) FACTS AND CIRCUMSTANCES.— 

22 ‘‘(A) VIOLATIONS.—The facts or cir23 cumstances described in this subparagraph are 

24 any facts or circumstances that indicate a viola25 tion has occurred involving— 


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1 ‘‘(i) fentanyl; 

2 ‘‘(ii) methamphetamine; or 

3 ‘‘(iii) the manufacture of a counterfeit 

4 substance. 

5 ‘‘(B) IMMINENT VIOLATIONS.—The facts 

6 or circumstances described in this subparagraph 

7 are any facts or circumstances that indicate 

8 that a violation described in subparagraph (A) 

9 may be planned or imminent. 

10 ‘‘(c) CONTENTS OF REPORT.—In an effort to prevent 

11 future violations described in subsection (b)(2)(A), and to 

12 the extent the information is within the custody or control 

13 of a provider, the facts and circumstances included in each 

14 report under subsection (b)(1) shall include the following 

15 information: 

16 ‘‘(1) INFORMATION ABOUT THE INVOLVED IN17 DIVIDUAL.—Information relating to the identity of 

18 any individual who has committed a violation or 

19 plans to commit a violation described under sub20 section (b)(2)(A), which may, to the extent reason21 ably practicable, include the electronic mail address, 

22 Internet Protocol address, uniform resource locator, 

23 payment information (excluding personally identifi24 able information), screen names or monikers for the 

25 account used or any other accounts associated with 


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1 the individual, or any other identifying information, 

2 including self-reported identifying information. 

3 ‘‘(2) HISTORICAL REFERENCE.—Information 

4 relating to when and how a customer or subscriber 

5 of a provider uploaded, transmitted, or received con6 tent relating to the report or when and how content 

7 relating to the report was reported to or discovered 

8 by the provider, including a date and time stamp 

9 and time zone. 

10 ‘‘(3) GEOGRAPHIC LOCATION INFORMATION.— 

11 Information relating to the geographic location of 

12 the involved individual or website, which may include 

13 the Internet Protocol address or verified address, or, 

14 if not reasonably available, at least one form of geo15 graphic identifying information, including area code 

16 or ZIP Code, provided by the customer or sub17 scriber, or stored or obtained by the provider, and 

18 any information as to whether a virtual private net19 work was used. 

20 ‘‘(4) DATA RELATING TO THE SALE OF COUN21 TERFEIT SUBSTANCES AND CERTAIN CONTROLLED

22 SUBSTANCES.—Any data, including symbols, photos, 

23 video, icons, or direct messages, relating to activity 

24 involving the unlawful sale or distribution of a sub25 stance described in subsection (b)(2)(A) or other 


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1 content relating to the incident such report is re2 garding. 

3 ‘‘(5) COMPLETE COMMUNICATION.—The com4 plete communication containing the intent to unlaw5 fully sell or distribute a substance described in sub6 section (b)(2)(A), including— 

7 ‘‘(A) any data or information regarding 

8 the transmission of the communication; and 

9 ‘‘(B) any data or other digital files con10 tained in, or attached to, the communication. 

11 ‘‘(d) FORWARDING OF REPORT TO OTHER FEDERAL

12 LAW ENFORCEMENT AGENCIES, STATE AND LOCAL LAW

13 ENFORCEMENT AGENCIES, AND FOREIGN LAW ENFORCE14 MENT AGENCIES.—The Drug Enforcement Administra15 tion shall make available each report made under sub16 section (b)(1) to other Federal law enforcement agencies, 

17 State and local law enforcement agencies, and foreign law 

18 enforcement agencies involved in the investigation of viola19 tions described in subsection (b)(2)(A). 

20 ‘‘(e) ATTORNEY GENERAL RESPONSIBILITIES.— 

21 ‘‘(1) IN GENERAL.—The Attorney General shall 

22 enforce this section. 

23 ‘‘(2) DESIGNATION OF FEDERAL AGENCIES.— 

24 The Attorney General may designate a Federal law 

25 enforcement agency or agencies to which the Drug 


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1 Enforcement Administration shall forward a report 

2 under subsection (d). 

