II

106TH CONGRESS

1ST SESSION S. 854

To protect the privacy and constitutional rights of Americans, to establish

standards and procedures regarding law enforcement access to location

information, decryption assistance for encrypted communications and

stored electronic information, and other private information, to affirm

the rights of Americans to use and sell encryption products as a tool

for protecting their online privacy, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 21, 1999

Mr. LEAHY introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To protect the privacy and constitutional rights of Americans, to establish standards and procedures regarding

law enforcement access to location information,

decryption assistance for encrypted communications and

stored electronic information, and other private information, to affirm the rights of Americans to use and sell

encryption products as a tool for protecting their online

privacy, 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,
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

2 (a) SHORT TITLE.—This Act may be cited as the

3 ‘‘Electronic Rights for the 21st Century Act’’.

4 (b) TABLE OF CONTENTS.—The table of contents for

5 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Purposes.

Sec. 3. Findings.

Sec. 4. Definitions.

TITLE I—PRIVACY PROTECTION FOR COMMUNICATIONS AND

ELECTRONIC INFORMATION

Sec. 101. Enhanced privacy protection for information on computer networks.

Sec. 102. Government access to location information.

Sec. 103. Enhanced privacy protection for transactional information obtained

from pen registers and trap and trace devices.

Sec. 104. Privacy protection for conference calls.

Sec. 105. Enhanced privacy protection for packet networks, including the Internet.

Sec. 106. Privacy safeguards for information collected by Internet registrars.

Sec. 107. Reports concerning governmental access to electronic communications.

Sec. 108. Roving wiretaps.

Sec. 109. Authority to provide customer location information for emergency

purposes.

Sec. 110. Confidentiality of subscriber information.

TITLE II—PROMOTING USE OF ENCRYPTION

Sec. 201. Freedom to use encryption.

Sec. 202. Purchase and use of encryption products by the Federal Government.

Sec. 203. Law enforcement decryption assistance.

TITLE III—PRIVACY PROTECTION FOR LIBRARY LOAN AND BOOK

SALE RECORDS

Sec. 301. Wrongful disclosure of library loan and book sale records.

TITLE IV—PRIVACY PROTECTION FOR SATELLITE HOME

VIEWERS

Sec. 401. Privacy protection for subscribers of satellite television services for

private home viewing.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are—
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1 (1) to promote the privacy and constitutional

2 rights of individuals and organizations in networked

3 computer systems and other digital environments,

4 protect the confidentiality of information and secu5 rity of critical infrastructure systems relied on by in6 dividuals, businesses and government agencies, and

7 properly balance the needs of law enforcement to

8 have the access to electronic communications and in9 formation in appropriate circumstances;

10 (2) to encourage Americans to develop and de11 ploy encryption technology and to promote the use

12 of encryption by Americans to protect the security,

13 confidentiality, and privacy of their lawful wire and

14 electronic communications and stored electronic in15 formation; and

16 (3) to establish privacy standards and proce17 dures by which investigative or law enforcement offi18 cers and foreign governments may obtain decryption

19 assistance for encrypted communications and stored

20 electronic information.

21 SEC. 3. FINDINGS.

22 Congress finds that—

23 (1) the digitization of information and the ex24 plosion in the growth of computing and electronic

25 networking offers tremendous potential benefits to
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1 the way Americans live, work, and are entertained,

2 but also raises new threats to the privacy of the

3 American people and the competitiveness of Amer4 ican businesses;

5 (2) a secure, private, and trusted national and

6 global information infrastructure is essential to pro7 mote economic growth, protect privacy, and meet the

8 needs of the American people and businesses;

9 (3) the rights of Americans to the privacy and

10 security of their communications and in the con11 ducting of personal and business affairs should be

12 promoted and protected;

13 (4) the authority and ability of investigative

14 and law enforcement officers to access and decipher,

15 in a timely manner and as provided by law, wire and

16 electronic communications, and stored electronic in17 formation necessary to provide for public safety and

18 national security should also be preserved;

19 (5) individuals will not entrust their sensitive

20 personal, medical, financial, and other information

21 to computers and computer networks unless the se22 curity and privacy of that information is assured;

23 (6) businesses will not entrust their proprietary

24 and sensitive corporate information, including infor25 mation about products, processes, customers, fi-
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1 nances, and employees, to computers and computer

2 networks unless the security and privacy of that in3 formation is assured;

4 (7) America’s critical infrastructures, including

5 its telecommunications system, banking and finan6 cial infrastructure, and power and transportation in7 frastructure, increasingly rely on vulnerable informa8 tion systems, and will represent a growing risk to

9 national security and public safety unless the secu10 rity and privacy of those information systems is as11 sured;

12 (8) encryption technology is an essential tool to

13 promote and protect the privacy, security, confiden14 tiality, integrity, and authenticity of wire and elec15 tronic communications and stored electronic infor16 mation;

17 (9) encryption techniques, technology, pro18 grams, and products are widely available worldwide;

19 (10) Americans should be free to use lawfully

20 whatever particular encryption techniques, tech21 nologies, programs, or products developed in the

22 marketplace that best suits their needs in order to

23 interact electronically with the government and oth24 ers worldwide in a secure, private, and confidential

25 manner;
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1 (11) government mandates for, or otherwise

2 compelled use of, third-party key recovery systems or

3 other systems that provide surreptitious access to

4 encrypted data threatens the security and privacy of

5 information systems;

6 (12) a national encryption policy is needed to

7 advance the development of the national and global

8 information infrastructure, and preserve the right to

9 privacy of Americans and the public safety and na10 tional security of the United States;

11 (13) Congress and the American people have

12 recognized the need to balance the right to privacy

13 and the protection of the public safety with national

14 security;

15 (14) the Constitution of the United States per16 mits lawful electronic surveillance and the use of

17 other investigative tools by law enforcement officers

18 and the seizure of stored electronic information only

19 upon compliance with stringent standards and proce20 dures designed to protect the right to privacy and

21 other rights protected under the fourth amendment

22 of the Constitution of the United States;

23 (15) there is a need to clarify the standards

24 and procedures by which investigative or law en-
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1 forcement officers obtain decryption assistance from

2 persons—

3 (A) who are voluntarily entrusted with the

4 means to decrypt wire and electronic commu5 nications and stored electronic information; or

6 (B) have information that enables the

7 decryption of such communications and infor8 mation;

9 (16) Americans are increasingly shopping online

10 and purchasing books from online vendors, and ex11 pect that their choices of reading or viewing mate12 rials will be kept confidential;

13 (17) protecting the confidentiality and privacy

14 of the books, other written materials, and movies

15 that a person chooses to read or view should be pro16 tected to ensure the free exercise of first amendment

17 rights regardless of medium;

18 (18) generally, under current law, telecommuni19 cations carriers may not disclose individually identi20 fiable customer proprietary network information

21 without their customers’ approval, while providers of

22 electronic communications services and remote com23 puting services may make such disclosure to anyone

24 other than a governmental entity and have no legal
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1 obligation to notify their subscribers when they do

2 so;

3 (19) subscribers of Internet services through fa4 cilities of cable operators must be given notice and

5 an opportunity to prohibit disclosure before the cable

6 operator may disclose any personally identifiable in7 formation, including name or address, about a sub8 scriber to any other person, while providers of elec9 tronic communications services and remote com10 puting services have no similar legal obligation to

11 protect the privacy of their subscribers; and

12 (20) given the convergence among wireless, wire

13 line, cable, broadcast, and satellite services, privacy

14 safeguards should be applied more uniformly across

15 different media in order to provide a level competi16 tive playing field and consistent privacy protections.

