II 

115TH CONGRESS 

1ST SESSION S. 1709 

To amend title 18, United States Code, to provide a certification process 

for the issuance of nondisclosure requirements accompanying certain 

administrative subpoenas, to provide for judicial review of such nondisclosure requirements, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 2, 2017 

Mr. KENNEDY (for himself, Mr. HATCH, and Mr. CORNYN) 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 provide a certification process for the issuance of nondisclosure requirements accompanying certain administrative subpoenas, 

to provide for judicial review of such nondisclosure requirements, 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 ‘‘Targeting Child Preda5 tors Act of 2017’’. 


lotter on DSKBCFDHB2PROD with BILLS
2 

•S 1709 IS

1 SEC. 2. NONDISCLOSURE OF ADMINISTRATIVE SUBPOENAS. 

2 Section 3486(a) of title 18, United States Code, is 

3 amended— 

4 (1) by striking ‘‘the Secretary of the Treasury’’ 

5 each place it appears and inserting ‘‘the Secretary of 

6 Homeland Security’’; 

7 (2) in paragraph (5), by striking ‘‘ordered by a 

8 court’’; and 

9 (3) in paragraph (6)— 

10 (A) in subparagraph (A), by striking ‘‘A 

11 United States’’ and inserting ‘‘Except as pro12 vided in subparagraph (D), a United States’’; 

13 and 

14 (B) by adding at the end the following: 

15 ‘‘(D)(i)(I) If a subpoena issued under this section as 

16 described in paragraph (1)(A)(i)(II) is accompanied by a 

17 certification under subclause (II) and notice of the right 

18 to judicial review under clause (iii), no recipient of such 

19 a subpoena shall disclose to any person that the Federal 

20 official who issued the subpoena has sought or obtained 

21 access to information or records under this section, for 

22 a period of 180 days. 

23 ‘‘(II) The requirements of subclause (I) shall apply 

24 if the Federal official who issued the subpoena certifies 

25 that the absence of a prohibition of disclosure under this 

26 subsection may result in— 


lotter on DSKBCFDHB2PROD with BILLS
3 

•S 1709 IS

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

2 an individual; 

3 ‘‘(bb) flight from prosecution; 

4 ‘‘(cc) destruction of or tampering with evidence; 

5 ‘‘(dd) intimidation of potential witnesses; or 

6 ‘‘(ee) otherwise seriously jeopardizing an inves7 tigation. 

8 ‘‘(ii)(I) A recipient of a subpoena under this section 

9 as described in paragraph (1)(A)(i)(II) may disclose infor10 mation otherwise subject to any applicable nondisclosure 

11 requirement to— 

12 ‘‘(aa) those persons to whom disclosure is nec13 essary in order to comply with the request; 

14 ‘‘(bb) an attorney in order to obtain legal advice 

15 or assistance regarding the request; or 

16 ‘‘(cc) other persons as permitted by the Federal 

17 official who issued the subpoena. 

18 ‘‘(II) A person to whom disclosure is made under sub19 clause (I) shall be subject to the nondisclosure require20 ments applicable to a person to whom a subpoena is issued 

21 under this section in the same manner as the person to 

22 whom the subpoena was issued. 

23 ‘‘(III) Any recipient that discloses to a person de24 scribed in subclause (I) information otherwise subject to 


lotter on DSKBCFDHB2PROD with BILLS
4 

•S 1709 IS

1 a nondisclosure requirement shall notify the person of the 

2 applicable nondisclosure requirement. 

3 ‘‘(IV) At the request of the Federal official who 

4 issued the subpoena, any person making or intending to 

5 make a disclosure under item (aa) or (cc) of subclause 

6 (I) shall identify to the individual making the request 

7 under this clause the person to whom such disclosure will 

8 be made or to whom such disclosure was made prior to 

9 the request. 

10 ‘‘(iii)(I) A nondisclosure requirement imposed under 

11 clause (i) shall be subject to judicial review under section 

12 3486A. 

13 ‘‘(II) A subpoena issued under this section as de14 scribed in paragraph (1)(A)(i)(II), in connection with 

15 which a nondisclosure requirement under clause (i) is im16 posed, shall include notice of the availability of judicial re17 view described in subclause (I). 

18 ‘‘(iv) A nondisclosure requirement imposed under 

19 clause (1) may be extended in accordance with section 

20 3486A(a)(4).’’. 

