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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2871 Introduced in Senate (IS)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``The Law Enforcement Access to Data 
Stored Abroad Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The Electronic Communications Privacy Act of 1986 
        (Public Law 99-508; 100 Stat. 1848) (referred to in this 
        section as ``ECPA'') was intended to protect the privacy of 
        electronic communications stored with providers of electronic 
        communications services and remote computing services, while 
        balancing the legitimate needs of law enforcement to access 
        records stored by such providers.
            (2) To strike this balance, ECPA authorized governmental 
        entities to obtain certain categories of communications data 
        from providers using established, pre-existing forms of 
        process--warrants and subpoenas. It also created a new form of 
        court order, in section 2703(d) of title 18, United States 
        Code, that governmental entities could use to obtain additional 
        types of communications data.
            (3) It has been well established that courts in the United 
        States lack the power to issue warrants authorizing 
        extraterritorial searches and seizures, and neither ECPA nor 
        subsequent amendments extended the warrant power of courts in 
        the United States beyond the territorial reach of the United 
        States.
            (4) Nevertheless, Congress also recognizes the legitimate 
        needs of law enforcement agencies in the United States to 
        obtain, through lawful process, electronic communications 
        relevant to criminal investigations related to United States 
        persons wherever that content may be stored. Therefore, this 
        Act authorizes the use of search warrants extraterritorially 
        only where the Government seeks to obtain the contents of 
        electronic communications belonging to a United States person.

SEC. 3. SCOPE AND CLARIFICATION OF WARRANT REQUIREMENT.

    (a) In General.--Chapter 121 of title 18, United States Code, is 
amended--
            (1) in section 2702(a), by amending paragraph (3) to read 
        as follows:
            ``(3) a provider of remote computing service or electronic 
        communication service to the public shall not knowingly divulge 
        to any governmental entity the contents of any communication 
        described in section 2703(a), or any record or other 
        information pertaining to a subscriber or customer of such 
        service.'';
            (2) in section 2703--
                    (A) by striking subsections (a) and (b) and 
                inserting the following:
    ``(a) Contents of Wire or Electronic Communication in Electronic 
Storage.--A governmental entity may require the disclosure by a 
provider of electronic communication service or remote computing 
service of the contents of a wire or electronic communication that is 
in electronic storage with or otherwise stored, held, or maintained by 
the provider only pursuant to a warrant issued using the procedures 
described in the Federal Rules of Criminal Procedure (or, in the case 
of a State court, issued using State warrant procedures) by a court of 
competent jurisdiction. Subject to subsection (b), a warrant issued 
pursuant to this subsection may be used to require the disclosure of 
contents of a wire or electronic communication that are in the 
provider's electronic storage within the United States or otherwise 
stored, held, or maintained within the United States by the provider.
    ``(b) Warrant Requirements.--A warrant issued under subsection (a) 
may require the disclosure of the contents of a wire or electronic 
communication, regardless of where such contents may be in electronic 
storage or otherwise stored, held, or maintained by the provider, if 
the account-holder whose contents are sought by the warrant is a United 
States person. A court issuing a warrant pursuant to this subsection, 
on a motion made promptly by the service provider, shall modify or 
vacate such warrant if the court finds that the warrant would require 
the provider of an electronic communications or remote computing 
service to violate the laws of a foreign country.'';
                    (B) in subsection (d), in the first sentence--
                            (i) by striking ``(b) or'';
                            (ii) by striking ``the contents of a wire 
                        or electronic communication, or''; and
                            (iii) by striking ``sought, are'' and 
                        inserting ``sought are''; and
                    (C) by adding at the end the following:
    ``(h) Rule of Construction.--Nothing in this section or in section 
2702 shall be construed to limit the authority of a governmental entity 
to use an administrative subpoena authorized under a Federal or State 
statute or to use a Federal or State grand jury, trial, or civil 
discovery subpoena to--
            ``(1) require an originator, addressee, or intended 
        recipient of an electronic communication to disclose the 
        contents of the electronic communication to the governmental 
        entity; or
            ``(2) require an entity that provides electronic 
        communication services to the officers, directors, employees, 
        or agents of the entity (for the purpose of carrying out their 
        duties) to disclose the contents of an electronic communication 
        to or from an officer, director, employee, or agent of the 
        entity to a governmental entity, if the electronic 
        communication is held, stored, or maintained on an electronic 
        communications system owned or operated by the entity.
    ``(i) Notice.--Except as provided in section 2705, not later than 
10 business days after a governmental entity receives the contents of a 
wire or electronic communication of a subscriber or customer from a 
provider of electronic communication service or remote computing 
service under subsection (a), the governmental entity shall serve upon, 
or deliver to by registered or first-class mail, electronic mail, or 
other means reasonably calculated to be effective, as specified by the 
court issuing the warrant, the subscriber or customer--
            ``(1) a copy of the warrant; and
            ``(2) notice that informs the customer or subscriber--
                    ``(A) of the nature of the law enforcement inquiry 
                with reasonable specificity; and
                    ``(B) that information maintained for the customer 
                or subscriber by the provider of electronic 
                communication service or remote computing service named 
                in the process or request was supplied to, or requested 
                by, the governmental entity.'';
            (3) in section 2704(a)(1), by striking ``section 
        2703(b)(2)'' and inserting ``section 2703'';
            (4) in section 2705--
                    (A) in subsection (a), by striking paragraph (1) 
                and inserting the following:
            ``(1) A governmental entity that is seeking a warrant under 
        section 2703 may include in the application for the warrant a 
        request, which the court shall grant, for an order delaying the 
        notification required under section 2703(i) for a period of not 
        more than 90 days, if the court determines that there is reason 
        to believe that notification of the existence of the warrant 
        may have an adverse result described in paragraph (2) of this 
        subsection.''; and
                    (B) in subsection (b), in the matter preceding 
                paragraph (1), by striking ``under section 
                2703(b)(1)''; and
            (5) in section 2711--
                    (A) in paragraph (3)(B) by striking ``warrants; 
                and'' and inserting ``warrants'';
                    (B) in paragraph (4) by striking ``thereof.'' and 
                inserting ``thereof; and''; and
                    (C) by adding at the end the following:
            ``(5) the term `United States person' means a citizen or 
        permanent resident alien of the United States, or an entity or 
        organization organized under the laws of the United States or a 
        State or political subdivision thereof.''.