17 SEC. 4. DEFINITIONS.

18 In this Act:

19 (1) AGENCY.—The term ‘‘agency’’, in the case

20 of the United States Government, has the meaning

21 given the term in section 6 of title 18, United States

22 Code, and includes the United States Postal Service.

23 (2) ENCRYPT; ENCRYPTION.—The terms

24 ‘‘encrypt’’ and ‘‘encryption’’ refer to the scrambling

25 (and descrambling) of wire communications, elec-
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1 tronic communications, or electronically stored infor2 mation using mathematical formulas or algorithms

3 in order to preserve the confidentiality, integrity, or

4 authenticity of, and prevent unauthorized recipients

5 from accessing or altering, such communications or

6 information.

7 (3) ENCRYPTION PRODUCT.—The term

8 ‘‘encryption product’’ means a computing device,

9 computer hardware, computer software, or tech10 nology with encryption capabilities.

11 (4) KEY.—The term ‘‘key’’ means the variable

12 information used in or produced by a mathematical

13 formula, code, or algorithm, or any component

14 thereof, used to encrypt or decrypt wire communica15 tions, electronic communications, or electronically

16 stored information.

17 (5) PERSON.—The term ‘‘person’’ has the

18 meaning given the term in section 2510(6) of title

19 18, United States Code.

20 (6) STATE.—The term ‘‘State’’ includes a State

21 of the United States, the District of Columbia, and

22 any commonwealth, territory, or possession of the

23 United States.

24 (7) UNITED STATES PERSON.—The term

25 ‘‘United States person’’ means any—
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1 (A) national of the United States; or

2 (B) legal entity that—

3 (i) is organized under the laws of the

4 United States or any State; and

5 (ii) has its principal place of business

6 in the United States.

7 TITLE I—PRIVACY PROTECTION

8 FOR COMMUNICATIONS AND

9 ELECTRONIC INFORMATION

10 SEC. 101. ENHANCED PRIVACY PROTECTION FOR INFORMA11 TION ON COMPUTER NETWORKS.

12 Section 2703(b) of title 18, United States Code, is

13 amended by striking paragraph (1) and inserting the fol14 lowing new paragraph (1):

15 ‘‘(1) IN GENERAL.—A governmental entity may

16 require a provider of remote computing service to

17 disclose the contents of any electronic communica18 tion to which this paragraph is made applicable by

19 paragraph (2)—

20 ‘‘(A) pursuant to a warrant issued under

21 the Federal Rules of Criminal Procedure or

22 equivalent State warrant, a copy of which war23 rant shall be served on the subscriber or cus24 tomer of such remote computing service before
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1 or at the same time the warrant is served on

2 the provider of the remote computing service; or

3 ‘‘(B) pursuant to a Federal or State grand

4 jury or trial subpoena, a copy of which sub5 poena shall be served on the subscriber or cus6 tomer of such remote computing service under

7 circumstances allowing the subscriber or cus8 tomer a meaningful opportunity to challenge

9 the subpoena.’’.

10 (b) CONFORMING AMENDMENTS.—Paragraph (2) of

11 that section is amended—

12 (1) by indenting the paragraph 2 ems;

13 (2) by inserting ‘‘APPLICABILITY.—’’ after

14 ‘‘(2)’’; and

15 (3) by indenting subparagraphs (A) and (B) 4

16 ems.

17 SEC. 102. GOVERNMENT ACCESS TO LOCATION INFORMA18 TION.

19 (a) COURT ORDER REQUIRED.—Section 2703 of title

20 18, United States Code, is amended by adding at the end

21 the following:

22 ‘‘(g) DISCLOSURE OF LOCATION INFORMATION TO

23 GOVERNMENTAL ENTITIES.—

24 ‘‘(1) DISCLOSURE UPON COURT ORDER.—A

25 provider of mobile electronic communication service
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1 shall provide to a governmental entity information

2 generated by and disclosing the current physical lo3 cation of a subscriber’s equipment only if the gov4 ernmental entity obtains a court order issued upon

5 a finding that there is probable cause to believe that

6 the equipment has been used, is being used, or is

7 about to be used to commit a felony offense.

8 ‘‘(2) DISCLOSURE UPON SUBSCRIBER OR USER

9 CONSENT.—A provider of mobile electronic commu10 nication service may provide to a governmental enti11 ty information described in paragraph (1) with the

12 consent of the subscriber or the user of the equip13 ment concerned.’’.

14 (b) CONFORMING AMENDMENT.—Subsection

15 (c)(1)(B) of that section is amended by striking ‘‘(b) of

16 this section’’ and inserting ‘‘(b), or wireless location infor17 mation covered by subsection (g)’’.

18 SEC. 103. ENHANCED PRIVACY PROTECTION FOR TRANS19 ACTIONAL INFORMATION OBTAINED FROM

20 PEN REGISTERS AND TRAP AND TRACE DE21 VICES.

22 Section 3123(a) of title 18, United States Code, is

23 amended to read as follows:

24 ‘‘(a) IN GENERAL.—Upon an application made under

25 section 3122, the court may enter an ex parte order—
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1 ‘‘(1) authorizing the installation and use of a

2 pen register or a trap and trace device within the

3 jurisdiction of the court if the court finds, based on

4 the certification by the attorney for the government

5 or the State law enforcement or investigative officer,

6 that the information likely to be obtained by such

7 installation and use is relevant to an ongoing crimi8 nal investigation; and

9 ‘‘(2) directing that the use of the pen register

10 or trap and trace device be conducted in such a way

11 as to minimize the recording or decoding of any elec12 tronic or other impulses that are not related to the

13 dialing and signaling information utilized in call

14 processing by the service provider upon whom the

15 order is served.’’.

16 SEC. 104. PRIVACY PROTECTION FOR CONFERENCE CALLS.

17 Section 2518 of title 18, United States Code, is

18 amended by adding at the end the following:

19 ‘‘(13) The interception of wire or electronic commu20 nications pursuant to an order under this section must

21 be terminated when the facility identified in the order au22 thorizing such interception is no longer being used, unless

23 the judge determines on the basis of facts submitted by

24 the applicant that there is probable cause to believe that

25 an individual continuing as a party to the communication
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1 is committing, has committed, or is about to commit a

2 particular offense enumerated in the order and there is

3 probable cause to believe that particular communications

4 concerning that offense will be obtained through such con5 tinuing interception.’’.

