```

[Senate Report 112-258]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 556
112th Congress  }                                           {    Report
                                 SENATE
 2d Session     }                                           {   112-258

======================================================================

 
          VIDEO PRIVACY PROTECTION ACT AMENDMENTS ACT OF 2012

                                _______
                                

               December 20, 2012.--Ordered to be printed

                                _______
                                

            Mr. Leahy, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 2471]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (H.R. 2471) to amend section 2710 of title 18, United 
States Code, to clarify that a video tape service provider may 
obtain a consumer's informed, written consent on an ongoing 
basis and that consent may be obtained through the Internet, 
having considered the same, reports favorably thereon, with an 
amendment and an amendment to the title and recommends that the 
bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Bill...............................2
 II. History of the Bill and Committee Consideration..................5
III. Section-by-Section Summary of the Bill...........................8
 IV. Congressional Budget Office Cost Estimate.......................10
  V. Regulatory Impact Evaluation....................................12
 VI. Conclusion......................................................12
VII. Additional Views of Senators Grassley, Sessions and Coburn......13
VIII.Changes to Existing Law Made by the Bill, as Reported...........21

                 I. Background and Purpose of the Bill

             A. THE VIDEO PRIVACY PROTECTION ACT AMENDMENTS

    The Video Privacy Protection Act of 1988 (``VPPA'') 
prohibits video service providers from disclosing personally 
identifiable information except in certain, limited 
circumstances. As a general rule, personally identifiable 
information may be disclosed only with the prior written 
consent of the individual. The impetus for enacting the VPPA 
occurred when a weekly newspaper in Washington, DC, published a 
profile of Judge Robert H. Bork based on the titles of 146 
films his family had rented from a video store.\1\ At the time, 
the Senate Judiciary Committee was conducting hearings on Judge 
Bork's nomination to the Supreme Court. Members of the 
Judiciary Committee denounced the disclosure.\2\
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    \1\``The Bork Tapes,'' The City Paper, Sept. 25-Oct. 1, 1987, at 
page 1.
    \2\See, S. Rep. No. 100-599, at pages 5-6 (1988).
---------------------------------------------------------------------------
    The VPPA prohibits unauthorized disclosure of personally 
identifiable information that links a customer or patron to 
particular materials or services. Individuals may bring a civil 
action for damages in the event of an unauthorized 
disclosure.\3\ The VPPA does permit the disclosure of 
personally identifiable information under appropriate and 
clearly defined circumstances. For example, the VPPA allows for 
disclosure of personally identifiable information concerning a 
consumer pursuant to a court order or ``with the informed, 
written consent of the consumer given at the time the 
disclosure is sought.''\4\ The VPPA does not limit the rights 
of consumers or patrons under State or local law.
---------------------------------------------------------------------------
    \3\See, 18 U.S.C. Sec. 2710(c).
    \4\See, 18 U.S.C. Sec. 2710(b)(2).
---------------------------------------------------------------------------
    At the time of the VPPA's enactment, consumers rented 
movies from video stores. The method that Americans used to 
watch videos in 1988--the VHS cassette tape--is now obsolete. 
In its place, the Internet has revolutionized the way that 
American consumers rent and watch movies and television 
programs. Today, so-called ``on-demand'' cable services and 
Internet streaming services allow consumers to watch movies or 
TV shows on televisions, laptop computers, and cell phones.
    The Internet has similarly revolutionized how Americans 
share information. In the 1980s, when individuals wished to 
recommend a movie to a friend, the individual would likely call 
the friend on the telephone. In the 1990s, an email would 
likely be sent. Today, many Americans post their opinions and 
recommendations on social networking sites, like Facebook and 
Twitter.
    The VPPA authorizes video tape service providers to share 
customer information with the ``informed, written consent of 
the consumer at the time the disclosure is sought.''\5\ This 
consent must be obtained from the consumer each time the 
provider wishes to disclose that information. But, similar 
restrictions do not apply to disclosures of consumer 
information relating to book or music preferences. For example, 
Americans share information about the books that they read and 
the music that they listen to via social media sites, using 
services such as Spotify or the Washington Post's social 
sharing app. However, the VPPA requires written consent to 
disclose information related to video rentals and purchases 
every time a disclosure is sought. That requirement creates 
obstacles for American consumers to share information about 
their video preferences through social media sites on an 
ongoing basis.
---------------------------------------------------------------------------
    \5\Id. at 2710(b)(2)(B).
---------------------------------------------------------------------------
    The bill addresses this limitation by amending the VPPA to 
allow consumers to provide their informed, written consent to 
disclose video viewing information--if they wish--one time in 
advance. This update to the law will allow American consumers 
to continuously share their movie or television preferences 
through social media sites. The legislation retains the privacy 
protections already in the law which requires that consumers 
``opt-in'' to the sharing of their video viewing information. 
The bill similarly retains the requirement in current law that 
consumers provide informed written consent.
    In addition, the bill provides that consumers may ``opt-
in'' to the information sharing on an ongoing basis for a 
period of up to two years at a time, and they may ``opt-out'' 
of the information sharing at any time.
    Lastly, the bill requires that the opportunity for a 
consumer to withdraw consent to the disclosure of video viewing 
information must be presented in a clear and conspicuous 
manner. The Committee intends that the language in Section 102 
of the bill requires a video tape service provider to provide 
one of two opportunities for the consumer to withdraw consent: 
on a case-by-case (i.e., per title) basis, or to withdraw 
consent for ongoing disclosures. It is not the intent of the 
Committee to specify where on a website, or in what form, the 
opportunity to withdraw consent should be provided.

        B. THE ELECTRONIC COMMUNICATIONS PRIVACY ACT AMENDMENTS

    The Electronic Communications Privacy Act (``ECPA'') 
amended Title III of the Omnibus Crime Control and Safe Streets 
Act to protect against the unauthorized interception of 
electronic communications. When Senator Leahy introduced the 
ECPA with Senator Mathias on June 19, 1986, he said that: ``The 
Electronic Communications Privacy Act provides standards by 
which law enforcement agencies may obtain access to both 
electronic communications and the records of an electronic 
communications system. These provisions are designed to protect 
legitimate law enforcement needs while minimizing intrusions on 
the privacy of system users as well as the business needs of 
electronic communications system providers.''\6\ For almost 
three decades, the ECPA has been the premier privacy law 
protecting Americans from unauthorized Government intrusions 
into their private electronic communications.
---------------------------------------------------------------------------
    \6\See Cong. Rec., June 19, 1986 at page S 7993.
---------------------------------------------------------------------------
    The Electronic Communications Privacy Act requires that the 
Government obtain a court order, based upon probable cause, in 
order to intercept wireless and data communications. The law 
also requires that the Government obtain a search warrant in 
order to compel a third-party service provider to disclose the 
content of email, or other electronic communications, that the 
provider maintains in electronic storage. However, this search 
warrant requirement for email applies only if the email is 180 
days old or less. Under the ECPA, an email is presumed to be 
abandoned after 180 days and the law allows the Government to 
compel the disclosure of older email with either a subpoena or 
a court order that is issued upon a finding that there are 
specific and articulable facts demonstrating that the 
information sought is relevant to a criminal investigation. The 
ECPA also allows the Government to use a subpoena or court 
order to compel disclosure of documents--regardless of their 
age--that a user stores in the Internet ``cloud.''\7\
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    \7\See 18 U.S.C. Sec. 2703(d).
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    At the time that Congress enacted the ECPA, Congress 
assumed that most Americans would periodically access their 
email accounts and download any emails that they wished to 
read, and that third-party service providers would subsequently 
delete any email stored on their servers. In fact, Congress 
believed that the most extended period of time that a service 
provider might store an email would be for six months. But, 
after almost three decades, new technologies--such as the 
Internet, social networking sites and cloud computing--have 
changed how Americans use and store email today. Storing 
documents and other information electronically has become much 
less expensive and mobile technologies permit users to access 
stored documents wherever the user chooses to access the 
Internet. Yet, the digital privacy protections that the 
Congress put in place by enacting ECPA have not kept pace with 
these changes.
    In March 2010, a diverse coalition of privacy and civil 
liberties advocates, major technology companies, think tanks, 
and academics wrote to Chairman Leahy to urge the Committee to 
begin work on reforming the Electronic Communications Privacy 
Act to reflect the realities of the digital age. The aptly 
named ``Digital Due Process'' coalition argued that the ECPA 
has been out-paced by changes in technology and the growth of 
email as a primary means of communicating. The Committee held 
the first of several hearings and briefings on ECPA reform in 
September 2010.
    On January 11, 2011, Chairman Leahy announced that his 
legislative agenda for the 112th Congress would include 
legislation to update the Electronic Communications Privacy Act 
to better protect Americans' digital privacy. In April 2011, 
the Committee held a second hearing on the ECPA reform effort 
that focused specifically on the perspectives of the 
Departments of Justice and Commerce on proposed updates to the 
law.\8\ On May 11, 2011, Chairman Leahy introduced the 
Electronic Communications Privacy Act Amendments Act of 2011, 
S. 1011, legislation that would, among other things, update the 
ECPA to require a search warrant for the Government to access 
the contents of any email obtained from a third-party service 
provider. On September 20, 2012, Chairman Leahy offered this 
portion of his ECPA reform bill as an amendment in the nature 
of a substitute to H.R. 2471. The Committee favorably reported 
this legislation on November 29, 2012. The reforms in the bill 
seek to carefully balance the privacy expectations of American 
citizens, the legitimate needs of law enforcement agencies and 
the interests of the American technology sector.
