I 

114TH CONGRESS 

2D SESSION H. R. 5323 

To amend title 18, United States Code, to safeguard data stored abroad, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 25, 2016 

Mr. MARINO (for himself and Ms. DELBENE) introduced the following bill; 

which was referred to the Committee on the Judiciary 

A BILL 

To amend title 18, United States Code, to safeguard data 

stored abroad, 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 ‘‘International Commu5 nications Privacy Act’’. 

6 SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF 

7 PURPOSE. 

8 Congress finds the following: 

9 (1) The Electronic Communications Privacy Act 

10 of 1986 (Public Law 99–508; 100 Stat. 1848) (reVerDate Sep 11 2014 22:13 May 27, 2016 Jkt 059200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5323.IH H5323

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1 ferred to in this section as ‘‘ECPA’’) was intended 

2 to protect the privacy of electronic communications 

3 stored with providers of electronic communications 

4 services and remote computing services, while bal5 ancing the legitimate needs of law enforcement to 

6 access records stored by such providers. 

7 (2) To strike this balance, ECPA authorized 

8 governmental entities to obtain certain categories of 

9 communications data from providers using estab10 lished, pre-existing forms of process warrants and 

11 subpoenas. It also created a new form of court 

12 order, in section 2703(d) of title 18, United States 

13 Code, that governmental entities could use to obtain 

14 additional types of communications data. 

15 (3) Congress recognizes the legitimate needs of 

16 law enforcement agencies in the United States to ob17 tain, through lawful process, electronic communica18 tions relevant to criminal investigations, as well as 

19 the privacy interests of citizens of foreign countries. 

20 Therefore, where the Government seeks to obtain 

21 the contents of electronic communications of foreign 

22 citizens located outside of the United States, this 

23 Act authorizes the use of search warrants only if the 

24 foreign government does not have a Law Enforce25 ment Cooperation Agreement with the United States 


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1 or, if it does have such a Law Enforcement Coopera2 tion Agreement, the foreign government does not ob3 ject to disclosure. 

4 SEC. 3. EXTENSION AND CLARIFICATION OF WARRANT RE5 QUIREMENT. 

6 (a) IN GENERAL.—Chapter 121 of title 18, United 

7 States Code, is amended— 

8 (1) in section 2702(a), by amending paragraph 

9 (3) to read as follows: 

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

11 electronic communication service to the public shall 

12 not knowingly divulge to any governmental entity 

13 the contents of any communication described in sec14 tion 2703(a), or any record or other information 

15 pertaining to a subscriber or customer of such serv16 ice.’’; 

17 (2) in section 2703— 

18 (A) by striking subsections (a) and (b) and 

19 inserting the following: 

20 ‘‘(a) CONTENTS OF WIRE OR ELECTRONIC COMMU21 NICATION IN ELECTRONIC STORAGE.—A governmental 

22 entity may require the disclosure by a provider of elec23 tronic communication service or remote computing service 

24 of the contents of a wire or electronic communication that 

25 is in electronic storage with or otherwise stored, held, or 


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1 maintained by the provider, regardless of where such con2 tents may be in electronic storage or otherwise stored, 

3 held, or maintained, only pursuant to a warrant issued 

4 using the procedures described in the Federal Rules of 

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

6 issued using State warrant procedures) by a court of com7 petent jurisdiction. An application for a warrant under 

8 this section shall include a full and complete statement 

9 of the facts and circumstances relied upon and the inves10 tigative steps taken to ascertain the nationality and loca11 tion of the subscriber or customer whose contents are 

12 sought by the warrant. Any such warrant may be used 

13 to require the disclosure of contents of a wire or electronic 

14 communication only if the court finds that— 

15 ‘‘(1) the governmental entity has taken all rea16 sonable steps to establish the nationality and loca17 tion of the subscriber or customer whose contents 

18 are sought; and 

19 ‘‘(2) at the time the warrant application is 

20 made— 

21 ‘‘(A) there are reasonable grounds to be22 lieve that the subscriber or customer whose con23 tents are sought by the warrant is— 

24 ‘‘(i) a United States person; 


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1 ‘‘(ii) physically located within the 

2 United States; 

3 ‘‘(iii) a national of or located in a for4 eign country or countries where any of 

5 those countries has an applicable Law En6 forcement Cooperation Agreement with the 

7 United States (or in the case where the 

8 warrant application is made on behalf of a 

9 foreign government pursuant to a Law En10 forcement Cooperation Agreement with the 