6 SEC. 105. ENHANCED PRIVACY PROTECTION FOR PACKET

7 NETWORKS, INCLUDING THE INTERNET.

8 Section 3121(c) of title 18, United States Code, is

9 amended by striking ‘‘other impulses’’ and all that follows

10 and inserting ‘‘other impulses—

11 ‘‘(1) to the dialing and signaling information

12 utilized in call processing; or

13 ‘‘(2) in the case of a packet-switched network,

14 to the addressing information.’’.

15 SEC. 106. PRIVACY SAFEGUARDS FOR INFORMATION COL16 LECTED BY INTERNET REGISTRARS.

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

18 States Code, as amended by section 102(a) of this Act,

19 is further amended by adding at the end the following:

20 ‘‘(h) RECORDS CONCERNING DOMAIN NAME REG21 ISTRATION SERVICE.—A provider of domain name reg22 istration service may disclose a record or other informa23 tion pertaining to a subscriber or customer of such

24 service—

25 ‘‘(1) to any person—
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1 ‘‘(A) if the provider has provided the sub2 scriber or customer, in a clear and conspicuous

3 manner, the opportunity to prohibit such disclo4 sure;

5 ‘‘(B) in the case of information that identi6 fies the service provider hosting the website of

7 the subscriber or customer; or

8 ‘‘(C) to the extent such disclosure is nec9 essary incident to the provision of such service

10 or for the protection of the rights or property

11 of the provider of such service; or

12 ‘‘(2) without notice or consent of the subscriber

13 or customer in response to a subpoena or warrant

14 authorized by a Federal or State statute.’’.

15 (b) DOMAIN NAME REGISTRATION SERVICE DE16 FINED.—Section 2711 of such title is amended—

17 (1) in paragraph (1), by striking ‘‘and’’ at the

18 end;

19 (2) in paragraph (2), by striking the period at

20 the end and inserting ‘‘; and’’; and

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

22 ‘‘(3) the term ‘domain name registration serv23 ice’ means a service to the public for the assignment

24 and management of domain names and Internet

25 Protocol addresses.’’.
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1 SEC. 107. REPORTS CONCERNING GOVERNMENTAL ACCESS

2 TO ELECTRONIC COMMUNICATIONS.

3 Section 2703 of title 18, United States Code, as

4 amended by section 106(a) of this Act, is further amended

5 by adding at the end the following:

6 ‘‘(i) REPORTS.—In April each year, the Attorney

7 General shall transmit to Congress a full and complete re8 port on—

9 ‘‘(1) the number and kind of warrants, orders,

10 and subpoenas applied for by law enforcement agen11 cies of the Department of Justice under this section;

12 ‘‘(2) the number of such applications granted or

13 denied; and

14 ‘‘(3) with respect to each warrant, order, or

15 subpoena issued under this section—

16 ‘‘(A) the number and type of communica17 tions disclosed;

18 ‘‘(B) the approximate number and fre19 quency of incriminating communications dis20 closed;

21 ‘‘(C) the offense specified in the applica22 tion; and

23 ‘‘(D) the approximate number of persons

24 whose communications were intercepted.’’.
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1 SEC. 108. ROVING WIRETAPS.

2 (a) SCOPE OF WIRETAPS.—Subsection (11)(b) of sec3 tion 2518 of title 18, United States Code, is amended by

4 striking clauses (ii) through (iv) and inserting the fol5 lowing new clauses:

6 ‘‘(ii) the application identifies the person

7 believed to be committing the offense and whose

8 communications are to be intercepted and the

9 applicant makes a showing that—

10 ‘‘(I) the person changes facilities in a

11 way that has the effect of thwarting inter12 ception from a specified facility; or

13 ‘‘(II) the person intends to thwart

14 interception by changing facilities; and

15 ‘‘(iii) the judge finds that such showing

16 has been adequately made.’’.

17 (b) LIMITATION.—Subsection (12) of that section is

18 amended—

19 (1) by inserting ‘‘(a)’’ after ‘‘(12)’’; and

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

21 ‘‘(b) Each order and extension thereof to which the

22 requirements of subsections (1)(b)(ii) and (3)(D) of this

23 section do not apply by reason of subsection (11) of this

24 section shall provide that the authorization to intercept

25 only applies to communications to which the person be-
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1 lieved to be committing the offense and named in the order

2 is a party.’’.

3 SEC. 109. AUTHORITY TO PROVIDE CUSTOMER LOCATION

4 INFORMATION FOR EMERGENCY PURPOSES.

5 (a) USE OF CALL LOCATION AND CRASH NOTIFICA6 TION INFORMATION.—Subsection (d) of section 222 of the

7 Communications Act of 1934 (47 U.S.C. 222) is

8 amended—

9 (1) by striking ‘‘or’’ at the end of paragraph

10 (2);

11 (2) by striking the period at the end of para12 graph (3) and inserting a semicolon; and

13 (3) by adding at the end the following new

14 paragraphs:

15 ‘‘(4) to provide call location information con16 cerning the user of a commercial mobile service (as

17 such term is defined in section 332(d))—

18 ‘‘(A) to a public safety answering point,

19 emergency medical service provider or emer20 gency dispatch provider, public safety official,

21 fire service official, law enforcement official,

22 hospital emergency facility, or trauma care fa23 cility in order to respond to the user’s call for

24 emergency services;
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1 ‘‘(B) to inform the user’s legal guardian or

2 members of the user’s immediate family of the

3 user’s location in an emergency situation that

4 involves the risk of death or serious physical

5 harm; or

6 ‘‘(C) to providers of information or data7 base management services solely for purposes of

8 assisting in the delivery of emergency services

9 in response to an emergency; or

10 ‘‘(5) to transmit automatic crash notification

11 information as part of the operation of an automatic

12 crash notification system.’’.

13 (b) CUSTOMER APPROVAL OF USE OF CALL LOCA14 TION AND CRASH NOTIFICATION INFORMATION.—That

15 section is further amended—

16 (1) by redesignating subsection (f) as sub17 section (h); and

18 (2) by inserting after subsection (e) the fol19 lowing new subsection (f):

20 ‘‘(f) CUSTOMER APPROVAL OF USE OF CALL LOCA21 TION INFORMATION AND CRASH NOTIFICATION INFORMA22 TION.—For purposes of subsection (c)(1), without the ex23 press prior authorization of the customer, a customer shall

24 not be considered to have approved the use or disclosure

25 of or access to—
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1 ‘‘(1) call location information concerning the

2 user of a commercial mobile service (as such term is

3 defined in section 332(d)), other than in accordance

4 with subsection (d)(4); or

5 ‘‘(2) automatic crash notification information to

6 any person other than for use in the operation of an

7 automatic crash notification system.’’.

