I 

113TH CONGRESS 

1ST SESSION H. R. 1852 

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 

MAY 7, 2013 

Mr. YODER (for himself and Mr. GRAVES of Georgia) introduced the following 

bill; which was referred 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. 

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 ‘‘Email Privacy Act’’. 


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1 SEC. 2. CONFIDENTIALITY OF ELECTRONIC COMMUNICA2 TIONS. 

3 Section 2702(a)(3) of title 18, United States Code, 

4 is amended to read as follows: 

5 ‘‘(3) a provider of remote computing service or 

6 electronic communication service to the public shall 

7 not knowingly divulge to any governmental entity 

8 the contents of any communication described in sec9 tion 2703(a), or any record or other information 

10 pertaining to a subscriber or customer of such serv11 ice.’’. 

12 SEC. 3. ELIMINATION OF 180-DAY RULE; SEARCH WARRANT 

13 REQUIREMENT; REQUIRED DISCLOSURE OF 

14 CUSTOMER RECORDS. 

15 (a) IN GENERAL.—Section 2703 of title 18, United 

16 States Code, is amended— 

17 (1) by striking subsections (a), (b), and (c) and 

18 inserting the following: 

19 ‘‘(a) CONTENTS OF WIRE OR ELECTRONIC COMMU20 NICATIONS.—A governmental entity may require the dis21 closure by a provider of electronic communication service 

22 or remote computing service of the contents of a wire or 

23 electronic communication that is in electronic storage with 

24 or otherwise stored, held, or maintained by the provider 

25 only if the governmental entity obtains a warrant issued 

26 using the procedures described in the Federal Rules of 


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1 Criminal Procedure (or, in the case of a State court, 

2 issued using State warrant procedures) that is issued by 

3 a court of competent jurisdiction directing the disclosure. 

4 ‘‘(b) NOTICE.—Except as provided in section 2705, 

5 not later than 10 business days in the case of a law en6 forcement agency, or not later than 3 business days in 

7 the case of any other governmental entity, after a govern8 mental entity receives the contents of a wire or electronic 

9 communication of a subscriber or customer from a pro10 vider of electronic communication service or remote com11 puting service under subsection (a), the governmental en12 tity shall serve upon, or deliver to by registered or first13 class mail, electronic mail, or other means reasonably cal14 culated to be effective, as specified by the court issuing 

15 the warrant, the subscriber or customer— 

16 ‘‘(1) a copy of the warrant; and 

17 ‘‘(2) a notice that includes the information re18 ferred to in clauses (i) and (ii) of section 

19 2705(a)(4)(B). 

20 ‘‘(c) RECORDS CONCERNING ELECTRONIC COMMU21 NICATION SERVICE OR REMOTE COMPUTING SERVICE.— 

22 ‘‘(1) IN GENERAL.—Subject to paragraph (2), a 

23 governmental entity may require a provider of elec24 tronic communication service or remote computing 

25 service to disclose a record or other information perVerDate Mar 15 2010 04:23 May 09, 2013 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1852.IH H1852

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1 taining to a subscriber or customer of the provider 

2 or service (not including the contents of communica3 tions), only if the governmental entity— 

4 ‘‘(A) obtains a warrant issued using the 

5 procedures described in the Federal Rules of 

6 Criminal Procedure (or, in the case of a State 

7 court, issued using State warrant procedures) 

8 that is issued by a court of competent jurisdic9 tion directing the disclosure; 

10 ‘‘(B) obtains a court order directing the 

11 disclosure under subsection (d); 

12 ‘‘(C) has the consent of the subscriber or 

13 customer to the disclosure; or 

14 ‘‘(D) submits a formal written request rel15 evant to a law enforcement investigation con16 cerning telemarketing fraud for the name, ad17 dress, and place of business of a subscriber or 

18 customer of the provider or service that is en19 gaged in telemarketing (as defined in section 

20 2325). 

