II 

113TH CONGRESS 

1ST SESSION S. 607 

To improve the provisions relating to the privacy of electronic communications. 

IN THE SENATE OF THE UNITED STATES 

MARCH 19, 2013 

Mr. LEAHY (for himself and Mr. LEE) introduced the following bill; which was 

read twice and referred to the Committee on the Judiciary 

A BILL 

To improve the provisions relating to the privacy of electronic 

communications. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Electronic Communica5 tions Privacy Act Amendments Act of 2013’’. 

6 SEC. 2. CONFIDENTIALITY OF ELECTRONIC COMMUNICA7 TIONS. 

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

9 is amended to read as follows: 

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

11 electronic communication service to the public shall 


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1 not knowingly divulge to any governmental entity 

2 the contents of any communication described in sec3 tion 2703(a), or any record or other information 

4 pertaining to a subscriber or customer of such serv5 ice.’’. 

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

7 REQUIREMENT; REQUIRED DISCLOSURE OF 

8 CUSTOMER RECORDS. 

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

10 States Code, is amended— 

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

12 inserting the following: 

13 ‘‘(a) CONTENTS OF WIRE OR ELECTRONIC COMMU14 NICATIONS.—A governmental entity may require the dis15 closure by a provider of electronic communication service 

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

17 electronic communication that is in electronic storage with 

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

19 only if the governmental entity obtains a warrant issued 

20 using the procedures described in the Federal Rules of 

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

22 issued using State warrant procedures) that is issued by 

23 a court of competent jurisdiction directing the disclosure. 

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

25 not later than 10 business days in the case of a law enVerDate Mar 15 2010 01:28 Mar 23, 2013 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S607.IS S607

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1 forcement agency, or not later than 3 business days in 

2 the case of any other governmental entity, after a govern3 mental entity receives the contents of a wire or electronic 

4 communication of a subscriber or customer from a pro5 vider of electronic communication service or remote com6 puting service under subsection (a), the governmental en7 tity shall serve upon, or deliver to by registered or first8 class mail, electronic mail, or other means reasonably cal9 culated to be effective, as specified by the court issuing 

10 the warrant, the subscriber or customer— 

11 ‘‘(1) a copy of the warrant; and 

12 ‘‘(2) a notice that includes the information re13 ferred to in clauses (i) and (ii) of section 

14 2705(a)(4)(B). 

15 ‘‘(c) RECORDS CONCERNING ELECTRONIC COMMU16 NICATION SERVICE OR REMOTE COMPUTING SERVICE.— 

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

18 governmental entity may require a provider of elec19 tronic communication service or remote computing 

20 service to disclose a record or other information per21 taining to a subscriber or customer of the provider 

22 or service (not including the contents of communica23 tions), only if the governmental entity— 

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

25 procedures described in the Federal Rules of 


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

2 court, issued using State warrant procedures) 

3 that is issued by a court of competent jurisdic4 tion directing the disclosure; 

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

6 disclosure under subsection (d); 

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

8 customer to the disclosure; or 

9 ‘‘(D) submits a formal written request rel10 evant to a law enforcement investigation con11 cerning telemarketing fraud for the name, ad12 dress, and place of business of a subscriber or 

13 customer of the provider or service that is en14 gaged in telemarketing (as defined in section 

15 2325). 

16 ‘‘(2) INFORMATION TO BE DISCLOSED.—A pro17 vider of electronic communication service or remote 

18 computing service shall, in response to an adminis19 trative subpoena authorized by Federal or State 

20 statute, a grand jury, trial, or civil discovery sub21 poena, or any means authorized under paragraph 

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

23 ‘‘(A) name; 

24 ‘‘(B) address; 


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1 ‘‘(C) local and long distance telephone con2 nection records, or records of session times and 

3 durations; 

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

5 date) and types of service used; 

6 ‘‘(E) telephone or instrument number or 

7 other subscriber number or identity, including 

8 any temporarily assigned network address; and 

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

10 such service (including any credit card or bank 

11 account number), of a subscriber or customer of 

12 such service. 

13 ‘‘(3) NOTICE NOT REQUIRED.—A governmental 

14 entity that receives records or information under 

15 this subsection is not required to provide notice to 

16 a subscriber or customer.’’; and 

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

18 ‘‘(h) RULE OF CONSTRUCTION.—Nothing in this sec19 tion or in section 2702 shall be construed to limit the au20 thority of a governmental entity to use an administrative 

21 subpoena authorized under a Federal or State statute or 

22 to use a Federal or State grand jury, trial, or civil dis23 covery subpoena to— 

24 ‘‘(1) require an originator, addressee, or in25 tended recipient of an electronic communication to 


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1 disclose the contents of the electronic communication 

2 to the governmental entity; or 

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

4 communication services to the officers, directors, em5 ployees, or agents of the entity (for the purpose of 

6 carrying out their duties) to disclose the contents of 

7 an electronic communication to or from an officer, 

8 director, employee, or agent of the entity to a gov9 ernmental entity, if the electronic communication is 

10 held, stored, or maintained on an electronic commu11 nications system owned or operated by the entity.’’. 

