II 

114TH CONGRESS 

1ST SESSION S. 356 

To improve the provisions relating to the privacy of electronic communications. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 4, 2015 

Mr. LEE (for himself, Mr. LEAHY, Mr. CORNYN, Mr. MORAN, Mr. GARDNER, 

Mrs. SHAHEEN, Mr. MERKLEY, and Mr. BLUMENTHAL) introduced the 

following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL 

To improve the provisions relating to the privacy of electronic 

communications. 

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 ‘‘Electronic Communica5 tions Privacy Act Amendments Act of 2015’’. 

6 SEC. 2. CONFIDENTIALITY OF ELECTRONIC COMMUNICA7 TIONS. 

8 Section 2702(a)(3) of title 18, United States Code, 

9 is amended to read as follows: 


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

2 electronic communication service to the public shall 

3 not knowingly divulge to any governmental entity 

4 the contents of any communication described in sec5 tion 2703(a), or any record or other information 

6 pertaining to a subscriber or customer of such serv7 ice.’’. 

8 SEC. 3. ELIMINATION OF 180-DAY RULE; SEARCH WARRANT 

9 REQUIREMENT; REQUIRED DISCLOSURE OF 

10 CUSTOMER RECORDS. 

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

12 States Code, is amended— 

13 (1) by striking subsections (a), (b), and (c) and 

14 inserting the following: 

15 ‘‘(a) CONTENTS OF WIRE OR ELECTRONIC COMMU16 NICATIONS.—A governmental entity may require the dis17 closure by a provider of electronic communication service 

18 or remote computing service of the contents of a wire or 

19 electronic communication that is in electronic storage with 

20 or otherwise stored, held, or maintained by the provider 

21 only if the governmental entity obtains a warrant issued 

22 using the procedures described in the Federal Rules of 

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

24 issued using State warrant procedures) that is issued by 

25 a court of competent jurisdiction directing the disclosure. 


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1 ‘‘(b) NOTICE.—Except as provided in section 2705, 

2 not later than 10 business days in the case of a law en3 forcement agency, or not later than 3 business days in 

4 the case of any other governmental entity, after a govern5 mental entity receives the contents of a wire or electronic 

6 communication of a subscriber or customer from a pro7 vider of electronic communication service or remote com8 puting service under subsection (a), the governmental en9 tity shall serve upon, or deliver to by registered or first10 class mail, electronic mail, or other means reasonably cal11 culated to be effective, as specified by the court issuing 

12 the warrant, the subscriber or customer— 

13 ‘‘(1) a copy of the warrant; and 

14 ‘‘(2) a notice that includes the information re15 ferred to in clauses (i) and (ii) of section 

16 2705(a)(4)(B). 

17 ‘‘(c) RECORDS CONCERNING ELECTRONIC COMMU18 NICATION SERVICE OR REMOTE COMPUTING SERVICE.— 

19 ‘‘(1) IN GENERAL.—Subject to paragraph (2), a 

20 governmental entity may require a provider of elec21 tronic communication service or remote computing 

22 service to disclose a record or other information per23 taining to a subscriber or customer of the provider 

24 or service (not including the contents of communica25 tions), only if the governmental entity— 


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1 ‘‘(A) obtains a warrant issued using the 

2 procedures described in the Federal Rules of 

3 Criminal Procedure (or, in the case of a State 

4 court, issued using State warrant procedures) 

5 that is issued by a court of competent jurisdic6 tion directing the disclosure; 

7 ‘‘(B) obtains a court order directing the 

8 disclosure under subsection (d); 

9 ‘‘(C) has the consent of the subscriber or 

10 customer to the disclosure; or 

11 ‘‘(D) submits a formal written request rel12 evant to a law enforcement investigation con13 cerning telemarketing fraud for the name, ad14 dress, and place of business of a subscriber or 

15 customer of the provider or service that is en16 gaged in telemarketing (as defined in section 

17 2325). 

