II 

113TH CONGRESS 

2D SESSION S. 2871 

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

from improper government access, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 18, 2014 

Mr. HATCH (for himself, Mr. COONS, and Mr. HELLER) 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 safeguard data 

stored abroad from improper government access, 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 ‘‘The Law Enforcement 

5 Access to Data Stored Abroad Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) The Electronic Communications Privacy Act 

9 of 1986 (Public Law 99–508; 100 Stat. 1848) (reVerDate Sep 11 2014 00:36 Oct 01, 2014 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2871.IS S2871

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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) It has been well established that courts in 

16 the United States lack the power to issue warrants 

17 authorizing extraterritorial searches and seizures, 

18 and neither ECPA nor subsequent amendments ex19 tended the warrant power of courts in the United 

20 States beyond the territorial reach of the United 

21 States. 

22 (4) Nevertheless, Congress also recognizes the 

23 legitimate needs of law enforcement agencies in the 

24 United States to obtain, through lawful process, 

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1 tigations related to United States persons wherever 

2 that content may be stored. Therefore, this Act au3 thorizes the use of search warrants extraterritorially 

4 only where the Government seeks to obtain the con5 tents of electronic communications belonging to a 

6 United States person. 

7 SEC. 3. SCOPE AND CLARIFICATION OF WARRANT RE8 QUIREMENT. 

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

10 States Code, is amended— 

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

12 (3) to read as follows: 

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

14 electronic communication service to the public shall 

15 not knowingly divulge to any governmental entity 

16 the contents of any communication described in sec17 tion 2703(a), or any record or other information 

18 pertaining to a subscriber or customer of such serv19 ice.’’; 

20 (2) in section 2703— 

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

22 inserting the following: 

23 ‘‘(a) CONTENTS OF WIRE OR ELECTRONIC COMMU24 NICATION IN ELECTRONIC STORAGE.—A governmental 

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1 tronic communication service or remote computing service 

2 of the contents of a wire or electronic communication that 

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

4 maintained by the provider only pursuant to a warrant 

5 issued using the procedures described in the Federal Rules 

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

7 issued using State warrant procedures) by a court of com8 petent jurisdiction. Subject to subsection (b), a warrant 

9 issued pursuant to this subsection may be used to require 

10 the disclosure of contents of a wire or electronic commu11 nication that are in the provider’s electronic storage within 

12 the United States or otherwise stored, held, or maintained 

13 within the United States by the provider. 

14 ‘‘(b) WARRANT REQUIREMENTS.—A warrant issued 

15 under subsection (a) may require the disclosure of the con16 tents of a wire or electronic communication, regardless of 

17 where such contents may be in electronic storage or other18 wise stored, held, or maintained by the provider, if the 

19 account-holder whose contents are sought by the warrant 

20 is a United States person. A court issuing a warrant pur21 suant to this subsection, on a motion made promptly by 

22 the service provider, shall modify or vacate such warrant 

23 if the court finds that the warrant would require the pro24 vider of an electronic communications or remote com25 puting service to violate the laws of a foreign country.’’; 


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1 (B) in subsection (d), in the first sen2 tence— 

3 (i) by striking ‘‘(b) or’’; 

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

5 or electronic communication, or’’; and 

6 (iii) by striking ‘‘sought, are’’ and in7 serting ‘‘sought are’’; and 

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

9 ‘‘(h) RULE OF CONSTRUCTION.—Nothing in this sec10 tion or in section 2702 shall be construed to limit the au11 thority of a governmental entity to use an administrative 

12 subpoena authorized under a Federal or State statute or 

13 to use a Federal or State grand jury, trial, or civil dis14 covery subpoena to— 

15 ‘‘(1) require an originator, addressee, or in16 tended recipient of an electronic communication to 

17 disclose the contents of the electronic communication 

18 to the governmental entity; or 

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

20 communication services to the officers, directors, em21 ployees, or agents of the entity (for the purpose of 

22 carrying out their duties) to disclose the contents of 

23 an electronic communication to or from an officer, 

24 director, employee, or agent of the entity to a gov25 ernmental entity, if the electronic communication is 


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1 held, stored, or maintained on an electronic commu2 nications system owned or operated by the entity. 