8 (c) USE OF LISTED AND UNLISTED SUBSCRIBER IN9 FORMATION FOR EMERGENCY SERVICES.—That section is

10 further amended by inserting after subsection (f), as

11 amended by subsection (b) of this section, the following

12 new subsection (g):

13 ‘‘(g) SUBSCRIBER LISTED AND UNLISTED INFORMA14 TION FOR EMERGENCY SERVICES.—Notwithstanding sub15 sections (b), (c), and (d), a telecommunications carrier

16 that provides telephone exchange service shall provide in17 formation described in subsection (h)(3)(A) (including in18 formation pertaining to subscribers whose information is

19 unlisted or unpublished) that is in its possession or control

20 (including information pertaining to subscribers of other

21 carriers) on a timely and unbundled basis, under non22 discriminatory and reasonable rates, terms, and conditions

23 to providers of emergency services, and providers of emer24 gency support services, solely for purposes of delivering

25 or assisting in the delivery of emergency services.’’.
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1 (d) DEFINITIONS.—Subsection (h) of that section, as

2 redesignated by subsection (b)(1) of this section, is

3 amended—

4 (1) in paragraph (1)(A), by inserting ‘‘loca5 tion,’’ after ‘‘destination,’’; and

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

7 ‘‘(4) PUBLIC SAFETY ANSWERING POINT.—The

8 term ‘public safety answering point’ means a facility

9 that has been designated to receive emergency calls

10 and route them to emergency service personnel.

11 ‘‘(5) EMERGENCY SERVICES.—The term ‘emer12 gency services’ means 911 emergency services and

13 emergency notification services.

14 ‘‘(6) EMERGENCY NOTIFICATION SERVICES.—

15 The term ‘emergency notification services’ means

16 services that notify the public of an emergency.

17 ‘‘(7) EMERGENCY SUPPORT SERVICES.—The

18 term ‘emergency support services’ means informa19 tion or data base management services used in sup20 port of emergency services.’’.

21 SEC. 110. CONFIDENTIALITY OF SUBSCRIBER INFORMA22 TION.

23 Section 2703(c) of title 18, United States Code, is

24 amended—
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1 (1) in paragraph (1)(A), by inserting before the

2 period at the end the following: ‘‘only if such disclo3 sure is—

4 ‘‘(i) necessary to initiate, render, bill, and col5 lect for such service;

6 ‘‘(ii) necessary to protect the rights or property

7 of the provider of such service;

8 ‘‘(iii) required by law;

9 ‘‘(iv) made at the request of the subscriber or

10 customer; or

11 ‘‘(v) if the provider has provided the subscriber

12 or customer, in a clear and conspicuous manner,

13 with the opportunity to prohibit such disclosure.’’;

14 and

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

16 ‘‘(3) Nothing in this subsection may be construed to

17 prohibit a provider of electronic communication service or

18 remote computing service from using, disclosing, or per19 mitting access to aggregate subscriber information from

20 which individual subscriber identities and characteristics

21 have been removed.’’.
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1 TITLE II—PROMOTING USE OF

2 ENCRYPTION

3 SEC. 201. FREEDOM TO USE ENCRYPTION.

4 (a) NO DOMESTIC ENCRYPTION CONTROLS.—It shall

5 be lawful for any person within the United States, and

6 for any United States person in a foreign country, to use,

7 develop, manufacture, sell, distribute, or import any

8 encryption product, regardless of the encryption algorithm

9 selected, encryption key length chosen, existence of key re10 covery or other plaintext access capability, or implementa11 tion or medium used.

12 (b) PROHIBITION ON GOVERNMENT-COMPELLED

13 KEY ESCROW OR KEY RECOVERY.—

14 (1) IN GENERAL.—Except as provided in para15 graph (3), no agency of the United States may re16 quire, compel, set standards for, condition any ap17 proval on, or condition the receipt of any benefit on,

18 a requirement that a decryption key, access to a

19 decryption key, key recovery information, or other

20 plaintext access capability be—

21 (A) required to be built into computer

22 hardware or software for any purpose;

23 (B) given to any other person, including

24 any agency of the United States or a State, or

25 any entity in the private sector; or
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1 (C) retained by the owner or user of an

2 encryption key or any other person, other than

3 for encryption products for the use of the Fed4 eral Government or a State government.

5 (2) USE OF PARTICULAR PRODUCTS.—No agen6 cy of the United States may require any person who

7 is not an employee or agent of the United States or

8 a State to use any key recovery or other plaintext

9 access features for communicating or transacting

10 business with any agency of the United States.

11 (3) EXCEPTIONS.—The prohibition in para12 graph (1) does not apply to—

13 (A) encryption used by an agency of the

14 United States, or the employees or agents of

15 such agency, solely for the internal operations

16 and telecommunications systems of the United

17 States Government; or

18 (B) the authority of any investigative or

19 law enforcement officer, or any member of the

20 intelligence community (as defined in section 3

21 of the National Security Act of 1947 (50

22 U.S.C. 401a)), acting under any law in effect

23 on the date of enactment of this Act, to gain

24 access to encrypted communications or informa25 tion.
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1 (c) USE OF ENCRYPTION FOR AUTHENTICATION OR

2 INTEGRITY PURPOSES.—No agency of the United States

3 shall establish any condition, tie, or link between

4 encryption products, standards, and services used for con5 fidentiality purposes and those used for authentication, in6 tegrity, or access control purposes.

7 SEC. 202. PURCHASE AND USE OF ENCRYPTION PRODUCTS

8 BY THE FEDERAL GOVERNMENT.

9 To ensure that secure electronic access to the Federal

10 Government is available to persons outside of and not op11 erating under contract with agencies of the United States,

12 the Federal Government may not purchase any encryption

13 product with a key recovery or other plaintext access fea14 ture if such key recovery or plaintext access feature would

15 interfere with use of the full encryption capabilities of the

16 product when interoperating with other commercial

17 encryption products.

18 SEC. 203. LAW ENFORCEMENT DECRYPTION ASSISTANCE.

19 (a) IN GENERAL.—Part I of title 18, United States

20 Code, is amended by adding at the end the following:

21 ‘‘CHAPTER 124—ENCRYPTED WIRE OR

22 ELECTRONIC COMMUNICATIONS AND

23 STORED ELECTRONIC INFORMATION

‘‘Sec.

‘‘2801. Definitions.

‘‘2802. Access to decryption assistance for communications.
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‘‘2803. Access to decryption assistance for stored electronic communications or

records.

‘‘2804. Foreign government access to decryption assistance.

1 ‘‘§ 2801. Definitions

2 ‘‘In this chapter:

3 ‘‘(1) DECRYPTION ASSISTANCE.—The term

4 ‘decryption assistance’ means assistance that pro5 vides or facilitates access to the plaintext of an

6 encrypted wire or electronic communication or stored

7 electronic information, including the disclosure of a

8 decryption key or the use of a decryption key to

9 produce plaintext.