---------------------------------------------------------------------------
    \8\Although the Obama administration did not take an official 
position on the legislative proposals to update the ECPA, the Committee 
received technical comments and feedback on these proposals from the 
Departments of Justice and Commerce and other affected federal 
agencies.
---------------------------------------------------------------------------
    The Committee recognizes that most Americans regularly use 
email in their professional and personal lives for confidential 
communications of a personal or business nature. The Committee 
also recognizes that there is growing uncertainty about the 
constitutionality of the provisions in ECPA that allow the 
Government to obtain certain email content without a search 
warrant.\9\ The absence of clear legal standards for access to 
electronic communications content not only endangers privacy 
rights, but also endangers the admissibility of evidence in 
criminal and other legal proceedings. Accordingly, the 
Committee has determined that the law must be updated to keep 
pace with the advances in technology, to ensure the continued 
vitality of the Fourth Amendment protections for email and 
other electronic communications content.
---------------------------------------------------------------------------
    \9\In 2010, the Court of Appeals for the Sixth Circuit held that 
use of a subpoena or court order under Section 2703 of ECPA to obtain 
the contents of emails violated the Fourth Amendment's prohibition 
against warrantless searches. See United States v. Warshak, 631 F.3d 
266, 288 (6th Cir. 2010). As a result, today, a different legal 
standard applies for obtaining email content for cases arising in the 
Sixth Circuit.
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    The ECPA reforms in the bill have bipartisan support on the 
Committee, as well as the support of a broad coalition of 
privacy, civil liberties, civil rights and technology 
organizations from across the political spectrum. The 
organizations and individuals below support the principles 
embodied in the legislation:
    Technology Industry and Trade Associations: Adobe, AOL, 
eBay, Facebook, IBM, LinkedIn, Microsoft, Netflix, Symantec, 
Verizon, Business Software Alliance, Computer and 
Communications Industry Association, Newspaper Association of 
America, Software & Information Industry Alliance, and 
TechAmerica.
    Privacy, civil liberties and civil rights communities: 
American Civil Liberties Union, Americans for Tax Reform, 
American Library Association, Center for Constitutional Rights, 
Center for Democracy & Technology, Competitive Enterprise 
Institute, The Constitution Project, Electronic Frontier 
Foundation, The Leadership Conference on Civil and Human 
Rights, Liberty Coalition, Mexican American Legal Defense and 
Educational Fund, Muslim Legal Fund of America, NAACP, National 
Association of Criminal Defense Lawyers, National Hispanic 
Media Coalition, National Urban League, and TechFreedom.
    Law Enforcement Community: Zachary W. Carter, U.S. 
Attorney, Eastern District of New York (1993-1999); W. Thomas 
Dillard, Assistant U.S. Attorney, Eastern District of Tennessee 
(1967-1976, 1978-1983), U.S. Attorney, Northern District of 
Florida (1983-1986); Saul A. Green, U.S. Attorney, Eastern 
District of Michigan (1994-2001); Rodger A. Heaton, U.S. 
Attorney, Central District of Illinois (2005-2009); A. Melvin 
McDonald, U.S. Attorney, District of Arizona (1981-1985); 
Jerome F. O'Neill, U.S. Attorney, District of Vermont (1981), 
First Assistant U.S. Attorney, District of Vermont (1975-1981); 
Stephen M. Orlofsky, U.S. District Judge, District of New 
Jersey (1996-2003); U.S. Magistrate Judge, District of New 
Jersey (1976-1980); and Ron Woods, U.S. Attorney, Southern 
District of Texas (1990-1993).

          II. History of the Bill and Committee Consideration

                      A. INTRODUCTION OF THE BILL

    On July 8, 2011, Representative Goodlatte introduced H.R. 
2471--a bill to amend the Video Privacy Protection Act, Title 
18, United States Code, Section 2710, to clarify that a video 
tape service provider may obtain a consumer's informed, written 
consent to disclose video viewing information to a third party 
on an ongoing basis and that such consent may be obtained 
through the Internet. The House Committee on the Judiciary 
favorably reported H.R. 2471 with amendments on December 2, 
2011. On December 6, 2011, the House of Representatives passed 
the bill by a vote of 306 to 116. The bill was referred to the 
Senate Committee on the Judiciary on December 7, 2011.

                       B. COMMITTEE CONSIDERATION

    Chairman Leahy placed H.R. 2471 on the Committee's 
executive business agenda on September 13, 2012. The Committee 
considered this legislation on September 20, 2012, and November 
29, 2012.
    The Committee has held three hearings related to H.R. 2471. 
On September 22, 2010, the Judiciary Committee held a hearing 
entitled, ``The Electronic Communications Privacy Act: 
Promoting Security and Protecting Privacy in the Digital Age.'' 
The hearing examined several gaps in this digital privacy law 
that have resulted from changes in technology. The witnesses 
for this hearing were: Cameron F. Kerry, General Counsel, 
United States Department of Commerce; James A. Baker, Associate 
Deputy Attorney General, United States Department of Justice; 
James X. Dempsey, Vice President for Public Policy, Center for 
Democracy and Technology; Brad Smith, General Counsel and 
Senior Vice President, Legal and Corporate Affairs, Microsoft 
Corporation; and Jamil N. Jaffer, Attorney, Washington, D.C. 
During this hearing, Senator Leahy called for Congress to work 
on bipartisan legislation to update the ECPA to meet the 
privacy demands of the digital age.
    On April 6, 2011, the Judiciary Committee held a hearing 
entitled, ``The Electronic Communications Privacy Act: 
Government Perspectives on Privacy in the Digital Age.'' This 
hearing examined potential updates to the Electronic 
Communications Privacy Act to address inconsistencies in that 
law, changes in technology, and new threats to privacy and 
cybersecurity. The witnesses for this hearing were: Cameron 
Kerry, General Counsel, United States Department of Commerce, 
and James Baker, Associate Deputy Attorney General, United 
States Department of Justice.
    On January 31, 2012, the Judiciary Committee's Subcommittee 
on Privacy, Technology and the Law held a hearing on ``The 
Video Privacy Protection Act: Protecting Viewer Privacy in the 
21st Century.'' Senator Franken chaired this hearing. The 
purpose of this hearing was to examine possible updates to the 
Video Privacy Protection Act. The witnesses for this hearing 
were: Representative Mel Watt (D-NC); David Hyman, General 
Counsel, Netflix, Inc.; Professor William McGeveran, University 
of Minnesota Law School; Marc Rotenberg, Executive Director, 
Electronic Privacy Information Center (EPIC); and Christopher 
Wolf, Director, Privacy and Information Management Group, Hogan 
Lovells, LLP.
    On September 20, 2012, Chairman Leahy offered an amendment 
in the nature of a substitute for H.R. 2471, which the 
Committee adopted by consent. The substitute bill made several 
changes to the bill to enhance privacy, including adding a 
requirement to the bill that consumer consent to share video 
viewing information be a clear and conspicuous ``opt-out'' 
option. Accordingly, a video tape service provider must give 
consumers either a clear and straightforward opportunity to 
withdraw from all ongoing disclosures or a clear and 
straightforward opportunity to withdraw from ongoing 
disclosures on a case-by-case basis. The ``case-by-case'' 
option is intended to allow consumers to opt out of the sharing 
of information relating to the viewing of individual movies or 
television series.
    The Chairman's amendment also added several provisions to 
strengthen privacy protections in the Electronic Communications 
Privacy Act of 1986. Specifically, the amendment amends Title 
18, United States Code, Section 2702 to prohibit an electronic 
communication or remote computing service provider from 
voluntarily disclosing the contents of its customer's email or 
other electronic communications to the Government. The 
amendment also amends ECPA so that the disclosure of the 
content of email and other electronic communications by an 
electronic communication or remote computing service provider 
to the Government is subject to one clear legal standard--a 
search warrant issued based on a showing of probable cause. In 
addition, the amendment requires that the Government notify the 
individual whose account was disclosed, and provide that 
individual with a copy of the search warrant and other details 
about the information obtained. Such notice must be provided 
within three business days of the Government's receipt of the 
communications if the Government entity requesting the 
information is a law enforcement agency, unless the notice is 
delayed pursuant to a court order.
    On November 29, 2012, the Committee resumed consideration 
of the substitute bill. Several amendments to the bill were 
offered:
    First, Chairman Leahy offered a manager's amendment to the 
bill to address several issues raised by the law enforcement 
community. The amendment made the following changes to the 
bill: (1) adds a rule of construction provision to the bill to 
clarify that the bill does not intend to apply the Electronic 
Communications Privacy Act's warrant requirement to the Wiretap 
Act, the Foreign Intelligence Surveillance Act, or any other 
provision of Federal law; (2) extends the time period during 
which the Government must give notice from three days to 10 
business days; (3) extends the time period during which the 
Government may seek a court order to delay notice under the 
bill from 90 days to 180 days; (3) extends the time period 
during which the Government may seek a court order to preclude 
a service provider from notifying a customer about a Government 
request for communications from 90 days to 180 days; (4) adds a 
requirement that service providers notify the Government of 
their intent to inform a customer about a request for 
electronic communications content at least three business days 
before such notice is given; and (5) adds civil discovery 
subpoenas to the list of subpoenas that the Government may use 
to obtain routing information and other non-content information 
under Section 2703(c) of ECPA. The Committee adopted the 
amendment by voice vote.