SEC. 4. MUTUAL LEGAL ASSISTANCE TREATY REFORMS.

    (a) Mutual Legal Assistance Treaty Transparency and Efficiency.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Attorney General shall establish--
                    (A) a form for use by a foreign government filing a 
                mutual legal assistance treaty request (referred to in 
                this section as an ``MLAT request''), which shall--
                            (i) be made available on the website of the 
                        Department of Justice; and
                            (ii) require sufficient information and be 
                        susceptible for use by a foreign government to 
                        provide all the information necessary for the 
                        MLAT request; and
                    (B) an online docketing system for all MLAT 
                requests, which shall allow a foreign government to 
                track the status of an MLAT request filed by the 
                foreign government.
            (2) Annual publication.--Beginning not later than 1 year 
        after the date of enactment of this Act, and each year 
        thereafter, the Attorney General shall publish on the website 
        of the Department of Justice statistics on--
                    (A)(i) the number of MLAT requests made by the 
                Department of Justice to foreign governments for the 
                purpose of obtaining the contents of an electronic 
                communication or other information or records from a 
                provider of electronic communications or remote 
                computing services; and
                    (ii) the average length of time taken by foreign 
                governments to process the MLAT requests described in 
                clause (i); and
                    (B)(i) the number of MLAT requests made to the 
                Department of Justice by foreign governments for the 
                purpose of obtaining the contents of an electronic 
                communication or other information or records from a 
                provider of electronic communications or remote 
                computing services; and
                    (ii) the average length of time taken by the 
                Department of Justice to process the MLAT requests 
                described in clause (i).
            (3) Notice to department of state.--The Attorney General 
        shall notify the Secretary of State not later than 7 days after 
        the date on which disclosure of electronic communications 
        content to a foreign government is made pursuant to an MLAT 
        request.
    (b) Preservation of Records.--The Attorney General may issue a 
request pursuant to section 2703(f) of title 18, United States Code, 
upon receipt of an MLAT request that appears to be facially valid.
    (c) Notification to Provider of MLAT Request.--When the Attorney 
General makes use of the process provided in section 2703 of title 18, 
United States Code, to obtain information from an electronic 
communications provider or a remote computing provider based on an MLAT 
request, the Attorney General shall notify that provider in writing 
that the request has been made pursuant to a mutual legal assistance 
treaty.

SEC. 5. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) data localization requirements imposed by foreign 
        governments on data providers are--
                    (A) incompatible with the borderless nature of the 
                Internet;
                    (B) an impediment to online innovation; and
                    (C) unnecessary to meet the needs of law 
                enforcement; and
            (2) the Department of Justice, the Department of State, and 
        the United States Trade Representatives should pursue open data 
        flow policies with foreign nations.
                                 <all>
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