10 ‘‘(2) DECRYPTION KEY.—The term ‘decryption

11 key’ means the variable information used in or pro12 duced by a mathematical formula, code, or algo13 rithm, or any component thereof, used to decrypt a

14 wire communication or electronic communication or

15 stored electronic information that has been

16 encrypted.

17 ‘‘(3) ENCRYPT; ENCRYPTION.—The terms

18 ‘encrypt’ and ‘encryption’ refer to the scrambling

19 (and descrambling) of wire communications, elec20 tronic communications, or electronically stored infor21 mation using mathematical formulas or algorithms

22 in order to preserve the confidentiality, integrity, or

23 authenticity of, and prevent unauthorized recipients
27

•S 854 IS

1 from accessing or altering, such communications or

2 information.

3 ‘‘(4) FOREIGN GOVERNMENT.—The term ‘for4 eign government’ has the meaning given the term in

5 section 1116.

6 ‘‘(5) OFFICIAL REQUEST.—The term ‘official

7 request’ has the meaning given the term in section

8 3506(c).

9 ‘‘(6) INCORPORATED DEFINITIONS.—Any term

10 used in this chapter that is not defined in this chap11 ter and that is defined in section 2510, has the

12 meaning given the term in section 2510.

13 ‘‘§ 2802. Access to decryption assistance for commu14 nications

15 ‘‘(a) CRIMINAL INVESTIGATIONS.—

16 ‘‘(1) IN GENERAL.—An order authorizing the

17 interception of a wire or electronic communication

18 under section 2518 shall, upon request of the appli19 cant, direct that a provider of wire or electronic

20 communication service, or any other person pos21 sessing information capable of decrypting that com22 munication, other than a person whose communica23 tions are the subject of the interception, shall

24 promptly furnish the applicant with the necessary

25 decryption assistance, if the court finds that the
28

•S 854 IS

1 decryption assistance sought is necessary for the

2 decryption of a communication intercepted pursuant

3 to the order.

4 ‘‘(2) LIMITATIONS.—Each order described in

5 paragraph (1), and any extension of such an order,

6 shall—

7 ‘‘(A) contain a provision that the

8 decryption assistance provided shall involve dis9 closure of a private decryption key only if no

10 other form of decryption assistance is available

11 and otherwise shall be limited to the minimum

12 necessary to decrypt the communications inter13 cepted pursuant to such order; and

14 ‘‘(B) terminate on the earlier of—

15 ‘‘(i) the date on which the authorized

16 objective is attained; or

17 ‘‘(ii) 30 days after the date on which

18 the order or extension, as applicable, is

19 issued.

20 ‘‘(3) NOTICE.—If decryption assistance is pro21 vided pursuant to an order under this subsection,

22 the court issuing the order shall cause to be served

23 on the person whose communications are the subject

24 of such decryption assistance, as part of the inven25 tory required to be served pursuant to section
29

•S 854 IS

1 2518(8), notice of the receipt of the decryption as2 sistance and a specific description of the decryption

3 keys or other decryption assistance disclosed.

4 ‘‘(b) FOREIGN INTELLIGENCE INVESTIGATIONS.—

5 ‘‘(1) IN GENERAL.—An order authorizing the

6 interception of a wire or electronic communication

7 under section 105(b)(2) of the Foreign Intelligence

8 Surveillance Act of 1978 (50 U.S.C. 1805(b)(2))

9 shall, upon request of the applicant, direct that a

10 provider of wire or electronic communication service,

11 or any other person possessing information capable

12 of decrypting such communications, other than a

13 person whose communications are the subject of the

14 interception, shall promptly furnish the applicant

15 with the necessary decryption assistance, if the court

16 finds that the decryption assistance sought is nec17 essary for the decryption of a communication inter18 cepted pursuant to the order.

19 ‘‘(2) LIMITATIONS.—Each order described in

20 paragraph (1), and any extension of such an order,

21 shall—

22 ‘‘(A) contain a provision that the

23 decryption assistance provided shall be limited

24 to the minimum necessary to decrypt the com-
30

•S 854 IS

1 munications intercepted pursuant to such order;

2 and

3 ‘‘(B) terminate on the earlier of—

4 ‘‘(i) the date on which the authorized

5 objective is attained; or

6 ‘‘(ii) 30 days after the date on which

7 the order or extension, as applicable, is

8 issued.

9 ‘‘(c) GENERAL PROHIBITION ON DISCLOSURE.—

10 Other than pursuant to an order under subsection (a) or

11 (b), no person possessing information capable of

12 decrypting a wire or electronic communication of another

13 person shall disclose that information or provide

14 decryption assistance to an investigative or law enforce15 ment officer.

16 ‘‘§ 2803. Access to decryption assistance for stored

17 electronic communications or records

18 ‘‘(a) DECRYPTION ASSISTANCE.—No person may dis19 close a decryption key or provide decryption assistance

20 pertaining to the contents of stored electronic communica21 tions or records, including those disclosed pursuant to sec22 tion 2703, to a governmental entity, except—

23 ‘‘(1) pursuant to a warrant issued under the

24 Federal Rules of Criminal Procedure or an equiva25 lent State warrant, a copy of which warrant shall be
31

•S 854 IS

1 served on the person who created the electronic com2 munication or record before or at the same time

3 service is made on the keyholder;

4 ‘‘(2) pursuant to a subpoena, a copy of which

5 subpoena shall be served on the person who created

6 the electronic communication or record, under cir7 cumstances allowing the person meaningful oppor8 tunity to challenge the subpoena; or

9 ‘‘(3) upon the consent of the person who cre10 ated the electronic communication or record.

11 ‘‘(b) DELAY OF NOTIFICATION.—In the case of com12 munications disclosed pursuant to section 2703(a), service

13 of the copy of the warrant or subpoena on the person who

14 created the electronic communication or record may be de15 layed for a period of not to exceed 90 days upon request

16 to the court by the governmental entity requiring the

17 decryption assistance, if the court determines that there

18 is reason to believe that notification of the existence of

19 the court order or subpoena may have an adverse result

20 described in section 2705(a)(2).

21 ‘‘§ 2804. Foreign government access to decryption as22 sistance

23 ‘‘(a) IN GENERAL.—No investigative or law enforce24 ment officer may—
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•S 854 IS

1 ‘‘(1) release a decryption key to a foreign gov2 ernment or to a law enforcement agency of a foreign

3 government; or

4 ‘‘(2) except as provided in subsection (b), pro5 vide decryption assistance to a foreign government

6 or to a law enforcement agency of a foreign govern7 ment.