3 ‘‘(3) DESIGNATION OF FOREIGN AGENCIES.— 

4 The Attorney General may— 

5 ‘‘(A) in consultation with the Secretary of 

6 State, designate foreign law enforcement agen7 cies to which a report may be forwarded under 

8 subsection (d); 

9 ‘‘(B) establish the conditions under which 

10 such a report may be forwarded to such agen11 cies; and 

12 ‘‘(C) develop a process for foreign law en13 forcement agencies to request assistance from 

14 Federal law enforcement agencies in obtaining 

15 evidence related to a report referred under sub16 section (d). 

17 ‘‘(4) REPORTING DESIGNATED FOREIGN AGEN18 CIES.—The Attorney General may maintain and 

19 make available to the Department of State, pro20 viders, the Committee on the Judiciary of the Sen21 ate, and the Committee on the Judiciary of the 

22 House of Representatives a list of the foreign law 

23 enforcement agencies designated under paragraph 

24 (3). 

25 ‘‘(5) NOTIFICATION TO PROVIDERS.— 


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1 ‘‘(A) IN GENERAL.—The Drug Enforce2 ment Administration may notify a provider of 

3 the information described in subparagraph (B), 

4 if— 

5 ‘‘(i) a provider notifies the Drug En6 forcement Administration that the provider 

7 is making a report under this section as 

8 the result of a request by a foreign law en9 forcement agency; and 

10 ‘‘(ii) the Drug Enforcement Adminis11 tration forwards the report described in 

12 clause (i) to— 

13 ‘‘(I) the requesting foreign law 

14 enforcement agency; or 

15 ‘‘(II) another agency in the same 

16 country designated by the Attorney 

17 General under paragraph (3). 

18 ‘‘(B) INFORMATION DESCRIBED.—The in19 formation described in this subparagraph is— 

20 ‘‘(i) the identity of the foreign law en21 forcement agency to which the report was 

22 forwarded; and 

23 ‘‘(ii) the date on which the report was 

24 forwarded. 


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1 ‘‘(C) NOTIFICATION OF INABILITY TO FOR2 WARD REPORT.—If a provider notifies the Drug 

3 Enforcement Administration that the provider 

4 is making a report under this section as the re5 sult of a request by a foreign law enforcement 

6 agency and the Drug Enforcement Administra7 tion is unable to forward the report as de8 scribed in subparagraph (A)(ii), the Drug En9 forcement Administration shall notify the pro10 vider that the Drug Enforcement Administra11 tion was unable to forward the report. 

12 ‘‘(f) FAILURE TO REPORT.—A provider that know13 ingly and willfully fails to make a report required under 

14 subsection (b)(1) shall be fined— 

15 ‘‘(1) in the case of an initial knowing and will16 ful failure to make a report, not more than 

17 $190,000; and 

18 ‘‘(2) in the case of any second or subsequent 

19 knowing and willful failure to make a report, not 

20 more than $380,000. 

21 ‘‘(g) PROTECTION OF PRIVACY.—Nothing in this sec22 tion shall be construed to require a provider to— 

23 ‘‘(1) monitor any user, subscriber, or customer 

24 of that provider; 


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1 ‘‘(2) monitor the content of any communication 

2 of any person described in paragraph (1); or 

3 ‘‘(3) affirmatively search, screen, or scan for 

4 facts or circumstances described in subsections (b) 

5 and (c). 

6 ‘‘(h) CONDITIONS OF DISCLOSURE OF INFORMATION

7 CONTAINED WITHIN REPORT.— 

8 ‘‘(1) IN GENERAL.—Except as provided in para9 graph (2), a law enforcement agency that receives a 

10 report under subsection (d) shall not disclose any in11 formation contained in that report. 

12 ‘‘(2) PERMITTED DISCLOSURES BY LAW EN13 FORCEMENT.—A law enforcement agency may dis14 close information in a report received under sub15 section (d)— 

16 ‘‘(A) to an attorney for the government for 

17 use in the performance of the official duties of 

18 that attorney; 

19 ‘‘(B) to such officers and employees of that 

20 law enforcement agency, as may be necessary in 

21 the performance of their investigative and rec22 ordkeeping functions; 

23 ‘‘(C) to such other government personnel 

24 (including personnel of a State or subdivision of 

25 a State) as are determined to be necessary by 


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1 an attorney for the government to assist the at2 torney in the performance of the official duties 

3 of the attorney in enforcing Federal criminal 

4 law; 

