II 

115TH CONGRESS 

1ST SESSION S. 1654 

To amend title 18, United States Code, to update the privacy protections 

for electronic communications information that is stored by third-party 

service providers in order to protect consumer privacy interests while 

meeting law enforcement needs, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 27, 2017 

Mr. LEE (for himself, Mr. LEAHY, Mr. HELLER, Mrs. SHAHEEN, Mr. DAINES, 

Mr. BLUMENTHAL, Mr. GARDNER, and Mr. FRANKEN) introduced the 

following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL 

To amend title 18, United States Code, to update the privacy 

protections for electronic communications information 

that is stored by third-party service providers in order 

to protect consumer privacy interests while meeting law 

enforcement needs, and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Email Privacy Act’’. 


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1 SEC. 2. VOLUNTARY DISCLOSURE CORRECTIONS. 

2 (a) IN GENERAL.—Section 2702 of title 18, United 

3 States Code, is amended— 

4 (1) in subsection (a)— 

5 (A) in paragraph (1)— 

6 (i) by striking ‘‘divulge’’ and inserting 

7 ‘‘disclose’’; and 

8 (ii) by striking ‘‘while in electronic 

9 storage by that service’’ and inserting 

10 ‘‘that is in electronic storage with or other11 wise stored, held, or maintained by that 

12 service’’; 

13 (B) in paragraph (2)— 

14 (i) by striking ‘‘to the public’’; 

15 (ii) by striking ‘‘divulge’’ and insert16 ing ‘‘disclose’’; and 

17 (iii) by striking ‘‘which is carried or 

18 maintained on that service’’ and inserting 

19 ‘‘that is stored, held, or maintained by that 

20 service’’; and 

21 (C) in paragraph (3)— 

22 (i) by striking ‘‘divulge’’ and inserting 

23 ‘‘disclose’’; and 

24 (ii) by striking ‘‘a provider of’’ and in25 serting ‘‘a person or entity providing’’; 

26 (2) in subsection (b)— 


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1 (A) in the matter preceding paragraph (1), 

2 by inserting ‘‘wire or electronic’’ before ‘‘com3 munication’’; 

4 (B) by amending paragraph (1) to read as 

5 follows: 

6 ‘‘(1) to an originator, addressee, or intended re7 cipient of such communication, to the subscriber or 

8 customer on whose behalf the provider stores, holds, 

9 or maintains such communication, or to an agent of 

10 such addressee, intended recipient, subscriber, or 

11 customer;’’; and 

12 (C) by amending paragraph (3) to read as 

13 follows: 

14 ‘‘(3) with the lawful consent of the originator, 

15 addressee, or intended recipient of such communica16 tion, or of the subscriber or customer on whose be17 half the provider stores, holds, or maintains such 

18 communication;’’; 

19 (3) in subsection (c) by inserting ‘‘wire or elec20 tronic’’ before ‘‘communications’’; 

21 (4) in each of subsections (b) and (c), by strik22 ing ‘‘divulge’’ and inserting ‘‘disclose’’; and 

23 (5) in subsection (c), by amending paragraph 

24 (2) to read as follows: 


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1 ‘‘(2) with the lawful consent of the subscriber 

2 or customer;’’. 

3 SEC. 3. AMENDMENTS TO REQUIRED DISCLOSURE SEC4 TION. 

5 Section 2703 of title 18, United States Code, is 

6 amended— 

7 (1) by striking subsections (a) through (c) and 

8 inserting the following: 

9 ‘‘(a) CONTENTS OF WIRE OR ELECTRONIC COMMU10 NICATIONS IN ELECTRONIC STORAGE.—Except as pro11 vided in subsections (i) and (j), a governmental entity may 

12 require the disclosure by a provider of electronic commu13 nication service of the contents of a wire or electronic com14 munication that is in electronic storage with or otherwise 

15 stored, held, or maintained by that service only if the gov16 ernmental entity obtains a warrant issued using the proce17 dures described in the Federal Rules of Criminal Proce18 dure (or, in the case of a State court, issued using State 

19 warrant procedures) that— 

20 ‘‘(1) is issued by a court of competent jurisdic21 tion; and 

22 ‘‘(2) may indicate the date by which the pro23 vider must make the disclosure to the governmental 

24 entity. 


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1 In the absence of a date on the warrant indicating the 

2 date by which the provider must make disclosure to the 

3 governmental entity, the provider shall promptly respond 

4 to the warrant. 