21 SEC. 3. JUDICIAL REVIEW OF NONDISCLOSURE REQUIRE22 MENTS. 

23 (a) IN GENERAL.—Chapter 223 of title 18, United 

24 States Code, is amended by inserting after section 3486 

25 the following: 


lotter on DSKBCFDHB2PROD with BILLS
5 

•S 1709 IS

1 ‘‘§ 3486A. Judicial review of nondisclosure require2 ments 

3 ‘‘(a) NONDISCLOSURE.— 

4 ‘‘(1) IN GENERAL.— 

5 ‘‘(A) NOTICE.—If a recipient of a sub6 poena under section 3486 as described in sub7 section (a)(1)(A)(i)(II) of section 3486 wishes 

8 to have a court review a nondisclosure require9 ment imposed in connection with the subpoena, 

10 the recipient may notify the Government or file 

11 a petition for judicial review in any court de12 scribed in subsection (a)(5) of section 3486. 

13 ‘‘(B) APPLICATION.—Not later than 30 

14 days after the date of receipt of a notification 

15 under subparagraph (A), the Government shall 

16 apply for an order prohibiting the disclosure of 

17 the existence or contents of the relevant sub18 poena. An application under this subparagraph 

19 may be filed in the district court of the United 

20 States for the judicial district in which the re21 cipient of the subpoena is doing business or in 

22 the district court of the United States for any 

23 judicial district within which the authorized in24 vestigation that is the basis for the subpoena is 

25 being conducted. The applicable nondisclosure 

26 requirement shall remain in effect during the 


lotter on DSKBCFDHB2PROD with BILLS
6 

•S 1709 IS

1 pendency of proceedings relating to the require2 ment. 

3 ‘‘(C) CONSIDERATION.—A district court of 

4 the United States that receives a petition under 

5 subparagraph (A) or an application under sub6 paragraph (B) should rule expeditiously, and 

7 shall, subject to paragraph (3), issue a non8 disclosure order that includes conditions appro9 priate to the circumstances. 

10 ‘‘(2) APPLICATION CONTENTS.—An application 

11 for a nondisclosure order or extension thereof or a 

12 response to a petition filed under paragraph (1) 

13 shall include a certification from the Federal official 

14 who issued the subpoena indicating that the absence 

15 of a prohibition of disclosure under this subsection 

16 may result in— 

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

18 of an individual; 

19 ‘‘(B) flight from prosecution; 

20 ‘‘(C) destruction of or tampering with evi21 dence; 

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

23 ‘‘(E) otherwise seriously jeopardizing an 

24 investigation. 


lotter on DSKBCFDHB2PROD with BILLS
7 

•S 1709 IS

1 ‘‘(3) STANDARD.—A district court of the 

2 United States shall issue a nondisclosure order or 

3 extension thereof under this subsection if the court 

4 determines that there is reason to believe that disclo5 sure of the information subject to the nondisclosure 

6 requirement during the applicable time period may 

7 result in— 

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

9 of an individual; 

10 ‘‘(B) flight from prosecution; 

11 ‘‘(C) destruction of or tampering with evi12 dence; 

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

14 ‘‘(E) otherwise seriously jeopardizing an 

15 investigation. 

16 ‘‘(4) EXTENSION.—Upon a showing that the 

17 circumstances described in subparagraphs (A) 

18 through (E) of paragraph (3) continue to exist, a 

19 district court of the United States may issue an ex 

20 parte order extending a nondisclosure order imposed 

21 under this subsection or under section 

22 3486(a)(6)(D) for additional periods of 180 days, 

23 or, if the court determines that the circumstances 

24 necessitate a longer period of nondisclosure, for ad25 ditional periods which are longer than 180 days. 


lotter on DSKBCFDHB2PROD with BILLS
8 

•S 1709 IS

1 ‘‘(b) CLOSED HEARINGS.—In all proceedings under 

2 this section, subject to any right to an open hearing in 

3 a contempt proceeding, the court must close any hearing 

4 to the extent necessary to prevent an unauthorized disclo5 sure of a request for records, a report, or other informa6 tion made to any person or entity under section 3486. Pe7 titions, filings, records, orders, certifications, and sub8 poenas must also be kept under seal to the extent and 

9 as long as necessary to prevent the unauthorized disclo10 sure of a subpoena under section 3486.’’. 

11 (b) CLERICAL AMENDMENT.—The table of sections 

12 at the beginning of chapter 223 of title 18, United States 

13 Code, is amended by inserting after the item relating to 

14 section 3486 the following: 

‘‘3486A. Judicial review of nondisclosure requirements.’’. 

Æ 


lotter on DSKBCFDHB2PROD with BILLS