    Second, Chairman Leahy offered a technical amendment to 
modify the title of the bill, which the Committee also adopted 
by voice vote.
    Third, Senator Lee offered an amendment on behalf of 
himself and Senator Cornyn to retain the original three-day 
notice requirement in the bill and 90-day delayed notification 
periods in the bill for government entities other than law 
enforcement agencies. The Committee adopted the amendment by 
voice vote.
    Fourth, Senator Feinstein offered an amendment to the video 
privacy title of the bill that requires that the time period 
during which a consumer may give ongoing consent to the 
disclosure of video viewing information shall not exceed a 
period of two years. The Committee adopted the amendment by 
voice vote.
    Lastly, Senator Grassley offered an amendment to create an 
exception to the warrant requirement for electronic 
communications content that is stored for more than 180 days in 
an electronic storage system in cases involving child abduction 
or kidnapping, child pornography, or violent crimes against 
women. The Committee rejected the amendment by roll call vote. 
The vote record is as follows:
    Tally: 7 Yeas, 11 Nays
    Yeas (7): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ), 
Sessions (D-AL), Cornyn (R-TX), Graham (R-SC), and Coburn (R-
OK).
    Nays (11): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), 
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT) and Lee 
(R-UT).
    The Committee then voted to report the bill, as amended, 
favorably to the Senate by voice vote. Senator Sessions (R-AL) 
requested that his vote be recorded as no.

              III. Section-by-Section Summary of the Bill

                   TITLE I--VIDEO PRIVACY PROTECTION

Section 101. Short Title

    This section designates the title as the ``Video Privacy 
Protection Act Amendments Act of 2012.''

Section 102--Video Privacy Protection Act Amendment

    Section 102 amends Title 18, United States Codes, Section 
2710(b)(2) to clarify that video tape service providers may 
obtain a customer's informed, written consent to share video 
viewing information on an ongoing basis and that such consent 
may be obtained via the Internet. The provision also makes 
clear that the decision to share video viewing information must 
be at the consumer's election (i.e. ``opt in''). Moreover, the 
provision includes a requirement that video service providers 
provide their customers, in a clear and conspicuous manner, 
with the opportunity to withdraw the consent given to share 
video viewing information at any time.
    In addition, the provision limits the amount of time that a 
consumer's ongoing consent to share video viewing information 
remains valid. Section 102 requires that the length of time 
during which advance consent will remain valid shall not exceed 
two years.

              TITLE II--ELECTRONIC COMMUNICATIONS PRIVACY

Section 201. Short Title

    This section designates the title as the ``Electronic 
Communications Privacy Act Amendments Act of 2012.''

Section 202. Confidentiality of Electronic Communications

    Section 202 amends Title 18, United States Code, Section 
2702 (the Electronic Communications Privacy Act or ``ECPA'') to 
prohibit an electronic communication or remote computing 
service provider from voluntarily disclosing the contents of 
its customer's email or other electronic communications to the 
Government. There are limited exceptions to this prohibition 
under current law, including customer consent, and disclosure 
to law enforcement to address criminal activity.

Section 203. Elimination of 180-Day Rule; Search Warrant Requirement 
        for Content; Required Disclosure of Customer Records

    Section 203 amends the ECPA so that the disclosure of the 
content of email and other electronic communications by an 
electronic communications or remote computing service provider 
to the Government is subject to one clear legal standard--a 
search warrant issued based on a showing of probable cause. The 
provision eliminates the confusing and outdated ``180-day'' 
rule that calls for different legal standards for the 
Government to obtain email content, depending upon the email's 
age and whether the email has been opened. The provision also 
requires that the Government notify the individual whose 
account was disclosed, and provide that individual with a copy 
of the search warrant and other details about the information 
obtained. Such notice must be provided within ten business days 
of a law enforcement agencies receipt of the communications, 
unless the notice is delayed pursuant to Section 204 of the 
bill.
    Section 203 also reaffirms current law to clarify that the 
Government may use an administrative or grand jury subpoena in 
order to obtain certain kinds of electronic communication 
records from a service provider, including customer name, 
address, session time records, length of service information, 
subscriber number and temporarily assigned network address, and 
means and source of payment information.
    At the request of the Department of Justice and the Federal 
Trade Commission, Section 203 also contains a provision that 
adds civil discovery subpoenas to the types of subpoenas that 
may be used under existing law (administrative subpoena 
authorized by Federal or State law, Federal or State grand jury 
subpoena and trial subpoena) to obtain routing and other non-
content information from a third-party provider.

Section 204. Delayed Notice

    Section 204 amends section 2705 of the ECPA to provide that 
the Government may seek a court order to delay notifying an 
individual of the fact that the Government has accessed the 
contents of the individual's electronic communications for up 
to 180 days, if the requesting government entity is a law 
enforcement agency, and for up to 90 days, if the requesting 
government entity is a civil or administrative enforcement 
agency. A court may extend the delay periods for a period of up 
to an additional 180 or 90 days at a time, respectively.
    Section 204 also establishes a 180-day time limit on the 
period that the Government could preclude a service provider 
from informing its customer about the disclosure of electronic 
communications information to the Government. If the government 
entity is a civil or administrative enforcement agency, the 
applicable time period for preclusion of notice is 90 days. 
These time periods may also be extended by a court for up to an 
additional 180 or 90 days at a time, respectively.
    Lastly, Section 205 requires that service providers notify 
the government of their intent to inform a customer or 
subscriber of the fact that the provider has disclosed the 
individual's electronic communications information to the 
Government at least three business days before the provider 
gives such notice to the customer or subscriber. The purpose of 
this provision is to ensure that the government has an 
opportunity to protect the integrity of its investigation and, 
if warranted, to ask a court to delay the notification, before 
such notice is given.

Section 205. Rule of Construction

    Section 205 provides that the search warrant requirement 
for electronic communications content contained in Section 203 
of the bill does not apply to any other Federal criminal or 
national security laws, including Title III of the Omnibus 
Crime Control and Safe Streets Act of 1986 (commonly known as 
the ``Wiretap Act'') and the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1801, et seq. (commonly known as 
``FISA'')).

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, H.R. 
2471, the following estimate and comparison prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act of 1974:

                                                 December 18, 2012.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2471, an act to 
amend section 2710 of title 18, United States Code, to clarify 
that a video tape service provider may obtain a consumer's 
informed, written consent on an ongoing basis and that consent 
may be obtained through the Internet.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz (for federal costs), who can be reached at 226-2860, 
Elizabeth Cove Delisle (for the impact on state, local, and 
tribal governments), who can be reached at 225-3220, and Paige 
Piper/Bach (for the impact on the private sector), who can be 
reached at 226-2940.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 2471--An act to amend section 2710 of title 18, United States 
        Code, to clarify that a video tape service provider may obtain 
        a consumer's informed, written consent on an ongoing basis and 
        that consent may be obtained through the Internet

    Current law permits businesses that rent, sell, or deliver 
audio visual materials to disclose personal information about 
customers to other persons if the customer grants written 
consent. H.R. 2471 would clarify that such consent may be given 
by such customers through the use of the Internet. The act also 
would make several other changes to current law relating to the 
privacy of personal electronic communications. CBO estimates 
that implementing H.R. 2471 would have no significant cost to 
the federal government. Enacting the legislation would not 
affect direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    H.R. 2471 would impose intergovernmental mandates, as 
defined in the Unfunded Mandates Reform Act (UMRA), by changing 
the procedures that government agencies must follow when they 
obtain electronic communications. Because the changes would 
result in minimal additional spending, CBO estimates that the 
costs of the intergovernmental mandates would be small and 
would not exceed the threshold established in UMRA ($74 million 
in 2013, adjusted annually for inflation).
    H.R. 2471 would impose private-sector mandates, as defined 
in UMRA, on providers of video tape services and other 
entities. Title I would require such providers to use 
``distinct and separate'' forms when obtaining consent to 
disclose a consumer's personally identifiable information. At 
the same time, the act would benefit providers and other 
entities by allowing them to obtain consent via the Internet, 
in advance, and only once until consent is withdrawn. Current 
law requires written consent each time disclosure of a 
consumer's personally identifiable information is sought.
    In addition, title II would require providers of video tape 
services and other entities to inform the government of their 
intent to notify a customer or subscriber of the fact that the 
provider has disclosed information about the individual's 
electronic communication activities to the government, no later 
than three business days prior to providing such notice.
    Based on information from industry sources, CBO estimates 
that there would be no significant net costs to comply with the 
mandate; thus, any costs would fall well below the annual 
threshold established in UMRA for private-sector mandates ($146 
million in 2012, adjusted annually for inflation).
    On October 25, 2011, CBO transmitted a cost estimate for 
H.R. 2471 as ordered reported by the House Committee on the 
Judiciary on October 13, 2011. CBO estimates that implementing 
that version of the legislation also would have no significant 
cost to the federal government.
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for federal costs), Elizabeth Cove Delisle (for the impact on 
state, local, and tribal governments), and Paige Piper/Bach 
(for the impact on the private sector). The estimate was 
approved by Theresa Gullo, Deputy Assistant Director for Budget 
Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with Rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of H.R. 2471.