21 ‘‘(2) INFORMATION TO BE DISCLOSED.—A pro22 vider of electronic communication service or remote 

23 computing service shall, in response to an adminis24 trative subpoena authorized by Federal or State 

25 statute, a grand jury, trial, or civil discovery subVerDate Mar 15 2010 04:23 May 09, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1852.IH H1852

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1 poena, or any means authorized under paragraph 

2 (1), disclose to a governmental entity the— 

3 ‘‘(A) name; 

4 ‘‘(B) address; 

5 ‘‘(C) local and long distance telephone con6 nection records, or records of session times and 

7 durations; 

8 ‘‘(D) length of service (including start 

9 date) and types of service used; 

10 ‘‘(E) telephone or instrument number or 

11 other subscriber number or identity, including 

12 any temporarily assigned network address; and 

13 ‘‘(F) means and source of payment for 

14 such service (including any credit card or bank 

15 account number), of a subscriber or customer of 

16 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.’’; and 

21 (2) by adding at the end the following: 

22 ‘‘(h) RULE OF CONSTRUCTION.—Nothing in this sec23 tion or in section 2702 shall be construed to limit the au24 thority of a governmental entity to use an administrative 

25 subpoena authorized under a Federal or State statute or 


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1 to use a Federal or State grand jury, trial, or civil dis2 covery subpoena to— 

3 ‘‘(1) require an originator, addressee, or in4 tended recipient of an electronic communication to 

5 disclose the contents of the electronic communication 

6 to the governmental entity; or 

7 ‘‘(2) require an entity that provides electronic 

8 communication services to the officers, directors, em9 ployees, or agents of the entity (for the purpose of 

10 carrying out their duties) to disclose the contents of 

11 an electronic communication to or from an officer, 

12 director, employee, or agent of the entity to a gov13 ernmental entity, if the electronic communication is 

14 held, stored, or maintained on an electronic commu15 nications system owned or operated by the entity.’’. 

16 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

17 Section 2703(d) of title 18, United States Code, is amend18 ed— 

19 (1) by striking ‘‘A court order for disclosure 

20 under subsection (b) or (c)’’ and inserting ‘‘A court 

21 order for disclosure under subsection (c)’’; and 

22 (2) by striking ‘‘the contents of a wire or elec23 tronic communication, or’’. 


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1 SEC. 4. DELAYED NOTICE. 

2 Section 2705 of title 18, United States Code, is 

3 amended to read as follows: 

4 ‘‘SEC. 2705. DELAYED NOTICE. 

5 ‘‘(a) DELAY OF NOTIFICATION.— 

6 ‘‘(1) IN GENERAL.—A governmental entity that 

7 is seeking a warrant under section 2703(a) may in8 clude in the application for the warrant a request for 

9 an order delaying the notification required under 

10 section 2703(b) for a period of not more than 180 

11 days in the case of a law enforcement agency, or not 

12 more than 90 days in the case of any other govern13 mental entity. 

14 ‘‘(2) DETERMINATION.—A court shall grant a 

15 request for delayed notification made under para16 graph (1) if the court determines that there is rea17 son to believe that notification of the existence of the 

18 warrant may result in— 

19 ‘‘(A) endangering the life or physical safety 

20 of an individual; 

21 ‘‘(B) flight from prosecution; 

22 ‘‘(C) destruction of or tampering with evi23 dence; 

24 ‘‘(D) intimidation of potential witnesses; or 

25 ‘‘(E) otherwise seriously jeopardizing an 

26 investigation or unduly delaying a trial. 


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1 ‘‘(3) EXTENSION.—Upon request by a govern2 mental entity, a court may grant one or more exten3 sions of the delay of notification granted under para4 graph (2) of not more than 180 days in the case of 

5 a law enforcement agency, or not more than 90 days 

6 in the case of any other governmental entity. 