11 United States, any of those countries has 

12 an applicable Law Enforcement Coopera13 tion Agreement with the requesting foreign 

14 government) and the Central Authority for 

15 each such country with such a Law En16 forcement Cooperation Agreement provides 

17 written certification that the disclosure 

18 may be had or does not object to the dis19 closure within 60 days after formal sub20 mission of a request for such certification; 

21 or 

22 ‘‘(iv) a national of and located in a 

23 foreign country or countries where none of 

24 those countries have an applicable Law 

25 Enforcement Cooperation Agreement with 


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1 the United States (or in the case where the 

2 warrant application is made on behalf of a 

3 foreign government pursuant to a Law En4 forcement Cooperation Agreement with the 

5 United States, none of those countries 

6 have an applicable Law Enforcement Co7 operation Agreement with the requesting 

8 foreign government); or 

9 ‘‘(B) there are no reasonable grounds on 

10 which to base a belief as to either the nation11 ality or the location of the subscriber or cus12 tomer whose contents are sought. 

13 ‘‘(b) WARRANT REQUIREMENTS.—Upon a motion 

14 made promptly by the service provider, a court issuing a 

15 warrant under this section shall modify or vacate such 

16 warrant if— 

17 ‘‘(1) the court finds that the warrant does not 

18 meet the requirements of this section or is otherwise 

19 unlawful; or 

20 ‘‘(2) the service provider presents additional in21 formation about the subscriber’s or customer’s phys22 ical location, status as a United States person, or 

23 status as a national of a foreign country that would 

24 cause the court to find that the warrant application 


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1 would not comply with the requirements of this sec2 tion.’’; 

3 (B) in subsection (d), in the first sen4 tence— 

5 (i) by striking ‘‘(b) or’’; 

6 (ii) by striking ‘‘the contents of a wire 

7 or electronic communication, or’’; and 

8 (iii) by striking ‘‘sought, are’’ and in9 serting ‘‘sought are’’; and 

10 (C) by adding at the end the following: 

11 ‘‘(h) RULE OF CONSTRUCTION.—Nothing in this sec12 tion or in section 2702 shall be construed to limit the au13 thority of a governmental entity to use an administrative 

14 subpoena authorized under a Federal or State statute or 

15 to use a Federal or State grand jury, trial, or civil dis16 covery subpoena to— 

17 ‘‘(1) require an originator, addressee, or in18 tended recipient of an electronic communication to 

19 disclose the contents of the electronic communication 

20 to the governmental entity; or 

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

22 communication services to the officers, directors, em23 ployees, or agents of the entity (for the purpose of 

24 carrying out their duties) to disclose the contents of 

25 an electronic communication to or from an officer, 


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1 director, employee, or agent of the entity to a gov2 ernmental entity, if the electronic communication is 

3 held, stored, or maintained on an electronic commu4 nications system owned or operated by the entity.’’; 

5 (3) in section 2704(a)(1), by striking ‘‘section 

6 2703(b)(2)’’ and inserting ‘‘section 2703’’; and 

7 (4) in section 2711— 

8 (A) in paragraph (3)(B) by striking ‘‘war9 rants; and’’ and inserting ‘‘warrants;’’; 

10 (B) in paragraph (4) by striking ‘‘thereof.’’ 

11 and inserting ‘‘thereof;’’; and 

12 (C) by adding at the end the following: 

13 ‘‘(5) the term ‘United States person’ means a 

14 citizen of the United States or an alien lawfully ad15 mitted for permanent residence (as defined in sec16 tion 101(a) of the Immigration and Nationality Act 

17 (8 U.S.C. 1101(a))); 

18 ‘‘(6) the term ‘Law Enforcement Cooperation 

19 Agreement’ means— 

20 ‘‘(A) a mutual legal assistance treaty, mu21 tual legal assistance agreement, adherence to 

22 the Convention on Cybercrime, signed Novem23 ber 21, 2001; or 

24 ‘‘(B) an executive agreement or treaty be25 tween the United States and one or more counVerDate Sep 11 2014 22:13 May 27, 2016 Jkt 059200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5323.IH H5323

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1 tries designed to establish a reciprocal process 

2 for notifying and obtaining the consent of the 

3 other country or countries in order to obtain 

4 the contents of electronic communication pursu5 ant to section 2703(a)(1)(A)(iii), provided that 