8 ‘‘(b) CONDITIONS FOR COOPERATION WITH FOREIGN

9 GOVERNMENT.—

10 ‘‘(1) APPLICATION FOR ORDER.—In any case in

11 which the United States has entered into a treaty or

12 convention with a foreign government to provide mu13 tual assistance with respect to providing decryption

14 assistance, the Attorney General (or the designee of

15 the Attorney General) may, upon an official request

16 to the United States from the foreign government,

17 apply for an order described in paragraph (2) from

18 the district court in which the person possessing in19 formation capable of decrypting the encrypted com20 munication or stored electronic information at issue

21 resides—

22 ‘‘(A) directing that person to release a

23 decryption key or provide decryption assistance

24 to the Attorney General (or the designee of the

25 Attorney General); and
33

•S 854 IS

1 ‘‘(B) authorizing the Attorney General (or

2 the designee of the Attorney General) to furnish

3 the foreign government with the plaintext of the

4 communication or information at issue.

5 ‘‘(2) CONTENTS OF ORDER.—An order de6 scribed in this paragraph is an order directing the

7 person possessing information capable of decrypting

8 the communication or information at issue to—

9 ‘‘(A) release a decryption key to the Attor10 ney General (or the designee of the Attorney

11 General) so that the plaintext of the commu12 nication or information may be furnished to the

13 foreign government; or

14 ‘‘(B) provide decryption assistance to the

15 Attorney General (or the designee of the Attor16 ney General) so that the plaintext of the com17 munication or information may be furnished to

18 the foreign government.

19 ‘‘(3) REQUIREMENTS FOR ORDER.—The court

20 described in paragraph (1) may issue an order de21 scribed in paragraph (2) if the court finds, on the

22 basis of an application made by the Attorney Gen23 eral under this subsection, that—

24 ‘‘(A) the decryption key or decryption as25 sistance sought is necessary for the decryption
34

•S 854 IS

1 of a communication or information that the for2 eign government is authorized to intercept or

3 seize pursuant to the law of the foreign country;

4 ‘‘(B) the law of the foreign country pro5 vides for adequate protection against arbitrary

6 interference with respect to privacy rights; and

7 ‘‘(C) the decryption key or decryption as8 sistance is being sought in connection with a

9 criminal investigation for conduct that would

10 constitute a violation of a criminal law of the

11 United States if committed within the jurisdic12 tion of the United States.’’.

13 (b) CLERICAL AMENDMENT.—The analysis for part

14 I of title 18, United States Code, is amended by adding

15 at the end the following:

‘‘124. Encrypted wire or electronic communications and

stored electronic information ........................... 2801’’.

16 TITLE III—PRIVACY PROTEC17 TION FOR LIBRARY LOAN

18 AND BOOK SALE RECORDS

19 SEC. 301. WRONGFUL DISCLOSURE OF LIBRARY LOAN AND

20 BOOK SALE RECORDS.

21 (a) IN GENERAL.—Section 2710 of title 18, United

22 States Code, is amended—

23 (1) by redesignating subsections (c) through (f)

24 as subsections (d) through (g), respectively; and
35

•S 854 IS

1 (2) by striking the section designation and all

2 that follows through the end of subsection (b) and

3 inserting the following:

4 ‘‘§ 2710. Wrongful disclosure of video tape rental or

5 sale records and library loan and book

6 sale records

7 ‘‘(a) DEFINITIONS.—In this section:

8 ‘‘(1) The term ‘book seller’ means any person,

9 engaged in the business, in or affecting interstate or

10 foreign commerce, of selling books, magazines, or

11 other printed material, or any person or other entity

12 to whom a disclosure is made under subparagraph

13 (D) or (E) of subsection (b)(2), but only with re14 spect to the information contained in the disclosure.

15 ‘‘(2) The term ‘consumer’ means any renter,

16 purchaser, or subscriber of goods or services from a

17 video tape service provider or book seller.

18 ‘‘(3) The term ‘library’ means an institution

19 that operates as a public library or serves as a li20 brary for any university, school, or college.

21 ‘‘(4) The term ‘ordinary course of business’

22 means only debt collection activities, order fulfill23 ment, request processing, and the transfer of owner24 ship.
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•S 854 IS

1 ‘‘(5) The term ‘patron’ means any individual

2 who requests or receives—

3 ‘‘(A) services within a library; or

4 ‘‘(B) books or other materials on loan from

5 a library.

6 ‘‘(6) The term ‘personally identifiable informa7 tion’ includes the following:

8 ‘‘(A) Information that identifies a person

9 as having requested or obtained specific video

10 materials or services from a video tape service

11 provider.

12 ‘‘(B) Information that identifies a person

13 as having requested or obtained specific books,

14 magazines, or other printed material from a

15 book seller.

16 ‘‘(C) Information that identifies a person

17 as having requested or obtained any materials

18 or services from a library.

19 ‘‘(7) The term ‘video tape service provider’

20 means any person, engaged in the business, in or af21 fecting interstate or foreign commerce, of rental,

22 sale, or delivery of prerecorded video cassette tapes

23 or similar audio visual materials, or any person or

24 other entity to whom a disclosure is made under

25 subparagraph (D) or (E) of subsection (b)(2), but
37

•S 854 IS

1 only with respect to the information contained in the

2 disclosure.

3 ‘‘(b) VIDEO TAPE RENTAL AND SALE AND BOOK

4 SALE RECORDS.—

5 ‘‘(1) IN GENERAL.—A video tape service pro6 vider or book seller who knowingly discloses, to any

7 person, personally identifiable information con8 cerning any consumer of such provider or seller, as

9 the case may be, shall be liable to the aggrieved per10 son for the relief provided in subsection (d).

11 ‘‘(2) DISCLOSURE.—A video tape service pro12 vider or book seller may disclose personally identifi13 able information concerning any consumer—

14 ‘‘(A) to the consumer;

15 ‘‘(B) to any person with the informed,

16 written consent of the consumer given at the

17 time the disclosure is sought;

18 ‘‘(C) to a law enforcement agency pursuant

19 to a warrant issued under the Federal Rules of

20 Criminal Procedure, an equivalent State war21 rant, or a court order issued in accordance with

22 paragraph (4);

23 ‘‘(D) to any person if the disclosure is sole24 ly of the names and addresses of consumers

25 and if—
38

•S 854 IS

1 ‘‘(i) the video tape service provider or

2 book seller, as the case may be, has pro3 vided the consumer, in a clear and con4 spicuous manner, with the opportunity to

5 prohibit such disclosure; and

6 ‘‘(ii) the disclosure does not identify

7 the title, description, or subject matter of

8 any video tapes or other audio visual mate9 rial, or books, magazines, or other printed

10 material, except that the subject matter of

11 such materials may be disclosed if the dis12 closure is for the exclusive use of mar13 keting goods and services directly to the

14 consumer;

15 ‘‘(E) to any person if the disclosure is inci16 dent to the ordinary course of business of the

17 video tape service provider or book seller; or

18 ‘‘(F) pursuant to a court order, in a civil

19 proceeding upon a showing of compelling need

20 for the information that cannot be accommo21 dated by any other means, if—

22 ‘‘(i) the consumer is given reasonable

23 notice, by the person seeking the disclo24 sure, of the court proceeding relevant to

25 the issuance of the court order; and
39

•S 854 IS

1 ‘‘(ii) the consumer is afforded the op2 portunity to appear and contest the claim

3 of the person seeking the disclosure.