                             VI. Conclusion

    The bill, as amended, H.R. 2471, provides greatly needed 
updates to our Federal digital privacy laws. The bill carefully 
balances the need to protect Americans' privacy rights in 
cyberspace, with the legitimate needs of law enforcement and 
the interests of the American technology sector. Given the many 
advances in technology and new threats to privacy, the passage 
and enactment of these important privacy updates is long 
overdue.

                         VII. Additional Views

                              ----------                              

     ADDITIONAL VIEWS FROM SENATORS GRASSLEY, SESSIONS, AND COBURN

    Although we voted to report the bill, we write to express 
concerns with portions of the Video Privacy Protection Act 
Amendments Act of 2012 (VPPA) that were contained in Chairman 
Leahy's manager's amendment to H.R. 2471 adopted at the 
Committee's Executive Business Meeting. Our concern focuses 
specifically on the amendments that relate to the Electronic 
Communications Privacy Act of 1986 (ECPA). We agree that ECPA 
reform is necessary to update the law to match advances in 
technology. Having said that, we agree with those on both sides 
of the Committee that expressed concerns at the mark-up with 
the current draft that we can craft the bill in a way that 
increases email privacy but also protects law enforcement 
agencies' ability to obtain information in order to investigate 
serious crimes, such as child abduction and domestic violence, 
as well as civil regulatory agencies' ability to investigate 
wrongdoing. This version does not strike the proper balance, 
but it is the start of an important discussion.
    However, we must now state for the record what we believe 
is the right path to take before the full Senate can act on 
this issue. First, we are troubled by the piecemeal approach 
taken by the Chairman. The Committee should take a more 
comprehensive approach to updating the laws involving 
electronic communications and data, and fully address the many 
concerns that have been raised by the law enforcement, 
technology, and privacy communities. Second, the Chairman's 
amendment is flawed because it increases burdens on law 
enforcement officers seeking access to often critical evidence, 
especially in time-sensitive cases. Third, and finally, the 
Chairman's amendment removes a valuable tool from civil 
regulatory agencies, which rely on administrative subpoenas to 
obtain email communications when investigating insider trading, 
accounting fraud, and false or misleading statements made by 
companies about their financial situations. While we support 
the goal of harmonizing and updating ECPA, failure to address 
these important issues and strike the proper balance will 
prevent this legislation from becoming law.
Current Law
    ECPA was enacted in 1986 as a result of advancements in 
wireless communication technology and was designed to provide 
modern rules for government access to electronic communications 
and related data. It was designed to balance the public's 
privacy interests with law enforcement's need to access 
electronic communication information for investigative 
purposes.\1\
---------------------------------------------------------------------------
    \1\S. Rep. No. 99-541, pt. 3, at 5 (1986) (noting that, when ECPA 
was first adopted, the Senate Judiciary Committee believed that it 
``represent[ed] a fair balance between the privacy expectations of 
American citizens and the legitimate needs of law enforcement 
agencies'').
---------------------------------------------------------------------------
    ECPA created a spectrum of legal standards depending on the 
level of privacy interest in the information sought by the 
government. For example, under one part of the law, a 
government entity may require a provider of electronic 
communication services to disclose the contents of a wire or 
electronic communication that is in electronic storage for 180 
days or less pursuant to a criminal search warrant.\2\ For 
communications stored with a third party for more than 180 
days, however, the statute authorizes a lower legal burden.\3\ 
A government entity can require a provider of electronic 
communication services to disclose the contents of the 
communications either by search warrant (without notice to the 
subscriber or customer), or by administrative, grand jury, or 
trial subpoena, or a Section 2703(d) court order if notice is 
first provided to the subscriber or customer.\4\ The basis for 
the ``180 day rule'' is that if the emails are stored by a 
third party service provider, for more than six months, one's 
expectation of privacy in the content of these communications 
diminishes, and these records are considered more akin to third 
party business records than real-time communications. As a 
result, law enforcement investigators have been able to use 
quicker and more efficient methods of legal process (i.e. 
subpoena or 2703(d) order) to obtain these older emails and 
related records.
---------------------------------------------------------------------------
    \2\18 U.S.C. Sec. 2703 (a) (2006).
    \3\18 U.S.C. Sec. 2703 (a) (2006).
    \4\18 U.S.C. Sec. 2703 (b) (2006).
---------------------------------------------------------------------------
    The ability to use a subpoena or a court order has allowed 
law enforcement officials to gather older email content 
information quickly in cases where time is of the essence and 
probable cause may not yet have been developed. Under the 
Chairman's amendment, however, criminal investigators would not 
be able to obtain email information in criminal investigations 
until they have developed probable cause and could obtain a 
search warrant.
    Additionally, these same tools have permitted federal 
regulatory agencies like the Securities and Exchange 
Commission, the Food and Drug Administration, the Consumer 
Product Safety Commission, and the Federal Trade Commission, 
etc., to gather important information by administrative 
subpoenas and carry out their enforcement responsibilities over 
important industries. But the Chairman's amendment eliminates 
these administrative subpoenas and, because civil investigators 
have no criminal search warrant authority, they therefore will 
no longer be able to obtain email information. Civil regulators 
would then have no ability to compel the disclosure of email 
content from third party Internet service providers. As a 
result, the Chairman's amendment calls into question whether 
civil regulatory agencies can even undertake the types of 
investigations Congress has authorized and empowered them to 
undertake.
ECPA Reform Requires a More Comprehensive Review
    As an initial matter, in conducting a review of the laws 
relating to electronic communications and related documents, we 
agree that work needs to be done to ensure that our laws are up 
to date and do not negatively impact business innovation and 
development. We also need to address legitimate privacy 
concerns. It is equally important, however, to hear from the 
law enforcement community to ensure that we do not limit their 
ability to obtain information necessary to catch criminals and 
terrorists who use electronic communications to further their 
crimes. ECPA has specific definitions and has come to be 
interpreted by courts in particular ways; therefore, any 
amendment requires careful consideration to ensure that we do 
not create loopholes that make it harder for law enforcement to 
do their jobs and allow criminals and terrorists to operate 
with impunity.
    This amendment appears to upset the important balance 
between privacy and public safety without consideration of the 
concerns raised by current law enforcement officials. In fact, 
at the last hearing on this matter--held nearly two years ago--
the only law enforcement input came from a representative of 
the Department of Justice who offered no official position 
because none had been cleared by the current Administration.\5\ 
When this bill was first scheduled for mark-up in September 
2012, representatives from the Major Cities Chiefs of Police 
Association, Major Counties Sheriffs' Association, Association 
of State Criminal Investigative Agencies, National Sheriffs' 
Association, National Narcotic Officers' Associations' 
Coalition, and National District Attorneys' Association all co-
signed a letter ``strongly urging the Committee to reconsider 
acting on the ECPA reform proposal until a comprehensive review 
of its impact on law review investigations is conducted.''\6\ 
These law enforcement groups also expressed substantive 
concerns that the Chairman's amendment would increase the 
burden on law enforcement and delay investigations.\7\ 
Additionally, the Federal Bureau of Investigations Agents 
Association wrote that ``many key stakeholders have not had a 
chance to fully vet the amendment,'' and that urged the 
Chairman to work with law enforcement to ``revise provisions 
that potentially undermine our ability to protect this Nation, 
the Constitution, and our citizens.''\8\ We attach these 
letters to these Additional Views as part of the record.
---------------------------------------------------------------------------
    \5\The Electronic Communications Privacy Act: Government 
Perspectives on Protecting Privacy in the Digital Age: Hearing Before 
the S. Comm. on the Judiciary, 112th Cong. 7 (2011) (answer by James 
Baker, Associate Deputy Attorney General, U.S. Dep't of Justice).
    \6\Letter from the MCCPA, MCSA, NSA, ASCIA, NNOAC, and NDAA to U.S. 
Senate Judiciary Committee Chairman Leahy & Ranking Member Grassley, 2 
(September 18, 2012) (attached in appendix).
    \7\Id. at 2-3.
    \8\Letter from FBIAA to U.S. Senate Judiciary Committee Chairman 
Leahy, 1 (September 19, 2012) (attached in appendix).
---------------------------------------------------------------------------
    Our first responders--the brave men and women serving in 
law enforcement who are on the front lines protecting our 
communities--need to have a seat at the table and be able to 
contribute to the ECPA dialogue in a meaningful way. We need to 
understand what the impact to law enforcement investigations 
will be before passage of this bill. Regrettably, the Chairman 
has not made input from state and local law enforcement a 
priority.
The Amendment May Adversely Affect Criminal Investigations
    Law enforcement representatives have raised concerns with 
the Chairman's amendment that it would increase the legal 
standard to require a criminal search warrant for the content 
of all email communications regardless of the length of time 
they have been in electronic storage. They argue that 
increasing the legal burdens will hinder and delay criminal 
investigations.\9\ Criminal search warrants require a showing 
of probable cause to believe that a crime has been committed 
and that evidence of that crime will be located in the place to 
be searched. This can be a challenging standard, especially in 
cases where time is of the essence.
---------------------------------------------------------------------------
    \9\Id. at 2; Letter from the MCCPA, et al, to Chairman Leahy & 
Ranking Member Grassley, supra note 6, at 2-3.