18 ‘‘(2) INFORMATION TO BE DISCLOSED.—A pro19 vider of electronic communication service or remote 

20 computing service shall, in response to an adminis21 trative subpoena authorized by Federal or State 

22 statute, a grand jury, trial, or civil discovery sub23 poena, or any means authorized under paragraph 

24 (1), disclose to a governmental entity the— 

25 ‘‘(A) name; 


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1 ‘‘(B) address; 

2 ‘‘(C) local and long distance telephone con3 nection records, or records of session times and 

4 durations; 

5 ‘‘(D) length of service (including start 

6 date) and types of service used; 

7 ‘‘(E) telephone or instrument number or 

8 other subscriber number or identity, including 

9 any temporarily assigned network address; and 

10 ‘‘(F) means and source of payment for 

11 such service (including any credit card or bank 

12 account number), 

13 of a subscriber or customer of such service. 

14 ‘‘(3) NOTICE NOT REQUIRED.—A governmental 

15 entity that receives records or information under 

16 this subsection is not required to provide notice to 

17 a subscriber or customer.’’; and 

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

19 ‘‘(h) RULE OF CONSTRUCTION.—Nothing in this sec20 tion or in section 2702 shall be construed to limit the au21 thority of a governmental entity to use an administrative 

22 subpoena authorized under a Federal or State statute or 

23 to use a Federal or State grand jury, trial, or civil dis24 covery subpoena to— 


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1 ‘‘(1) require an originator, addressee, or in2 tended recipient of an electronic communication to 

3 disclose the contents of the electronic communication 

4 to the governmental entity; or 

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

6 communication services to the officers, directors, em7 ployees, or agents of the entity (for the purpose of 

8 carrying out their duties) to disclose the contents of 

9 an electronic communication to or from an officer, 

10 director, employee, or agent of the entity to a gov11 ernmental entity, if the electronic communication is 

12 held, stored, or maintained on an electronic commu13 nications system owned or operated by the entity.’’. 

14 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

15 Section 2703(d) of title 18, United States Code, is amend16 ed— 

17 (1) by striking ‘‘A court order for disclosure 

18 under subsection (b) or (c)’’ and inserting ‘‘A court 

19 order for disclosure under subsection (c)’’; and 

20 (2) by striking ‘‘the contents of a wire or elec21 tronic communication, or’’. 

22 SEC. 4. DELAYED NOTICE. 

23 Section 2705 of title 18, United States Code, is 

24 amended to read as follows: 


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1 ‘‘§ 2705. Delayed notice 

2 ‘‘(a) DELAY OF NOTIFICATION.— 

3 ‘‘(1) IN GENERAL.—A governmental entity that 

4 is seeking a warrant under section 2703(a) may in5 clude in the application for the warrant a request for 

6 an order delaying the notification required under 

7 section 2703(b) for a period of not more than 180 

8 days in the case of a law enforcement agency, or not 

9 more than 90 days in the case of any other govern10 mental entity. 

11 ‘‘(2) DETERMINATION.—A court shall grant a 

12 request for delayed notification made under para13 graph (1) if the court determines that there is rea14 son to believe that notification of the existence of the 

15 warrant may result in— 

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

17 of an individual; 

18 ‘‘(B) flight from prosecution; 

19 ‘‘(C) destruction of or tampering with evi20 dence; 

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

22 ‘‘(E) otherwise seriously jeopardizing an 

23 investigation or unduly delaying a trial. 

24 ‘‘(3) EXTENSION.—Upon request by a govern25 mental entity, a court may grant one or more exten26 sions of the delay of notification granted under paraVerDate Sep 11 2014 22:25 Feb 11, 2015 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S356.IS S356

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1 graph (2) of not more than 180 days in the case of 

2 a law enforcement agency, or not more than 90 days 

3 in the case of any other governmental entity. 

4 ‘‘(4) EXPIRATION OF THE DELAY OF NOTIFICA5 TION.—Upon expiration of the period of delay of no6 tification under paragraph (2) or (3), the govern7 mental entity shall serve upon, or deliver to by reg8 istered or first-class mail, electronic mail, or other 

9 means reasonably calculated to be effective as speci10 fied by the court approving the search warrant, the 

11 customer or subscriber— 

12 ‘‘(A) a copy of the warrant; and 

13 ‘‘(B) notice that informs the customer or 

14 subscriber— 

15 ‘‘(i) of the nature of the law enforce16 ment inquiry with reasonable specificity; 

17 ‘‘(ii) that information maintained for 

18 the customer or subscriber by the provider 

19 of electronic communication service or re20 mote computing service named in the proc21 ess or request was supplied to, or re22 quested by, the governmental entity; 

23 ‘‘(iii) of the date on which the warrant 

24 was served on the provider and the date on 


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1 which the information was provided by the 

2 provider to the governmental entity; 

3 ‘‘(iv) that notification of the customer 

4 or subscriber was delayed; 

5 ‘‘(v) the identity of the court author6 izing the delay; and 

7 ‘‘(vi) of the provision of this chapter 

8 under which the delay was authorized. 