4 ‘‘(3) SAFEGUARDS.—If an order is granted pur5 suant to subparagraph (C) or (F) of paragraph (2),

6 the court shall impose appropriate safeguards

7 against unauthorized disclosure.

8 ‘‘(4) COURT ORDERS.—A court order author9 izing disclosure under paragraph (2)(C) shall issue

10 only with prior notice to the consumer and only if

11 the law enforcement agency shows that there is

12 probable cause to believe that a person has engaged,

13 is engaging, or is about to engage in criminal activ14 ity and that the records or other information sought

15 are material to the investigation of such activity. In

16 the case of a State government authority, such a

17 court order shall not issue if prohibited by the law

18 of such State. A court issuing an order pursuant to

19 this subsection, on a motion made promptly by the

20 video tape service provider or the book seller, may

21 quash or modify such order if the information or

22 records requested are unreasonably voluminous in

23 nature or if compliance with such order otherwise

24 would cause an unreasonable burden on such pro25 vider or seller, as the case may be.
40

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1 ‘‘(c) LIBRARY RECORDS.—

2 ‘‘(1) IN GENERAL.—Any library that knowingly

3 discloses, to any person, personally identifiable infor4 mation concerning any patron of the library shall be

5 liable to the aggrieved person as provided in sub6 section (d).

7 ‘‘(2) DISCLOSURE.—A library may disclose per8 sonally identifiable information concerning any

9 patron—

10 ‘‘(A) to the patron;

11 ‘‘(B) to any person with the informed writ12 ten consent of the patron given at the time the

13 disclosure is sought;

14 ‘‘(C) to a law enforcement agency pursuant

15 to a warrant issued under the Federal Rules of

16 Criminal Procedure, an equivalent State war17 rant, or a court order issued in accordance with

18 paragraph (4);

19 ‘‘(D) to any person if the disclosure is sole20 ly of the names and addresses of patrons and

21 if—

22 ‘‘(i) the library has provided the pa23 tron with a written statement that affords

24 the patron the opportunity to prohibit such

25 disclosure; and
41

•S 854 IS

1 ‘‘(ii) the disclosure does not reveal, di2 rectly or indirectly, the title, description, or

3 subject matter of any library materials

4 borrowed or services utilized by the patron;

5 ‘‘(E) to any authorized person if the disclo6 sure is necessary for the retrieval of overdue li7 brary materials or the recoupment of compensa8 tion for damaged or lost library materials; or

9 ‘‘(F) pursuant to a court order, in a civil

10 proceeding upon a showing of compelling need

11 for the information that cannot be accommo12 dated by any other means, if—

13 ‘‘(i) the patron is given reasonable no14 tice, by the person seeking the disclosure,

15 of the court proceeding relevant to the

16 issuance of the court order; and

17 ‘‘(ii) the patron is afforded the oppor18 tunity to appear and contest the claim of

19 the person seeking the disclosure.

20 ‘‘(3) SAFEGUARDS.—If an order is granted pur21 suant to subparagraph (C) or (F) of paragraph (2),

22 the court shall impose appropriate safeguards

23 against unauthorized disclosure.

24 ‘‘(4) COURT ORDERS.—A court order author25 izing disclosure under paragraph (2)(C) shall issue
42

•S 854 IS

1 only with prior notice to the patron and only if the

2 law enforcement agency shows that there is probable

3 cause to believe that a person has engaged, is engag4 ing or is about to engage in criminal activity and

5 that the records or other information sought are ma6 terial to the investigation of such activity. In the

7 case of a State government authority, such a court

8 order shall not issue if prohibited by the law of such

9 State. A court issuing an order pursuant to this sub10 section, on a motion made promptly by the library,

11 may quash or modify such order if the information

12 or records requested are unreasonably voluminous in

13 nature or if compliance with such order otherwise

14 would cause an unreasonable burden on the li15 brary.’’.

16 (b) CLERICAL AMENDMENT.—The item relating to

17 section 2701 in the analysis for chapter 121 of title 18,

18 United States Code, is amended to read as follows:

‘‘2710. Wrongful disclosure of video tape rental or sale records and library loan

and book sale records.’’.
43

•S 854 IS

1 TITLE IV—PRIVACY PROTEC2 TION FOR SATELLITE HOME

3 VIEWERS

4 SEC. 401. PRIVACY PROTECTION FOR SUBSCRIBERS OF

5 SATELLITE TELEVISION SERVICES FOR PRI6 VATE HOME VIEWING.

7 (a) IN GENERAL.—Section 631 of the Communica8 tions Act of 1934 (47 U.S.C. 551) is amended to read

9 as follows:

10 ‘‘SEC. 631. PRIVACY OF SUBSCRIBER INFORMATION FOR

11 SUBSCRIBERS OF CABLE SERVICE AND SAT12 ELLITE TELEVISION SERVICE.

13 ‘‘(a) NOTICE TO SUBSCRIBERS REGARDING PERSON14 ALLY IDENTIFIABLE INFORMATION.—At the time of en15 tering into an agreement to provide any cable service, sat16 ellite home viewing service, or other service to a sub17 scriber, and not less often than annually thereafter, a

18 cable operator, satellite carrier, or distributor shall provide

19 notice in the form of a separate, written statement to such

20 subscriber that clearly and conspicuously informs the sub21 scriber of—

22 ‘‘(1) the nature of personally identifiable infor23 mation collected or to be collected with respect to

24 the subscriber as a result of the provision of such
44

•S 854 IS

1 service and the nature of the use of such informa2 tion;

3 ‘‘(2) the nature, frequency, and purpose of any

4 disclosure that may be made of such information, in5 cluding an identification of the types of persons to

6 whom the disclosure may be made;

7 ‘‘(3) the period during which such information

8 will be maintained by the cable operator, satellite

9 carrier, or distributor;

10 ‘‘(4) the times and place at which the sub11 scriber may have access to such information in ac12 cordance with subsection (d); and

13 ‘‘(5) the limitations provided by this section

14 with respect to the collection and disclosure of infor15 mation by the cable operator, satellite carrier, or dis16 tributor and the right of the subscriber under this

17 section to enforce such limitations.