7 ‘‘(4) EXPIRATION OF THE DELAY OF NOTIFICA8 TION.—Upon expiration of the period of delay of no9 tification under paragraph (2) or (3), the govern10 mental entity shall serve upon, or deliver to by reg11 istered or first-class mail, electronic mail, or other 

12 means reasonably calculated to be effective as speci13 fied by the court approving the search warrant, the 

14 customer or subscriber— 

15 ‘‘(A) a copy of the warrant; and 

16 ‘‘(B) notice that informs the customer or 

17 subscriber— 

18 ‘‘(i) of the nature of the law enforce19 ment inquiry with reasonable specificity; 

20 ‘‘(ii) that information maintained for 

21 the customer or subscriber by the provider 

22 of electronic communication service or re23 mote computing service named in the proc24 ess or request was supplied to, or re25 quested by, the governmental entity; 


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1 ‘‘(iii) of the date on which the warrant 

2 was served on the provider and the date on 

3 which the information was provided by the 

4 provider to the governmental entity; 

5 ‘‘(iv) that notification of the customer 

6 or subscriber was delayed; 

7 ‘‘(v) the identity of the court author8 izing the delay; and 

9 ‘‘(vi) of the provision of this chapter 

10 under which the delay was authorized. 

11 ‘‘(b) PRECLUSION OF NOTICE TO SUBJECT OF GOV12 ERNMENTAL ACCESS.— 

13 ‘‘(1) IN GENERAL.—A governmental entity that 

14 is obtaining the contents of a communication or in15 formation or records under section 2703 may apply 

16 to a court for an order directing a provider of elec17 tronic communication service or remote computing 

18 service to which a warrant, order, subpoena, or other 

19 directive under section 2703 is directed not to notify 

20 any other person of the existence of the warrant, 

21 order, subpoena, or other directive for a period of 

22 not more than 180 days in the case of a law enforce23 ment agency, or not more than 90 days in the case 

24 of any other governmental entity. 


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1 ‘‘(2) DETERMINATION.—A court shall grant a 

2 request for an order made under paragraph (1) if 

3 the court determines that there is reason to believe 

4 that notification of the existence of the warrant, 

5 order, subpoena, or other directive may result in— 

6 ‘‘(A) endangering the life or physical safety 

7 of an individual; 

8 ‘‘(B) flight from prosecution; 

9 ‘‘(C) destruction of or tampering with evi10 dence; 

11 ‘‘(D) intimidation of potential witnesses; or 

12 ‘‘(E) otherwise seriously jeopardizing an 

13 investigation or unduly delaying a trial. 

14 ‘‘(3) EXTENSION.—Upon request by a govern15 mental entity, a court may grant one or more exten16 sions of an order granted under paragraph (2) of 

17 not more than 180 days in the case of a law enforce18 ment agency, or not more than 90 days in the case 

19 of any other governmental entity. 

20 ‘‘(4) PRIOR NOTICE TO LAW ENFORCEMENT.— 

21 Upon expiration of the period of delay of notice 

22 under this section, and not later than 3 business 

23 days before providing notice to a customer or sub24 scriber, a provider of electronic communication serv25 ice or remote computing service shall notify the govVerDate Mar 15 2010 04:23 May 09, 2013 Jkt 029200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1852.IH H1852

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1 ernmental entity that obtained the contents of a 

2 communication or information or records under sec3 tion 2703 of the intent of the provider of electronic 

4 communication service or remote computing service 

5 to notify the customer or subscriber of the existence 

6 of the warrant, order, or subpoena seeking that in7 formation. 

8 ‘‘(c) DEFINITION.—In this section and section 2703, 

9 the term ‘law enforcement agency’ means an agency of the 

10 United States, a State, or a political subdivision of a 

11 State, authorized by law or by a government agency to 

12 engage in or supervise the prevention, detection, investiga13 tion, or prosecution of any violation of criminal law, or 

14 any other Federal or State agency conducting a criminal 

15 investigation.’’. 