5 ‘‘(b) CONTENTS OF WIRE OR ELECTRONIC COMMU6 NICATIONS IN A REMOTE COMPUTING SERVICE.— 

7 ‘‘(1) IN GENERAL.—Except as provided in sub8 sections (i) and (j), a governmental entity may re9 quire the disclosure by a provider of remote com10 puting service of the contents of a wire or electronic 

11 communication that is stored, held, or maintained by 

12 that service only if the governmental entity obtains 

13 a warrant issued using the procedures described in 

14 the Federal Rules of Criminal Procedure (or, in the 

15 case of a State court, issued using State warrant 

16 procedures) that— 

17 ‘‘(A) is issued by a court of competent ju18 risdiction; and 

19 ‘‘(B) may indicate the date by which the 

20 provider must make the disclosure to the gov21 ernmental entity. 

22 In the absence of a date on the warrant indicating 

23 the date by which the provider must make disclosure 

24 to the governmental entity, the provider shall 

25 promptly respond to the warrant. 


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1 ‘‘(2) APPLICABILITY.—Paragraph (1) is appli2 cable with respect to any wire or electronic commu3 nication that is stored, held, or maintained by the 

4 provider— 

5 ‘‘(A) on behalf of, and received by means 

6 of electronic transmission from (or created by 

7 means of computer processing of communica8 tion received by means of electronic trans9 mission from), a subscriber or customer of such 

10 remote computing service; and 

11 ‘‘(B) solely for the purpose of providing 

12 storage or computer processing services to such 

13 subscriber or customer, if the provider is not 

14 authorized to access the contents of any such 

15 communications for purposes of providing any 

16 services other than storage or computer proc17 essing. 

18 ‘‘(c) RECORDS CONCERNING ELECTRONIC COMMU19 NICATION SERVICE OR REMOTE COMPUTING SERVICE.— 

20 ‘‘(1) IN GENERAL.—Except as provided in sub21 sections (i) and (j), a governmental entity may re22 quire the disclosure by a provider of electronic com23 munication service or remote computing service of a 

24 record or other information pertaining to a sub25 scriber to or customer of such service (not including 


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1 the contents of wire or electronic communications), 

2 only— 

3 ‘‘(A) if a governmental entity obtains a 

4 warrant issued using the procedures described 

5 in the Federal Rules of Criminal Procedure (or, 

6 in the case of a State court, issued using State 

7 warrant procedures) that— 

8 ‘‘(i) is issued by a court of competent 

9 jurisdiction directing the disclosure; and 

10 ‘‘(ii) may indicate the date by which 

11 the provider must make the disclosure to 

12 the governmental entity; 

13 ‘‘(B) if a governmental entity obtains a 

14 court order directing the disclosure under sub15 section (d); 

16 ‘‘(C) with the lawful consent of the sub17 scriber or customer; or 

18 ‘‘(D) as otherwise authorized in paragraph 

19 (2). 

20 ‘‘(2) SUBSCRIBER OR CUSTOMER INFORMA21 TION.—A provider of electronic communication serv22 ice or remote computing service shall, in response to 

23 an administrative subpoena authorized by Federal or 

24 State statute, a grand jury, trial, or civil discovery 


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1 subpoena, or any means available under paragraph 

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

3 ‘‘(A) name; 

4 ‘‘(B) address; 

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

7 durations; 

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

9 date) and types of service used; 

10 ‘‘(E) telephone or instrument number or 

11 other subscriber or customer number or iden12 tity, including any temporarily assigned net13 work address; and 

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

15 such service (including any credit card or bank 

16 account number), 

17 of a subscriber or customer of such service. 

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

19 entity that receives records or information under 

20 this subsection is not required to provide notice to 

21 a subscriber or customer.’’; 

22 (2) in subsection (d)— 

23 (A) by striking ‘‘(b) or’’; 

24 (B) by striking ‘‘the contents of a wire or 

25 electronic communication, or’’; 


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1 (C) by striking ‘‘sought,’’ and inserting 

2 ‘‘sought’’; and 

3 (D) by striking ‘‘section’’ and inserting 

4 ‘‘subsection’’; and 

5 (3) by adding at the end the following: 

6 ‘‘(h) NOTICE.—Except as provided in section 2705, 

7 a provider of electronic communication service or remote 

8 computing service may notify a subscriber or customer of 

9 a receipt of a warrant, court order, subpoena, or request 

10 under subsection (a), (b), (c), or (d) of this section. 