---------------------------------------------------------------------------
    For example, in the early stages of a child abduction case 
where time is of the essence, the facts are usually not fully 
known. Investigators often cannot establish probable cause to 
search a missing child's email account--or a similar account 
such as Facebook or Twitter--because it is not clear that a 
kidnapping has occurred or that evidence of that crime will be 
found in the child's email account. However, under current law, 
investigators have been able to access the contents of a 
child's email account by using grand jury subpoenas or court 
orders, thereby identifying valuable investigative leads and 
even perpetrators who may have been communicating with the 
child.
    Under the Chairman's amendment, however, investigators have 
no way to compel the disclosure of this vital information and 
are left at the mercy of parental consent or voluntary 
disclosure by service providers. While neither of these 
scenarios requires a warrant, they are both highly problematic 
for other reasons. Investigators would encounter issues with 
parental consent when a child's parents are unavailable because 
they are dead or missing, or unwilling to consent when they are 
targets of the investigation.
    Voluntary disclosure by service providers is likewise 
unreliable, because the Chairman's amendment does not provide a 
tool for law enforcement to compel disclosure. In Section 
2702(b) of Title 18, United States Code, service providers are 
permitted to voluntarily disclose email content information to 
law enforcement officials if the provider, in good faith, 
believes that an emergency involving danger of death or serious 
physical injury to any person requires the disclosure without 
delay of the communication. But, even if an emergency arises 
and time is of the essence, the Chairman's amendment does not 
require a service provider to disclose important information to 
law enforcement investigators. Early in an investigation, when 
any information as to the location of the child and identity of 
the kidnappers is absolutely critical, a provider may be 
reluctant to voluntarily disclose information without a warrant 
for a number of reasons. These might include a fear of 
litigation for disclosing a customer's information without a 
warrant, declining to accept law enforcement's assertion that 
there are enough facts to justify an emergency, implementing a 
policy of always requiring a search warrant, and many other 
possible impediments to the rapid recovery of the child.
    This question was raised at the Committee mark-up of the 
Chairman's amendment as to whether the traditional ``exigent 
circumstances'' to the Fourth Amendment would be sufficient to 
permit investigators to seize the electronic communication 
information without a warrant. Despite assurances from 
supporters of the bill that the traditional exigent 
circumstances exception would apply in the event this bill 
becomes law, this is not a settled issue by any means.
    As a threshold matter, courts across the country disagree 
as to whether the contents of email stored in the hands of a 
third party service provider trigger privacy protection under 
the Fourth Amendment. Some courts have held that emails are 
analogous to a mailed letter, and that an individual's 
reasonable expectation of privacy ends upon delivery of the 
letter or the transmission of the email to the recipient.\10\ 
Other courts have reached a different conclusion, holding that 
a subscriber enjoys a reasonable expectation of privacy in the 
content of emails that are stored or sent and received through 
a third-party internet service provider.\11\ Unfortunately, the 
Committee never held a hearing, heard witnesses or reviewed 
evidence, or even had the opportunity to debate this important 
question. Had the Committee fully vetted this bill, perhaps we 
would have greater clarity on this question.
---------------------------------------------------------------------------
    \10\See, e.g., United States v. Lifshitz, 369 F.3d 173, 190 (2d 
Cir. 2004) (holding that, like letter-writers whose expectation of 
privacy ends upon delivery of the letter, individuals may not possess a 
legitimate expectation of privacy ``in transmissions over the Internet 
or e-mail that have already arrived at the recipient''); United States 
v. Dupree, 781 F.Supp.2d 115, 159 (E.D.N.Y.2011) (finding that 
defendants could ``not claim a legitimate expectation of privacy in 
emails that they gave [an employee] permission to access and view''); 
State v. Hinton, 280 P.3d 476, 482 (Wash. App. 2012) (ruling that the 
defendant's expectation of privacy in a text message terminated upon 
the message's delivery to the recipient). Furthermore, the Supreme 
Court has held that the Fourth Amendment did not prevent the government 
from reviewing electronic pager messages of its employees. City of 
Ontario v. Quon, 130 S.Ct. 2619 (2010).
    \11\See, e.g., United States v. Warshak, 631 F.3d 266, 288 (6th 
Cir. 2010) (holding that ``a subscriber enjoys a reasonable expectation 
of privacy in the contents of emails `that are stored with, or sent or 
received through, a commercial [internet service provider]'''); United 
States v. Forrester, 512 F.3d 500, 509-11 (9th Cir. 2008) (finding that 
a customer does not have a legitimate expectation of privacy in the 
email addresses attached to transmitted messages or the internet 
protocol addresses visited on a home computer because that information 
is voluntarily conveyed to the service provider, but distinguishing 
between addresses and the content of messages, noting that ``the 
contents may deserve Fourth Amendment protection, but the address and 
size of the package do not'').
---------------------------------------------------------------------------
    But even assuming arguendo that the Fourth Amendment 
exceptions apply, the exigent circumstances exception would not 
be helpful under the Chairman's amendment because often law 
enforcement officials will be forced to seek the active 
cooperation of service providers. For example, if investigators 
believe it is necessary to search a storage locker and exigent 
circumstances exist, then the exception permits them to simply 
search the locker and seize the contents. In contrast, 
investigators do not possess the capability to seize an email 
account without the assistance of the third party service 
provider, even if exigent circumstances exist. Therefore, 
despite the exigent circumstances exception, investigators are 
still at the mercy of the service providers.
    One problem with the exigent circumstances exception in the 
ECPA context is that it leaves the determination of an 
``emergency'' solely in the hands of a service provider instead 
of the law enforcement professional. Law enforcement 
investigators, who have the training and experience in such 
matters, should be making the determination as to what 
constitutes an emergency situation--not an untrained employee 
of a service provider. An emergency exception that allows law 
enforcement professionals to determine the existence of an 
emergency and requires service providers to disclose the 
requested information is a potential fix that might help 
address some law enforcement concerns and might help 
recalibrate ECPA so that there is better balance between 
privacy and public safety.
    We have a related concern as to whether Congress should be 
looking at setting time limits to ensure timely compliance with 
the search warrants. By raising all content requests to a 
search warrant standard, the Chairman's amendment would 
delegate authority to every state, local, and federal judge to 
manage requests for email content. This is important because, 
traditionally, search warrants do not operate like subpoenas, 
where recipients are typically given up to 14 days to respond. 
Instead, search warrants usually require immediate processing 
and prompt reporting back to the judge. However, law 
enforcement officials have advised us that third-party service 
providers do not always provide prompt compliance. 
Additionally, because the statute is silent on this matter, 
courts often create their own time limits. We should consider 
whether uniform time limits for compliance with the search 
warrant are appropriate and seek to avoid the confusion 
inherent with third-party compliance wrought by the variable 
time limits set by the different federal and state courts 
issuing these warrants.
Civil Investigations Could Be Adversely Affected
    As noted above, under the Chairman's amendment, agencies 
with civil regulatory authority will no longer be able to 
compel access to older email content because the amendment 
removes the administrative subpoena as a tool to obtain email 
communications. The Chairman's amendment permits criminal 
search warrants as the sole legal vehicle to compel disclosure 
of email content. Without criminal search warrant authority, 
these civil federal agencies reported to us that the amendment 
will negatively impact their investigations.
    For example, the Securities and Exchange Commission (SEC) 
relies on email communications to help determine a person's 
intent, agreements and conspiracies to defraud, and patterns of 
illegal conduct when investigating allegations of insider 
trading, accounting fraud, and providing false or misleading 
information about securities and the companies that issue them. 
In providing technical assistance to the Ranking Member in 
evaluating the bill, the SEC advised that this legislation 
would significantly impact the SEC's enforcement of the 
securities laws--including insider trading.
    The SEC recently filed a civil case against two individuals 
that alleges that over a period of years they engaged in a 
scheme to artificially inflate the financial results of a 
publicly owned retailer by engaging in a series of fraudulent 
financial transactions. During the investigation, the SEC 
obtained an email using an ECPA-authorized subpoena showing 
that one of the defendants sent an email describing the 
publicly owned company's commitment to buy certain products and 
services at inflated prices. The email stated ``the fake 
credits that were negotiated with'' the company were being used 
``to hit certain quarterly numbers.'' This evidence was 
particularly important because the defendants were 
sophisticated and had cleverly and carefully concealed their 
scheme. The SEC subpoenaed the Internet Service Provider (ISP) 
because an individual in the case had failed to produce an 
email from one his personal email accounts in response to a 
subpoena issued to him almost a year earlier. SEC investigators 
confronted the defendant with the email obtained from the ISP. 
The defendant then produced his personal email, including this 
inculpatory one. This example demonstrates how important the 
administrative subpoena is in the civil regulatory context; 
indeed, it can be the difference between enforcing the laws and 
watching helplessly as crafty fraudsters escape liability and 
accountability for their crimes.
    The SEC has also advised us that investigative 
administrative subpoenas for email from ISPs are highly 
valuable in other situations, such as: (1) when investigators 
are attempting to locate stolen assets of victimized investors, 
(2) where the target of an investigation lives outside the 
United States, and (3) where the target of an investigation 
claims to have deleted all of their emails, has a damaged hard 
drive, or simply withholds the evidence.