6 the Attorney General shall maintain a list of 

7 countries with which the United States has 

8 such agreements and shall submit such list, as 

9 and when amended, to the Committees on the 

10 Judiciary and Foreign Relations of the United 

11 States Senate and the Committees on the Judi12 ciary and Foreign Affairs of the United States 

13 House of Representatives, and shall make it 

14 available to the public; 

15 ‘‘(7) the term ‘Central Authority’ means the 

16 agency, department, office, or authority of a country 

17 responsible for administering a particular Law En18 forcement Cooperation Agreement between that 

19 country and another; and 

20 ‘‘(8) the term ‘national of a foreign country’ 

21 means a citizen, a lawful resident, or an entity orga22 nized under the laws of a foreign jurisdiction.’’. 

23 (b) RULE OF CONSTRUCTION.—Nothing in this Act 

24 or the amendments made by this Act shall be construed 


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1 to expand the investigative authority of any governmental 

2 entity. 

3 SEC. 4. MUTUAL LEGAL ASSISTANCE TREATY REFORMS. 

4 (a) MUTUAL LEGAL ASSISTANCE TREATY TRANS5 PARENCY AND EFFICIENCY.— 

6 (1) IN GENERAL.—Not later than 180 days 

7 after the date of enactment of this Act, the Attorney 

8 General shall establish— 

9 (A) a form for use by a foreign govern10 ment filing a mutual legal assistance treaty re11 quest (referred to in this section as an ‘‘MLAT 

12 request’’), which shall— 

13 (i) be made available on the website of 

14 the Department of Justice; and 

15 (ii) require sufficient information and 

16 be susceptible for use by a foreign govern17 ment to provide all the information nec18 essary for the MLAT request; 

19 (B) an online docketing system for all 

20 MLAT requests, which shall allow a foreign 

21 government to track the status of an MLAT re22 quest filed by the foreign government; and 

23 (C) a process through which certified ap24 proval may be sought for disclosure pursuant to 

25 warrants issued under section 2703(a). 


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1 (2) ANNUAL PUBLICATION.—Beginning not 

2 later than 1 year after the date of enactment of this 

3 Act, and each year thereafter, the Attorney General 

4 shall publish on the website of the Department of 

5 Justice statistics on— 

6 (A)(i) the number of MLAT requests made 

7 by the Department of Justice to foreign govern8 ments for the purpose of obtaining the contents 

9 of an electronic communication or other infor10 mation or records from a provider of electronic 

11 communications or remote computing services; 

12 and 

13 (ii) the average length of time taken by 

14 foreign governments to process the MLAT re15 quests described in clause (i); and 

16 (B)(i) the number of MLAT requests made 

17 to the Department of Justice by foreign govern18 ments for the purpose of obtaining the contents 

19 of an electronic communication or other infor20 mation or records from a provider of electronic 

21 communications or remote computing services; 

22 and 

23 (ii) the average length of time taken by the 

24 Department of Justice to process the MLAT re25 quests described in clause (i). 


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1 (3) NOTICE TO DEPARTMENT OF STATE.—The 

2 Attorney General shall notify the Secretary of State 

3 not later than 7 days after the date on which disclo4 sure of electronic communications content to a for5 eign government is made pursuant to an MLAT re6 quest. 

7 (b) PRESERVATION OF RECORDS.—The Attorney 

8 General may issue a request pursuant to section 2703(f) 

9 of title 18, United States Code, upon receipt of an MLAT 

10 request that appears to be facially valid. 

11 (c) NOTIFICATION TO PROVIDER OF MLAT RE12 QUEST.—When the Attorney General makes use of the 

13 process provided in section 2703 of title 18, United States 

14 Code, to obtain information from an electronic commu15 nications provider or a remote computing provider based 

16 on an MLAT request, the Attorney General shall notify 

17 that provider in writing that the request has been made 

18 pursuant to a mutual legal assistance treaty. 

19 SEC. 5. SENSE OF CONGRESS. 

20 It is the sense of Congress that— 

21 (1) data localization requirements imposed by 

22 foreign governments on data providers are— 

23 (A) incompatible with the borderless na24 ture of the Internet; 


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1 (B) an impediment to online innovation; 

2 and 

3 (C) unnecessary to meet the needs of law 

4 enforcement; and 

5 (2) the Department of Justice, the Department 

6 of State, and the United States Trade Representa7 tives should pursue open data flow policies with for8 eign nations. 

Æ 


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