11 ‘‘(i) RULE OF CONSTRUCTION RELATED TO LEGAL

12 PROCESS.—Nothing in this section or in section 2702 

13 shall limit the authority of a governmental entity to use 

14 an administrative subpoena authorized by Federal or 

15 State statute, a grand jury, trial, or civil discovery sub16 poena, or a warrant issued using the procedures described 

17 in the Federal Rules of Criminal Procedure (or, in the 

18 case of a State court, issued using State warrant proce19 dures) by a court of competent jurisdiction to— 

20 ‘‘(1) require an originator, addressee, or in21 tended recipient of a wire or electronic communica22 tion to disclose a wire or electronic communication 

23 (including the contents of that communication) to 

24 the governmental entity; 


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1 ‘‘(2) require a person or entity that provides an 

2 electronic communication service to the officers, di3 rectors, employees, or agents of the person or entity 

4 (for the purpose of carrying out their duties) to dis5 close a wire or electronic communication (including 

6 the contents of that communication) to or from the 

7 person or entity itself or to or from an officer, direc8 tor, employee, or agent of the entity to a govern9 mental entity, if the wire or electronic communica10 tion is stored, held, or maintained on an electronic 

11 communications system owned, operated, or con12 trolled by the person or entity; or 

13 ‘‘(3) require a person or entity that provides a 

14 remote computing service or electronic communica15 tion service to disclose a wire or electronic commu16 nication (including the contents of that communica17 tion) that advertises or promotes a product or serv18 ice and that has been made readily accessible to the 

19 general public. 

20 ‘‘(j) RULE OF CONSTRUCTION RELATED TO CON21 GRESSIONAL SUBPOENAS.—Nothing in this section or in 

22 section 2702 shall limit the power of inquiry vested in the 

23 Congress by article I of the Constitution of the United 

24 States, including the authority to compel the production 

25 of a wire or electronic communication (including the conVerDate Sep 11 2014 03:50 Aug 08, 2017 Jkt 069200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1654.IS S1654

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1 tents of a wire or electronic communication) that is stored, 

2 held, or maintained by a person or entity that provides 

3 remote computing service or electronic communication 

4 service.’’. 

5 SEC. 4. DELAYED NOTICE. 

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

7 amended to read as follows: 

8 ‘‘§ 2705. Delayed notice 

9 ‘‘(a) IN GENERAL.—A governmental entity acting 

10 under section 2703 may apply to a court for an order di11 recting a provider of electronic communication service or 

12 remote computing service to which a warrant, order, sub13 poena, or other directive under section 2703 is directed 

14 not to notify any other person of the existence of the war15 rant, order, subpoena, or other directive. 

16 ‘‘(b) DETERMINATION.—A court shall grant a re17 quest for an order made under subsection (a) for delayed 

18 notification of up to 180 days if the court determines that 

19 there is reason to believe that notification of the existence 

20 of the warrant, order, subpoena, or other directive will 

21 likely result in— 

22 ‘‘(1) endangering the life or physical safety of 

23 an individual; 

24 ‘‘(2) flight from prosecution; 

25 ‘‘(3) destruction of or tampering with evidence; 


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1 ‘‘(4) intimidation of potential witnesses; or 

2 ‘‘(5) otherwise seriously jeopardizing an inves3 tigation or unduly delaying a trial. 

4 ‘‘(c) EXTENSION.—Upon request by a governmental 

5 entity, a court may grant one or more extensions, for peri6 ods of up to 180 days each, of an order granted in accord7 ance with subsection (b).’’. 

8 SEC. 5. RULE OF CONSTRUCTION. 

9 Nothing in this Act or an amendment made by this 

10 Act shall be construed to preclude the acquisition by the 

11 United States Government of— 

12 (1) the contents of a wire or electronic commu13 nication pursuant to other lawful authorities, includ14 ing the authorities under chapter 119 of title 18 

15 (commonly known as the ‘‘Wiretap Act’’), the For16 eign Intelligence Surveillance Act of 1978 (50 

17 U.S.C. 1801 et seq.), or any other provision of Fed18 eral law not specifically amended by this Act; or 

19 (2) records or other information relating to a 

20 subscriber or customer of any electronic communica21 tion service or remote computing service (not includ22 ing the content of such communications) pursuant to 

23 the Foreign Intelligence Surveillance Act of 1978 

24 (50 U.S.C. 1801 et seq.), chapter 119 of title 18 

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


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1 other provision of Federal law not specifically 

2 amended by this Act. 

Æ 


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