    The administrative subpoena is a vital tool for other 
federal civil enforcement agencies as well. The Food and Drug 
Administration also uses administrative subpoenas to review 
email communications to investigate allegations regarding 
violations of food and drug safety laws. The Consumer Product 
Safety Commission and the Federal Trade Commission use email 
communications to investigate allegations of fraud, deception, 
and unfair business practices in the marketplace. The 
Commodities and Futures Trading Commission (CFTC) relies on 
email communications to investigate fraud, manipulation, and 
abusive trading practices in the marketplace. Through effective 
oversight, the CFTC enables the futures markets to serve the 
important function of providing a means for price discovery and 
offsetting price risk.
    Additionally, the Department of Justice (Department), in 
providing technical advice on the amendment, indicated that the 
Chairman's amendment would negatively impact civil cases 
brought by the Department. Notably, they provided an example 
where the Civil Rights Division uses administrative subpoenas 
to retrieve text and email messages, as well as social media, 
in cases involving sexual or racial harassment of employees, 
tenants, and students. For example, when the Department sues to 
prevent harassment, the conduct often occurs over a long period 
of time and may be targeted at multiple victims. Department 
lawyers are sometimes confronted with loss of evidence because 
victims delete messages that contain disturbing sexual or 
racist content or because a significant period of time has 
passed since they received the messages.
    Evidence is also lost because harassers intentionally 
delete evidence of their conduct. Messages that contain 
harassing or abusive racist and sexual content are highly 
relevant in these cases and are typically discoverable through 
current ECPA procedures. When the Department is unable to 
obtain these messages directly from victims or harassers, they 
need the ability to serve civil discovery subpoenas directly on 
third party providers to obtain evidence of racial and sexual 
harassment. While the Chairman's amendment permits civil 
discovery subpoenas for non-content electronic information, it 
does not include a tool for the Civil Rights Division to compel 
the disclosure of the content of email information from the 
third party service provider. Therefore, under the amendment, 
much of this evidence currently used to enforce safe and 
appropriate work- and study-places would be lost and victims of 
harassment would be left vulnerable to their harassers.
Conclusion
    We agree that ECPA reform is needed to address the dramatic 
advances to technology over the last three decades. We 
disagree, however, with the current hurried process and the 
piecemeal version reported by the Committee. Thus far, the 
process has lacked transparency, ignored the very valid 
concerns of the law enforcement community, and proceeded in a 
fragmented fashion. ECPA reform requires a comprehensive 
approach that strikes the proper balance between privacy and 
public safety. Going forward, we trust that the Committee will 
address the concerns described above and that meaningful ECPA 
reform can be achieved.

                                   Charles E. Grassley.
                                   Jeff Sessions.
                                   Tom Coburn.
      VIII. Changes to Existing Law made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
H.R. 2471, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

   18 U.S.C. 2710--WRONGFUL DISCLOSURE OF VIDEO TAPE RENTAL OR SALE 
                                RECORDS

  (a) Definitions.--For purposes of this section--
          (1) the term ``consumer'' means any renter, 
        purchaser, or subscriber of goods or services from a 
        video tape service provider;
          (2) the term ``ordinary course of business'' means 
        only debt collection activities, order fulfillment, 
        request processing, and the transfer of ownership;
          (3) the term ``personally identifiable information'' 
        includes information which identifies a person as 
        having requested or obtained specific video materials 
        or services from a video tape service provider; and
          (4) the term ``video tape service provider'' means 
        any person, engaged in the business, in or affecting 
        interstate or foreign commerce, of rental, sale, or 
        delivery of prerecorded video cassette tapes or similar 
        audio visual materials, or any person or other entity 
        to whom a disclosure is made under subparagraph (D) or 
        (E) of subsection (b)(2), but only with respect to the 
        information contained in the disclosure.
  (b) Video Tape Rental and Sale Records.--
          (1) A video tape service provider who knowingly 
        discloses, to any person, personally identifiable 
        information concerning any consumer of such provider 
        shall be liable to the aggrieved person for the relief 
        provided in subsection (d).
          (2) A video tape service provider may disclose 
        personally identifiable information concerning any 
        consumer--
                  (A) to the consumer;
                  (B) [to any person with the informed, written 
                consent of the consumer given at the time the 
                disclosure is sought;] to any person with the 
                informed, written consent (including through an 
                electronic means using the Internet) of the 
                consumer that--
                          (i) is in a form distinct and 
                        separate from any form setting forth 
                        other legal or financial obligations of 
                        the consumer;
                          (ii) at the election of the 
                        consumer--
                                  (I) is given at time the 
                                disclosure is sought; or
                                  (II) is given in advance for 
                                a set period of time, not to 
                                exceed 2 years or until consent 
                                is withdrawn by the consumer, 
                                whichever is sooner; and
                          (iii) the video tape service provider 
                        has provided an opportunity, in a clear 
                        and conspicuous manner, for the 
                        consumer to withdraw on a case-by-case 
                        basis or to withdraw for ongoing 
                        disclosures, at the consumer's 
                        election;
                  (C) to a law enforcement agency pursuant to a 
                warrant issued under the Federal Rules of 
                Criminal Procedure, an equivalent State 
                warrant, a grand jury subpoena, or a court 
                order;
                  (D) to any person if the disclosure is solely 
                of the names and addresses of consumers and 
                if--
                          (i) the video tape service provider 
                        has provided the consumer with the 
                        opportunity, in a clear and conspicuous 
                        manner, to prohibit such disclosure; 
                        and
                          (ii) the disclosure does not identify 
                        the title, description, or subject 
                        matter of any video tapes or other 
                        audio visual material; however, the 
                        subject matter of such materials may be 
                        disclosed if the disclosure is for the 
                        exclusive use of marketing goods and 
                        services directly to the consumer;
                  (E) to any person if the disclosure is 
                incident to the ordinary course of business of 
                the video tape service provider; or
                  (F) pursuant to a court order, in a civil 
                proceeding upon a showing of compelling need 
                for the information that cannot be accommodated 
                by any other means, if--
                          (i) the consumer is given reasonable 
                        notice, by the person seeking the 
                        disclosure, of the court proceeding 
                        relevant to the issuance of the court 
                        order; and
                          (ii) the consumer is afforded the 
                        opportunity to appear and contest the 
                        claim of the person seeking the 
                        disclosure.
If an order is granted pursuant to subparagraph (C) or (F), the 
court shall impose appropriate safeguards against unauthorized 
disclosure.
          (3) Court orders authorizing disclosure under 
        subparagraph (C) shall issue only with prior notice to 
        the consumer and only if the law enforcement agency 
        shows that there is probable cause to believe that the 
        records or other information sought are relevant to a 
        legitimate law enforcement inquiry. In the case of a 
        State government authority, such a court order shall 
        not issue if prohibited by the law of such State. A 
        court issuing an order pursuant to this section, on a 
        motion made promptly by the video tape service 
        provider, may quash or modify such order if the 
        information or records requested are unreasonably 
        voluminous in nature or if compliance with such order 
        otherwise would cause an unreasonable burden on such 
        provider.
  (c) Civil Action.--
          (1) Any person aggrieved by any act of a person in 
        violation of this section may bring a civil action in a 
        United States district court.
          (2) The court may award--
                  (A) actual damages but not less than 
                liquidated damages in an amount of $2,500;
                  (B) punitive damages;
                  (C) reasonable attorneys' fees and other 
                litigation costs reasonably incurred; and
                  (D) such other preliminary and equitable 
                relief as the court determines to be 
                appropriate.
          (3) No action may be brought under this subsection 
        unless such action is begun within 2 years from the 
        date of the act complained of or the date of discovery.
          (4) No liability shall result from lawful disclosure 
        permitted by this section.
  (d) Personally Identifiable Information.--Personally 
identifiable information obtained in any manner other than as 
provided in this section shall not be received in evidence in 
any trial, hearing, arbitration, or other proceeding in or 
before any court, grand jury, department, officer, agency, 
regulatory body, legislative committee, or other authority of 
the United States, a State, or a political subdivision of a 
State.
  (e) Destruction of Old Records.--A person subject to this 
section shall destroy personally identifiable information as 
soon as practicable, but no later than one year from the date 
the information is no longer necessary for the purpose for 
which it was collected and there are no pending requests or 
orders for access to such information under subsection (b)(2) 
or (c)(2) or pursuant to a court order.
  (f) Preemption.--The provisions of this section preempt only 
the provisions of State or local law that require disclosure 
prohibited by this section.

  18 U.S.C. 2702--VOLUNTARY DISCLOSURE OF CUSTOMER COMMUNICATIONS OR 
                                RECORDS

  (a) Prohibitions.--Except as provided in subsection (b) or 
(c)--
          (1) a person or entity providing an electronic 
        communication service to the public shall not knowingly 
        divulge to any person or entity the contents of a 
        communication while in electronic storage by that 
        service; and
          (2) a person or entity providing remote computing 
        service to the public shall not knowingly divulge to 
        any person or entity the contents of any communication 
        which is carried or maintained on that service--
                  (A) on behalf of, and received by means of 
                electronic transmission from (or created by 
                means of computer processing of communications 
                received by means of electronic transmission 
                from), a subscriber or customer of such 
                service;
                  (B) solely for the purpose of providing 
                storage or computer processing services to such 
                subscriber or customer, if the provider is not 
                authorized to access the contents of any such 
                communications for purposes of providing any 
                services other than storage or computer 
                processing; and
          (3) [a provider of remote computing service or 
        electronic communication service to the public shall 
        not knowingly divulge a record or other information 
        pertaining to a subscriber to or customer of such 
        service (not including the contents of communications 
        covered by paragraph (1) or (2)) to any governmental 
        entity.] 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.