3 ‘‘(i) NOTICE.—Except as provided in section 2705, 

4 not later than 10 business days after a governmental enti5 ty receives the contents of a wire or electronic communica6 tion of a subscriber or customer from a provider of elec7 tronic communication service or remote computing service 

8 under subsection (a), the governmental entity shall serve 

9 upon, or deliver to by registered or first-class mail, elec10 tronic mail, or other means reasonably calculated to be 

11 effective, as specified by the court issuing the warrant, the 

12 subscriber or customer— 

13 ‘‘(1) a copy of the warrant; and 

14 ‘‘(2) notice that informs the customer or sub15 scriber— 

16 ‘‘(A) of the nature of the law enforcement 

17 inquiry with reasonable specificity; and 

18 ‘‘(B) that information maintained for the 

19 customer or subscriber by the provider of elec20 tronic communication service or remote com21 puting service named in the process or request 

22 was supplied to, or requested by, the govern23 mental entity.’’; 

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

25 2703(b)(2)’’ and inserting ‘‘section 2703’’; 


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1 (4) in section 2705— 

2 (A) in subsection (a), by striking para3 graph (1) and inserting the following: 

4 ‘‘(1) A governmental entity that is seeking a 

5 warrant under section 2703 may include in the ap6 plication for the warrant a request, which the court 

7 shall grant, for an order delaying the notification re8 quired under section 2703(i) for a period of not 

9 more than 90 days, if the court determines that 

10 there is reason to believe that notification of the ex11 istence of the warrant may have an adverse result 

12 described in paragraph (2) of this subsection.’’; and 

13 (B) in subsection (b), in the matter pre14 ceding paragraph (1), by striking ‘‘under sec15 tion 2703(b)(1)’’; and 

16 (5) in section 2711— 

17 (A) in paragraph (3)(B) by striking ‘‘war18 rants; and’’ and inserting ‘‘warrants’’; 

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

20 and inserting ‘‘thereof; and’’; and 

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

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

23 citizen or permanent resident alien of the United 

24 States, or an entity or organization organized under 


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1 the laws of the United States or a State or political 

2 subdivision thereof.’’. 

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; and 

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. 

23 (2) ANNUAL PUBLICATION.—Beginning not 

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

25 Act, and each year thereafter, the Attorney General 


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1 shall publish on the website of the Department of 

2 Justice statistics on— 

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

4 by the Department of Justice to foreign govern5 ments for the purpose of obtaining the contents 

6 of an electronic communication or other infor7 mation or records from a provider of electronic 

8 communications or remote computing services; 

9 and 

10 (ii) the average length of time taken by 

11 foreign governments to process the MLAT re12 quests described in clause (i); and 

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

14 to the Department of Justice by foreign govern15 ments for the purpose of obtaining the contents 

16 of an electronic communication or other infor17 mation or records from a provider of electronic 

18 communications or remote computing services; 

19 and 

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

21 Department of Justice to process the MLAT re22 quests described in clause (i). 

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

24 Attorney General shall notify the Secretary of State 

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1 sure of electronic communications content to a for2 eign government is made pursuant to an MLAT re3 quest. 

4 (b) PRESERVATION OF RECORDS.—The Attorney 

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

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

7 request that appears to be facially valid. 

8 (c) NOTIFICATION TO PROVIDER OF MLAT RE9 QUEST.—When the Attorney General makes use of the 

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

11 Code, to obtain information from an electronic commu12 nications provider or a remote computing provider based 

13 on an MLAT request, the Attorney General shall notify 

14 that provider in writing that the request has been made 

15 pursuant to a mutual legal assistance treaty. 

16 SEC. 5. SENSE OF CONGRESS. 

17 It is the sense of Congress that— 

18 (1) data localization requirements imposed by 

19 foreign governments on data providers are— 

20 (A) incompatible with the borderless na21 ture of the Internet; 

22 (B) an impediment to online innovation; 

23 and 

24 (C) unnecessary to meet the needs of law 

25 enforcement; and 


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1 (2) the Department of Justice, the Department 

2 of State, and the United States Trade Representa3 tives should pursue open data flow policies with for4 eign nations. 

Æ 


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