18 ‘‘(b) COLLECTION OF PERSONALLY IDENTIFIABLE

19 INFORMATION.—

20 ‘‘(1) IN GENERAL.—Except as provided in para21 graph (2), a cable operator, satellite carrier, or dis22 tributor shall not use its cable or satellite system to

23 collect personally identifiable information concerning

24 any subscriber without the prior written or electronic

25 consent of the subscriber.
45

•S 854 IS

1 ‘‘(2) EXCEPTION.—A cable operator, satellite

2 carrier, or distributor may use its cable or satellite

3 system to collect information described in paragraph

4 (1) in order to—

5 ‘‘(A) obtain information necessary to

6 render a cable or satellite service or other serv7 ice provided by the cable operator, satellite car8 rier, or distributor to the subscriber; or

9 ‘‘(B) detect unauthorized reception of cable

10 or satellite communications.

11 ‘‘(c) DISCLOSURE OF PERSONALLY IDENTIFIABLE

12 INFORMATION.—

13 ‘‘(1) IN GENERAL.—Except as provided in para14 graph (2), a cable operator, satellite carrier, or dis15 tributor may not disclose personally identifiable in16 formation concerning any subscriber without the

17 prior written or electronic consent of the subscriber

18 and shall take such actions as are necessary to pre19 vent unauthorized access to such information by a

20 person other than the subscriber or the cable oper21 ator, satellite carrier, or distributor.

22 ‘‘(2) EXCEPTIONS.—A cable operator, satellite

23 carrier, or distributor may disclose information de24 scribed in paragraph (1) if the disclosure is—
46

•S 854 IS

1 ‘‘(A) necessary to render, or conduct a le2 gitimate business activity related to, a cable or

3 satellite service or other service provided by the

4 cable operator, satellite carrier, or distributor to

5 the subscriber;

6 ‘‘(B) subject to paragraph (3), made pur7 suant to a court order authorizing such disclo8 sure, if the subscriber is notified of such order

9 by the person to whom the order is directed; or

10 ‘‘(C) a disclosure of the names and ad11 dresses of subscribers to any other provider of

12 cable or satellite service or other service, if—

13 ‘‘(i) the cable operator, satellite car14 rier, or distributor has provided the sub15 scriber the opportunity to prohibit or limit

16 such disclosure; and

17 ‘‘(ii) the disclosure does not reveal, di18 rectly or indirectly—

19 ‘‘(I) the extent of any viewing or

20 other use by the subscriber of a cable

21 or satellite service or other service

22 provided by the cable operator, sat23 ellite carrier, or distributor; or

24 ‘‘(II) the nature of any trans25 action made by the subscriber over
47

•S 854 IS

1 the cable or satellite system of the

2 cable operator, satellite carrier, or dis3 tributor.

4 ‘‘(3) COURT ORDERS.—A governmental entity

5 may obtain personally identifiable information con6 cerning a cable or satellite subscriber pursuant to a

7 court order only if, in the court proceeding relevant

8 to such court order—

9 ‘‘(A) such entity offers clear and con10 vincing evidence that the subject of the infor11 mation is reasonably suspected of engaging in

12 criminal activity and that the information

13 sought would be material evidence in the case;

14 and

15 ‘‘(B) the subject of the information is af16 forded the opportunity to appear and contest

17 such entity’s claim.

18 ‘‘(d) SUBSCRIBER ACCESS TO INFORMATION.—A

19 cable or satellite subscriber shall be provided access to all

20 personally identifiable information regarding that sub21 scriber that is collected and maintained by a cable oper22 ator, satellite carrier, or distributor. Such information

23 shall be made available to the subscriber at reasonable

24 times and at a convenient place designated by such cable

25 operator, satellite carrier, or distributor. A cable or sat-
48

•S 854 IS

1 ellite subscriber shall be provided reasonable opportunity

2 to correct any error in such information.

3 ‘‘(e) DESTRUCTION OF INFORMATION.—A cable oper4 ator, satellite carrier, or distributor shall destroy person5 ally identifiable information if the information is no longer

6 necessary for the purpose for which it was collected and

7 there are no pending requests or orders for access to such

8 information under subsection (d) or pursuant to a court

9 order.

10 ‘‘(f) RELIEF.—

11 ‘‘(1) IN GENERAL.—Any person aggrieved by

12 any act of a cable operator, satellite carrier, or dis13 tributor in violation of this section may bring a civil

14 action in a district court of the United States.

15 ‘‘(2) DAMAGES AND COSTS.—In any action

16 brought under paragraph (1), the court may award

17 a prevailing plaintiff—

18 ‘‘(A) actual damages but not less than liq19 uidated damages computed at the rate of $100

20 a day for each day of violation or $1,000,

21 whichever is greater;

22 ‘‘(B) punitive damages; and

23 ‘‘(C) reasonable attorneys’ fees and other

24 litigation costs reasonably incurred.
49

•S 854 IS

1 ‘‘(3) NO EFFECT ON OTHER REMEDIES.—The

2 remedy provided by this subsection shall be in addi3 tion to any other remedy available under any provi4 sion of law to a cable or satellite subscriber.

5 ‘‘(g) DEFINITIONS.—In this section:

6 ‘‘(1) DISTRIBUTOR.—The term ‘distributor’ has

7 the meaning given that term in section 119(d)(1) of

8 title 17, United States Code.

9 ‘‘(2) CABLE OPERATOR.—

10 ‘‘(A) IN GENERAL.—The term ‘cable oper11 ator’ has the meaning given that term in sec12 tion 602.

13 ‘‘(B) INCLUSION.—The term includes any

14 person who—

15 ‘‘(i) is owned or controlled by, or

16 under common ownership or control with,

17 a cable operator; and

18 ‘‘(ii) provides any wire or radio com19 munications service.

20 ‘‘(3) OTHER SERVICE.—The term ‘other serv21 ice’ includes any wire, electronic, or radio commu22 nications service provided using any of the facilities

23 of a cable operator, satellite carrier, or distributor

24 that are used in the provision of cable service or sat25 ellite home viewing service.
50

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1 ‘‘(4) PERSONALLY IDENTIFIABLE INFORMA2 TION.—The term ‘personally identifiable informa3 tion’ does not include any record of aggregate data

4 that does not identify particular persons.

5 ‘‘(5) SATELLITE CARRIER.—The term ‘satellite

6 carrier’ has the meaning given that term in section

7 119(d)(6) of title 17, United States Code.’’.

8 (b) NOTICE WITH RESPECT TO CERTAIN AGREE9 MENTS.—

10 (1) IN GENERAL.—Except as provided in para11 graph (2), a cable operator, satellite carrier, or dis12 tributor who has entered into agreements referred to

13 in section 631(a) of the Communications Act of

14 1934, as amended by subsection (a), before the date

15 of enactment of this Act, shall provide any notice re16 quired under that section, as so amended, to sub17 scribers under such agreements not later than 180

18 days after that date.

19 (2) EXCEPTION.—Paragraph (1) shall not

20 apply with respect to any agreement under which a

21 cable operator, satellite carrier, or distributor was

22 providing notice under section 631(a) of the Com23 munications Act of 1934, as in effect on the day be-
51

•S 854 IS

1 fore the date of enactment of this Act, as of such

2 date.

Æ