  (b) Exceptions for Disclosure of Communications.--A provider 
described in subsection (a) may divulge the contents of a 
communication--
          (1) to an addressee or intended recipient of such 
        communication or an agent of such addressee or intended 
        recipient;
          (2) as otherwise authorized in section 2517, 
        2511(2)(a), or 2703 of this title;
          (3) with the lawful consent of the originator or an 
        addressee or intended recipient of such communication, 
        or the subscriber in the case of remote computing 
        service;
          (4) to a person employed or authorized or whose 
        facilities are used to forward such communication to 
        its destination;
          (5) as may be necessarily incident to the rendition 
        of the service or to the protection of the rights or 
        property of the provider of that service;
          (6) to the National Center for Missing and Exploited 
        Children, in connection with a report submitted thereto 
        under section 2258A;
          (7) to a law enforcement agency--
                  (A) if the contents--
                          (i) were inadvertently obtained by 
                        the service provider; and
                          (ii) appear to pertain to the 
                        commission of a crime; or
          (8) to a governmental entity, if the provider, in 
        good faith, believes that an emergency involving danger 
        of death or serious physical injury to any person 
        requires disclosure without delay of communications 
        relating to the emergency.
  (c) Exceptions for Disclosure of Customer Records.--A 
provider described in subsection (a) may divulge a record or 
other information pertaining to a subscriber to or customer of 
such service (not including the contents of communications 
covered by subsection (a)(1) or (a)(2))--
          (1) as otherwise authorized in section 2703;
          (2) with the lawful consent of the customer or 
        subscriber;
          (3) as may be necessarily incident to the rendition 
        of the service or to the protection of the rights or 
        property of the provider of that service;
          (4) to a governmental entity, if the provider, in 
        good faith, believes that an emergency involving danger 
        of death or serious physical injury to any person 
        requires disclosure without delay of information 
        relating to the emergency;
          (5) to the National Center for Missing and Exploited 
        Children, in connection with a report submitted thereto 
        under section 2258A; or
          (6) to any person other than a governmental entity.
  (d) Reporting of Emergency Disclosures.--On an annual basis, 
the Attorney General shall submit to the Committee on the 
Judiciary of the House of Representatives and the Committee on 
the Judiciary of the Senate a report containing--
          (1) the number of accounts from which the Department 
        of Justice has received voluntary disclosures under 
        subsection (b)(8); and
          (2) a summary of the basis for disclosure in those 
        instances where--
                  (A) voluntary disclosures under subsection 
                (b)(8) were made to the Department of Justice; 
                and
                  (B) the investigation pertaining to those 
                disclosures was closed without the filing of 
                criminal charges.

  18 USC Sec. 2703--REQUIRED DISCLOSURE OF CUSTOMER COMMUNICATIONS OR 
                                RECORDS

  [(a) Contents of Wire or Electronic Communications in 
Electronic Storage.--A governmental entity may require the 
disclosure by a provider of electronic communication service of 
the contents of a wire or electronic communication, that is in 
electronic storage in an electronic communications system for 
one hundred and eighty days or less, 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. A governmental entity may require the disclosure 
by a provider of electronic communications services of the 
contents of a wire or electronic communication that has been in 
electronic storage in an electronic communications system for 
more than one hundred and eighty days by the means available 
under subsection (b) of this section.
  [(b) Contents of Wire or Electronic Communications in a 
Remote Computing Service.--
          [(1) A governmental entity may require a provider of 
        remote computing service to disclose the contents of 
        any wire or electronic communication to which this 
        paragraph is made applicable by paragraph (2) of this 
        subsection--
                  [(A) without required notice to the 
                subscriber or customer, if the governmental 
                entity obtains 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; or
                  [(B) with prior notice from the governmental 
                entity to the subscriber or customer if the 
                governmental entity--
                          [(i) uses an administrative subpoena 
                        authorized by a Federal or State 
                        statute or a Federal or State grand 
                        jury or trial subpoena; or
                          [(ii) obtains a court order for such 
                        disclosure under subsection (d) of this 
                        section; except that delayed notice may 
                        be given pursuant to section 2705 of 
                        this title.
          [(2) Paragraph (1) is applicable with respect to any 
        wire or electronic communication that is held or 
        maintained on that service--
                  [(A) on behalf of, and received by means of 
                electronic transmission from (or created by 
                means of computer processing of communications 
                received by means of electronic transmission 
                from), a subscriber or customer of such remote 
                computing service; and
                  [(B) solely for the purpose of providing 
                storage or computer processing services to such 
                subscriber or customer, if the provider is not 
                authorized to access the contents of any such 
                communications for purposes of providing any 
                services other than storage or computer 
                processing.
  [(c) Records Concerning Electronic Communication Service or 
Remote Computing Service.--
          [(1) A governmental entity may require a provider of 
        electronic communication service or remote computing 
        service to disclose a record or other information 
        pertaining to a subscriber to or customer of such 
        service (not including the contents of communications) 
        only when the governmental entity--
                  [(A) obtains 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;
                  [(B) obtains a court order for such 
                disclosure under subsection (d) of this 
                section;
                  [(C) has the consent of the subscriber or 
                customer to such disclosure;
                  [(D) submits a formal written request 
                relevant to a law enforcement investigation 
                concerning telemarketing fraud for the name, 
                address, and place of business of a subscriber 
                or customer of such provider, which subscriber 
                or customer is engaged in telemarketing (as 
                such term is defined in section 2325 of this 
                title); or
                  [(E) seeks information under paragraph (2).
          [(2) A provider of electronic communication service 
        or remote computing service shall disclose to a 
        governmental entity the--
                  [(A) name;
                  [(B) address;
                  [(C) local and long distance telephone 
                connection records, or records of session times 
                and durations;
                  [(D) length of service (including start date) 
                and types of service utilized;
                  [(E) telephone or instrument number or other 
                subscriber number or identity, including any 
                temporarily assigned network address; and
                  [(F) means and source of payment for such 
                service (including any credit card or bank 
                account number), of a subscriber to or customer 
                of such service when the governmental entity 
                uses an administrative subpoena authorized by a 
                Federal or State statute or a Federal or State 
                grand jury or trial subpoena or any means 
                available under paragraph (1).
          [(3) A governmental entity receiving records or 
        information under this subsection is not required to 
        provide notice to a subscriber or customer.]
  (a) Contents of Wire or Electronic Communications.--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 only if the governmental entity 
obtains 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) that is issued by 
a court of competent jurisdiction directing the disclosure.
  (b) Notice.--Except as provided in section 2705, not later 
than 10 business days, in the case of a law enforcement agency, 
or not later than 3 days, in the case of any other governmental 
entity, after a governmental entity receives the contents of a 
wire or electronic communication of a subscriber or customer 
from a provider of electronic communication service or remote 
computing service under subsection (a), the governmental entity 
shall serve upon, or deliver to by registered or first-class 
mail, electronic mail, or other means reasonably calculated to 
be effective, as specified by the court issuing the warrant, 
the subscriber or customer--
          (1) a copy of the warrant; and
          (2) a notice that includes the information referred 
        to in clause (i) and (ii) of section 2705(a)(4)(B).
  (c) Records Concerning Electronic Communication Service or 
Remote Computing Service.--
          (1) In general.--Subject to paragraph (2), a 
        governmental entity may require a provider of 
        electronic communication service or remote computing 
        service to disclose a record or other information 
        pertaining to a subscriber or customer of the provider 
        or service (not including the contents of 
        communications), only if the governmental entity--
                  (A) obtains 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) 
                that is issued by a court of competent 
                jurisdiction directing the disclosure;
                  (B) obtains a court order directing the 
                disclosure under subsection (d);
                  (C) has the consent of the subscriber or 
                customer to the disclosure; or
                  (D) submits a formal written request relevant 
                to a law enforcement investigation concerning 
                telemarketing fraud for the name, address, and 
                place of business of a subscriber or customer 
                of the provider or service that is engaged in 
                telemarketing (as defined in section 2325).
          (2) Information to be disclosed.--A provider of 
        electronic communication service or remote computing 
        service shall, in response to an administrative 
        subpoena authorized by Federal or State statute, a 
        grand jury, trial, or civil discovery subpoena, or any 
        means authorized under paragraph (1), disclose to a 
        governmental entity the--
                  (A) name;
                  (B) address;
                  (C) local and long distance telephone 
                connection records, or records of session times 
                and durations;
                  (D) length of service (including start date) 
                and types of service used;
                  (E) telephone or instrument number or other 
                subscriber number or identity, including any 
                temporarily assigned network address; and
                  (F) means and source of payment for such 
                service (including any credit card or bank 
                account number), of a subscriber or customer of 
                such service.
          (3) Notice not required.--A governmental entity that 
        receives records or information under this subsection 
        is not required to provide notice to a subscriber or 
        customer.
  (d) Requirements for Court Order.--[A court order for 
disclosure under subsection (b) or (c)] A court order for 
disclosure under subsection (c) may be issued by any court that 
is a court of competent jurisdiction and shall issue only if 
the governmental entity offers specific and articulable facts 
showing that there are reasonable grounds to believe that [the 
contents of a wire or electronic communication, or]the records 
or other information sought, are relevant and material to an 
ongoing criminal investigation. In the case of a State 
governmental authority, such a court order shall not issue if 
prohibited by the law of such State. A court issuing an order 
pursuant to this section, on a motion made promptly by the 
service provider, may quash or modify such order, if the 
information or records requested are unusually voluminous in 
nature or compliance with such order otherwise would cause an 
undue burden on such provider.