16 SEC. 5. EVALUATION BY THE GOVERNMENT ACCOUNT17 ABILITY OFFICE. 

18 Not later than September 30, 2015, the Comptroller 

19 General of the United States shall submit to Congress a 

20 report regarding the disclosure of customer communica21 tions and records under section 2703 of title 18, United 

22 States Code, which shall include— 

23 (1) an analysis and evaluation of such disclo24 sure under section 2703 of title 18, United States 


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1 Code, as in effect before the date of enactment of 

2 this Act, including— 

3 (A) a comprehensive analysis and evalua4 tion regarding the number of individual in5 stances, in each of the 5 years before the year 

6 in which this Act is enacted, in which Federal, 

7 State, or local law enforcement officers used 

8 section 2703 of title 18, United States Code, to 

9 obtain information relevant to an ongoing 

10 criminal investigation; 

11 (B) an analysis of the average length of 

12 time taken by a provider of an electronic com13 munication service or a remote computing serv14 ice to comply with requests by law enforcement 

15 officers for information under section 2703 of 

16 title 18, United States Code; 

17 (C) the number of individual instances, in 

18 each of the 5 years before the year in which 

19 this Act is enacted, in which information was 

20 requested by law enforcement officers from a 

21 provider of an electronic communication service 

22 or a remote computing service under a warrant 

23 as authorized under section 2703(a) of title 18, 

24 United States Code; 


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1 (D) the number of individual instances and 

2 type of request, in each of the 5 years before 

3 the year in which this Act is enacted, in which 

4 information was requested by law enforcement 

5 officers from a provider of an electronic com6 munication service or a remote computing serv7 ice under the other information request provi8 sions in section 2703 of title 18, United States 

9 Code; and 

10 (E) the number of individual instances, in 

11 each of the 5 years before the year in which 

12 this Act is enacted, in which law enforcement 

13 officers requested delayed notification to the 

14 subscriber or customer under section 2705 of 

15 title 18, United States Code; and 

16 (2) an analysis and evaluation of such disclo17 sure under section 2703 of title 18, United States 

18 Code, as amended by this Act, including— 

19 (A) an evaluation of the effects of the 

20 amendments to the warrant requirements on 

21 judges, court dockets, or any other court oper22 ations; 

23 (B) a survey of Federal, State, and local 

24 judges and law enforcement officers to deter25 mine the average length of time required for 


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1 providers of an electronic communication serv2 ice or a remote computing service to provide the 

3 contents of communications requested under a 

4 search warrant, which shall include identifying 

5 the number of instances in which a judge was 

6 required to order a provider of an electronic 

7 communication service or a remote computing 

8 service to appear to show cause for failing to 

9 comply with a warrant or to issue an order of 

10 contempt against a provider of an electronic 

11 communication service or a remote computing 

12 service for such a failure; and 

13 (C) determining whether the amendments 

14 to the warrant requirements resulted in an in15 crease in the use of the emergency exception 

16 under section 2702(b)(8) of title 18, United 

17 States Code. 

18 SEC. 6. RULE OF CONSTRUCTION. 

19 Nothing in this Act or an amendment made by this 

20 Act shall be construed to preclude the acquisition by the 

21 United States Government of— 

22 (1) the contents of a wire or electronic commu23 nication pursuant to other lawful authorities, includ24 ing the authorities under chapter 119 of title 18 

25 (commonly known as the ‘‘Wiretap Act’’), the ForVerDate Mar 15 2010 04:23 May 09, 2013 Jkt 029200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H1852.IH H1852

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1 eign Intelligence Surveillance Act of 1978 (50 

2 U.S.C. 1801 et seq.), or any other provision of Fed3 eral law not specifically amended by this Act; or 

4 (2) records or other information relating to a 

5 subscriber or customer of any electronic communica6 tions service or remote computing service (not in7 cluding the content of such communications) pursu8 ant to the Foreign Intelligence Surveillance Act of 

9 1978 (50 U.S.C. 1801 et seq.), chapter 119 of title 

10 18 (commonly known as the ‘‘Wiretap Act’’), or any 

11 other provision of Federal law not specifically 

12 amended by this Act. 

Æ 


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