5 ‘‘(D) if the report discloses a violation of 

6 State criminal law, to an appropriate official of 

7 a State or subdivision of a State for the pur8 pose of enforcing such State law; 

9 ‘‘(E) to a defendant in a criminal case or 

10 the attorney for that defendant to the extent 

11 the information relates to a criminal charge 

12 pending against that defendant; 

13 ‘‘(F) to a provider if necessary to facilitate 

14 response to legal process issued in connection to 

15 a criminal investigation, prosecution, or post16 conviction remedy relating to that report; and 

17 ‘‘(G) as ordered by a court upon a showing 

18 of good cause and pursuant to any protective 

19 orders or other conditions that the court may 

20 impose. 

21 ‘‘(i) PRESERVATION.— 

22 ‘‘(1) IN GENERAL.— 

23 ‘‘(A) REQUEST TO PRESERVE CON24 TENTS.— 


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1 ‘‘(i) IN GENERAL.—Subject to clause 

2 (ii), for the purposes of this section, a com3 pleted submission by a provider of a report 

4 to the Drug Enforcement Administration 

5 under subsection (b)(1) shall be treated as 

6 a request to preserve the contents provided 

7 in the report, and any data or other digital 

8 files that are reasonably accessible and 

9 may provide context or additional informa10 tion about the reported material or person, 

11 for 90 days after the submission to the 

12 Drug Enforcement Administration. 

13 ‘‘(ii) LIMITATIONS ON EXTENSION OF

14 PRESERVATION PERIOD.— 

15 ‘‘(I) NOTIFICATION THAT DEA

16 HAS FORWARDED REPORT TO FOR17 EIGN LAW ENFORCEMENT AGENCY.— 

18 The Drug Enforcement Administra19 tion may not extend the required pe20 riod of preservation under clause (i) 

21 on the basis of a notification by the 

22 Drug Enforcement Administration to 

23 the provider under subsection 

24 (e)(5)(A). 


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1 ‘‘(II) STORED COMMUNICATIONS

2 ACT.—The Drug Enforcement Admin3 istration may not submit a request to 

4 a provider to continue preservation of 

5 the contents of a report or other data 

6 described in clause (i) under section 

7 2703(f) of title 18, United States 

8 Code, beyond the required period of 

9 preservation under clause (i) of this 

10 subparagraph unless the Drug En11 forcement Administration intends in 

12 good faith to investigate the user, sub13 scriber, or customer account at issue 

14 in the report or make the report avail15 able to another Federal, State, or 

16 local law enforcement agency. 

17 ‘‘(III) RULE OF CONSTRUC18 TION.—Nothing in subclause (II) shall 

19 preclude another Federal, State, or 

20 local law enforcement agency from 

21 seeking continued preservation of the 

22 contents of a report or other data de23 scribed in clause (i) under section 

24 2703(f) of title 18, United States 

25 Code. 


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1 ‘‘(B) NOTIFICATION TO USER.—A provider 

2 may not notify a user, subscriber, or customer 

3 of the provider of a preservation request de4 scribed in subparagraph (A) unless— 

5 ‘‘(i) the provider has notified the 

6 Drug Enforcement Administration of its 

7 intent to provide that notice; and 

8 ‘‘(ii) 5 business days have elapsed 

9 since the notification under clause (i). 

10 ‘‘(2) PROTECTION OF PRESERVED MATE11 RIALS.—A provider preserving materials under this 

12 section shall maintain the materials in a secure loca13 tion and take appropriate steps to limit access to the 

14 materials by agents or employees of the service to 

15 that access necessary to comply with the require16 ments of this subsection. 

17 ‘‘(3) AUTHORITIES AND DUTIES NOT AF18 FECTED.—Nothing in this section shall be construed 

19 as replacing, amending, or otherwise interfering with 

20 the authorities and duties under section 2703 of title 

21 18, United States Code.’’. 

22 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

23 The table of contents for the Controlled Substances Act 

24 (21 U.S.C. 801 et seq.) is amended by inserting after the 

25 item relating to section 520 the following: 


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‘‘Sec. 521. Reporting requirements of electronic communication service providers and remote computing services for the unlawful sale and 

distribution of counterfeit substances and certain controlled 

substances.’’. 

Æ 


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