  (e) No Cause of Action Against a Provider Disclosing 
Information Under This Chapter.--No cause of action shall lie 
in any court against any provider of wire or electronic 
communication service, its officers, employees, agents, or 
other specified persons for providing information, facilities, 
or assistance in accordance with the terms of a court order, 
warrant, subpoena, statutory authorization, or certification 
under this chapter.
  (f) Requirement To Preserve Evidence.--
          (1) In general.--A provider of wire or electronic 
        communication services or a remote computing service, 
        upon the request of a governmental entity, shall take 
        all necessary steps to preserve records and other 
        evidence in its possession pending the issuance of a 
        court order or other process.
          (2) Period of retention.--Records referred to in 
        paragraph (1) shall be retained for a period of 90 
        days, which shall be extended for an additional 90-day 
        period upon a renewed request by the governmental 
        entity.
  (g) Presence of Officer Not Required.--Notwithstanding 
section 3105 of this title, the presence of an officer shall 
not be required for service or execution of a search warrant 
issued in accordance with this chapter requiring disclosure by 
a provider of electronic communications service or remote 
computing service of the contents of communications or records 
or other information pertaining to a subscriber to or customer 
of such service.

                    18 USC Sec. 2705--DELAYED NOTICE

  [(a) Delay of Notification.--
          [(1) A governmental entity acting under section 
        2703(b) of this title may--
                  [(A) where a court order is sought, include 
                in the application a request, which the court 
                shall grant, for an order delaying the 
                notification required under section 2703(b) of 
                this title for a period not to exceed ninety 
                days, if the court determines that there is 
                reason to believe that notification of the 
                existence of the court order may have an 
                adverse result described in paragraph (2) of 
                this subsection; or
                  [(B) where an administrative subpoena 
                authorized by a Federal or State statute or a 
                Federal or State grand jury subpoena is 
                obtained, delay the notification required under 
                section 2703(b) of this title for a period not 
                to exceed ninety days upon the execution of a 
                written certification of a supervisory official 
                that there is reason to believe that 
                notification of the existence of the subpoena 
                may have an adverse result described in 
                paragraph (2) of this subsection.
          [(2) An adverse result for the purposes of paragraph 
        (1) of this subsection is--
                  [(A) endangering the life or physical safety 
                of an individual;
                  [(B) flight from prosecution;
                  [(C) destruction of or tampering with 
                evidence;
                  [(D) intimidation of potential witnesses; or
                  [(E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
          [(3) The governmental entity shall maintain a true 
        copy of certification under paragraph (1)(B).
          [(4) Extensions of the delay of notification provided 
        in section 2703 of up to ninety days each may be 
        granted by the court upon application, or by 
        certification by a governmental entity, but only in 
        accordance with subsection (b) of this section.
          [(5) Upon expiration of the period of delay of 
        notification under paragraph (1) or (4) of this 
        subsection, the governmental entity shall serve upon, 
        or deliver by registered or first-class mail to, the 
        customer or subscriber a copy of the process or request 
        together with notice that--
                  [(A) states with reasonable specificity the 
                nature of the law enforcement inquiry; and
                  [(B) informs such customer or subscriber--
                          [(i) that information maintained for 
                        such customer or subscriber by the 
                        service provider named in such process 
                        or request was supplied to or requested 
                        by that governmental authority and the 
                        date on which the supplying or request 
                        took place;
                          [(ii) that notification of such 
                        customer or subscriber was delayed;
                          [(iii) what governmental entity or 
                        court made the certification or 
                        determination pursuant to which that 
                        delay was made; and
                          [(iv) which provision of this chapter 
                        allowed such delay.
          [(6) As used in this subsection, the term 
        ``supervisory official'' means the investigative agent 
        in charge or assistant investigative agent in charge or 
        an equivalent of an investigating agency's headquarters 
        or regional office, or the chief prosecuting attorney 
        or the first assistant prosecuting attorney or an 
        equivalent of a prosecuting attorney's headquarters or 
        regional office.
  [(b) Preclusion of Notice to Subject of Governmental 
Access.--A governmental entity acting under section 2703, when 
it is not required to notify the subscriber or customer under 
section 2703(b)(1), or to the extent that it may delay such 
notice pursuant to subsection (a) of this section, may apply to 
a court for an order commanding a provider of electronic 
communications service or remote computing service to whom a 
warrant, subpoena, or court order is directed, for such period 
as the court deems appropriate, not to notify any other person 
of the existence of the warrant, subpoena, or court order. The 
court shall enter such an order if it determines that there is 
reason to believe that notification of the existence of the 
warrant, subpoena, or court order will result in--
          [(1) endangering the life or physical safety of an 
        individual;
          [(2) flight from prosecution;
          [(3) destruction of or tampering with evidence;
          (4) intimidation of potential witnesses; or
          [(5) otherwise seriously jeopardizing an 
        investigation or unduly delaying a trial.]
  (a) Delay of Notification.--
          (1) In general.--A governmental entity that is 
        seeking a warrant under section 2703(a) may include in 
        the application for the warrant a request for an order 
        delaying the notification required under section 
        2703(a) for a period of not more than 180 days, in the 
        case of a law enforcement agency, or not more than 90 
        days, in the case of any other governmental entity.
          (2) Determination.--A court shall grant a request for 
        delayed notification made under paragraph (1) if the 
        court determines that there is reason to believe that 
        notification of the existence of the warrant may result 
        in--
                  (A) endangering the life or physical safety 
                of an individual;
                  (B) flight from prosecution;
                  (C) destruction of or tampering with 
                evidence;
                  (D) intimidation of potential witnesses; or
                  (E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
          (3) Extension.--Upon request by a governmental 
        entity, a court may grant 1 or more extensions of the 
        delay of notification granted under paragraph (2) of 
        not more than 180 days, in the case of a law 
        enforcement agency, or not more than 90 days, in the 
        case of any other governmental entity.
          (4) Expiration of the delay of notification.--Upon 
        expiration of the period of delay of notification under 
        paragraph (2) or (3), the governmental entity shall 
        serve upon, or deliver to by registered or first-class 
        mail, electronic mail or other means reasonably 
        calculated to be effective as specified by the court 
        approving the search warrant, the customer or 
        subscriber--
                  (A) a copy of the warrant; and
                  (B) notice that informs the customer or 
                subscriber--
                          (i) of the nature of the law 
                        enforcement inquiry with reasonable 
                        specificity;
                          (ii) that information maintained for 
                        the customer or subscriber by the 
                        provider of electronic communication 
                        service or remote computing service 
                        named in the process or request was 
                        supplied to, or requested by, the 
                        governmental entity;
                          (iii) of the date on which the 
                        warrant was served on the provider and 
                        the date on which the information was 
                        provided by the provider to the 
                        governmental entity;
                          (iv) that notification of the 
                        customer or subscriber was delayed;
                          (v) the identity of the court 
                        authorizing the delay; and
                          (vi) of the provision of this chapter 
                        under which the delay was authorized.
  (b) Preclusion of Notice to Subject of Governmental Access.-- 

          (1) In general.--A governmental entity that is 
        obtaining the contents of a communication or 
        information or records under section 2703 may apply to 
        a court for an order directing a provider of electronic 
        communication service or remote computing service to 
        which a warrant, order, subpoena, or other directive 
        under section 2703 is directed not to notify any other 
        person of the existence of the warrant, order, 
        subpoena, or other directive for a period of not more 
        than 180 days, in the case of a law enforcement agency, 
        or not more than 90 days, in the case of any other 
        governmental entity.
          (2) Determination.--A court shall grant a request for 
        an order made under paragraph (1) if the court 
        determines that there is reason to believe that 
        notification of the existence of the warrant, order, 
        subpoena, or other directive may result in--
                  (A) endangering the life or physical safety 
                of an individual;
                  (B) flight from prosecution;
                  (C) destruction of or tampering with 
                evidence;
                  (D) intimidation of potential witnesses; or 
                (E) otherwise seriously jeopardizing an 
                investigation or unduly delaying a trial.
          (3) Extension.--Upon request by a governmental 
        entity, a court may grant 1 or more extensions of an 
        order granted under paragraph (2) of not more than 180 
        days, in the case of a law enforcement agency, or not 
        more than 90 days, in the case of any other 
        governmental entity.
          (4) Prior notice to law enforcement.--Upon expiration 
        of the period of delay of notice under this section, 
        and not later than 3 business days before providing 
        notice to a customer or subscriber, a provider of 
        electronic communications service or remote computing 
        service shall notify the governmental entity that 
        obtained the contents of a communication or information 
        or records under section 2703 of the intent of the 
        provider of electronic communications service or remote 
        computing service to notify the customer or subscriber 
        of the existence of the warrant, order, or subpoena 
        seeking that information.
  (c) Definition.--In this section and section 2703, the term 
'law enforcement agency' means an agency of the United States, 
a State, or a political subdivision of a State, authorized by 
law or by a government agency to engage in or supervise the 
prevention, detection, investigation, or prosecution of any 
violation of criminal law, or any other Federal or State agency 
conducting a criminal investigation.

                                  
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