12 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

13 Section 2703(d) of title 18, United States Code, is amend14 ed— 

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

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

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

18 (2) by striking ‘‘the contents of a wire or elec19 tronic communication, or’’. 

20 SEC. 4. DELAYED NOTICE. 

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

22 amended to read as follows: 

23 ‘‘SEC. 2705. DELAYED NOTICE. 

24 ‘‘(a) DELAY OF NOTIFICATION.— 


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

2 is seeking a warrant under section 2703(a) may in3 clude in the application for the warrant a request for 

4 an order delaying the notification required under 

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

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

7 more than 90 days in the case of any other govern8 mental entity. 

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

10 request for delayed notification made under para11 graph (1) if the court determines that there is rea12 son to believe that notification of the existence of the 

13 warrant may result in— 

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

15 of an individual; 

16 ‘‘(B) flight from prosecution; 

17 ‘‘(C) destruction of or tampering with evi18 dence; 

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

20 ‘‘(E) otherwise seriously jeopardizing an 

21 investigation or unduly delaying a trial. 

22 ‘‘(3) EXTENSION.—Upon request by a govern23 mental entity, a court may grant one or more exten24 sions of the delay of notification granted under para25 graph (2) of not more than 180 days in the case of 


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

2 in the case of any other governmental entity. 

3 ‘‘(4) EXPIRATION OF THE DELAY OF NOTIFICA4 TION.—Upon expiration of the period of delay of no5 tification under paragraph (2) or (3), the govern6 mental entity shall serve upon, or deliver to by reg7 istered or first-class mail, electronic mail, or other 

8 means reasonably calculated to be effective as speci9 fied by the court approving the search warrant, the 

10 customer or subscriber— 

11 ‘‘(A) a copy of the warrant; and 

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

13 subscriber— 

14 ‘‘(i) of the nature of the law enforce15 ment inquiry with reasonable specificity; 

16 ‘‘(ii) that information maintained for 

17 the customer or subscriber by the provider 

18 of electronic communication service or re19 mote computing service named in the proc20 ess or request was supplied to, or re21 quested by, the governmental entity; 

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

23 was served on the provider and the date on 

24 which the information was provided by the 

25 provider to the governmental entity; 


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1 ‘‘(iv) that notification of the customer 

2 or subscriber was delayed; 

3 ‘‘(v) the identity of the court author4 izing the delay; and 

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

6 under which the delay was authorized. 

7 ‘‘(b) PRECLUSION OF NOTICE TO SUBJECT OF GOV8 ERNMENTAL ACCESS.— 

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

10 is obtaining the contents of a communication or in11 formation or records under section 2703 may apply 

12 to a court for an order directing a provider of elec13 tronic communication service or remote computing 

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

15 directive under section 2703 is directed not to notify 

16 any other person of the existence of the warrant, 

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

18 not more than 180 days in the case of a law enforce19 ment agency, or not more than 90 days in the case 

20 of any other governmental entity. 

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

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

23 the court determines that there is reason to believe 

24 that notification of the existence of the warrant, 

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


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

2 of an individual; 

3 ‘‘(B) flight from prosecution; 

4 ‘‘(C) destruction of or tampering with evi5 dence; 

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

7 ‘‘(E) otherwise seriously jeopardizing an 

8 investigation or unduly delaying a trial. 

9 ‘‘(3) EXTENSION.—Upon request by a govern10 mental entity, a court may grant one or more exten11 sions of an order granted under paragraph (2) of 

12 not more than 180 days in the case of a law enforce13 ment agency, or not more than 90 days in the case 

14 of any other governmental entity. 

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

16 Upon expiration of the period of delay of notice 

17 under this section, and not later than 3 business 

18 days before providing notice to a customer or sub19 scriber, a provider of electronic communication serv20 ice or remote computing service shall notify the gov21 ernmental entity that obtained the contents of a 

22 communication or information or records under sec23 tion 2703 of the intent of the provider of electronic 

24 communication service or remote computing service 

25 to notify the customer or subscriber of the existence 


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1 of the warrant, order, or subpoena seeking that in2 formation. 

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

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

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

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

7 engage in or supervise the prevention, detection, investiga8 tion, or prosecution of any violation of criminal law, or 

9 any other Federal or State agency conducting a criminal 

10 investigation.’’. 

11 SEC. 5. RULE OF CONSTRUCTION. 

12 Nothing in this Act or an amendment made by this 

13 Act shall be construed to apply the warrant requirement 

14 for contents of a wire or electronic communication author15 ized under this Act or an amendment made by this Act 

16 to any other section of title 18, United States Code (in17 cluding chapter 119 of such title (commonly known as the 

18 ‘‘Wiretap Act’’)), the Foreign Intelligence Surveillance Act 

19 of 1978 (50 U.S.C. 1801 et seq.), or any other provision 

20 of Federal law. 

Æ 


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