9 ‘‘(b) PRECLUSION OF NOTICE TO SUBJECT OF GOV10 ERNMENTAL ACCESS.— 

11 ‘‘(1) IN GENERAL.—A governmental entity that 

12 is obtaining the contents of a communication or in13 formation or records under section 2703 may apply 

14 to a court for an order directing a provider of elec15 tronic communication service or remote computing 

16 service to which a warrant, order, subpoena, or other 

17 directive under section 2703 is directed not to notify 

18 any other person of the existence of the warrant, 

19 order, subpoena, or other directive for a period of 

20 not more than 180 days in the case of a law enforce21 ment agency, or not more than 90 days in the case 

22 of any other governmental entity. 

23 ‘‘(2) DETERMINATION.—A court shall grant a 

24 request for an order made under paragraph (1) if 

25 the court determines that there is reason to believe 


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1 that notification of the existence of the warrant, 

2 order, subpoena, or other directive may result in— 

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

4 of an individual; 

5 ‘‘(B) flight from prosecution; 

6 ‘‘(C) destruction of or tampering with evi7 dence; 

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

9 ‘‘(E) otherwise seriously jeopardizing an 

10 investigation or unduly delaying a trial. 

11 ‘‘(3) EXTENSION.—Upon request by a govern12 mental entity, a court may grant one or more exten13 sions of an order granted under paragraph (2) of 

14 not more than 180 days in the case of a law enforce15 ment agency, or not more than 90 days in the case 

16 of any other governmental entity. 

17 ‘‘(4) PRIOR NOTICE TO LAW ENFORCEMENT.— 

18 Upon expiration of the period of delay of notice 

19 under this section, and not later than 3 business 

20 days before providing notice to a customer or sub21 scriber, a provider of electronic communication serv22 ice or remote computing service shall notify the gov23 ernmental entity that obtained the contents of a 

24 communication or information or records under sec25 tion 2703 of the intent of the provider of electronic 


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1 communication service or remote computing service 

2 to notify the customer or subscriber of the existence 

3 of the warrant, order, or subpoena seeking that in4 formation. 

5 ‘‘(c) DEFINITION.—In this section and section 2703, 

6 the term ‘law enforcement agency’ means an agency of the 

7 United States, a State, or a political subdivision of a 

8 State, authorized by law or by a government agency to 

9 engage in or supervise the prevention, detection, investiga10 tion, or prosecution of any violation of criminal law, or 

11 any other Federal or State agency conducting a criminal 

12 investigation.’’. 

13 SEC. 5. EVALUATION BY THE GOVERNMENT ACCOUNT14 ABILITY OFFICE. 

15 Not later than September 30, 2017, the Comptroller 

16 General of the United States shall submit to Congress a 

17 report regarding the disclosure of customer communica18 tions and records under section 2703 of title 18, United 

19 States Code, which shall include— 

20 (1) an analysis and evaluation of such disclo21 sure under section 2703 of title 18, United States 

22 Code, as in effect before the date of enactment of 

23 this Act, including— 

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1 stances, in each of the 5 years before the year 

2 in which this Act is enacted, in which Federal, 

3 State, or local law enforcement officers used 

4 section 2703 of title 18, United States Code, to 

5 obtain information relevant to an ongoing 

6 criminal investigation; 

7 (B) an analysis of the average length of 

8 time taken by a provider of an electronic com9 munication service or a remote computing serv10 ice to comply with requests by law enforcement 

11 officers for information under section 2703 of 

12 title 18, United States Code; 

13 (C) the number of individual instances, in 

14 each of the 5 years before the year in which 

15 this Act is enacted, in which information was 

16 requested by law enforcement officers from a 

17 provider of an electronic communication service 

18 or a remote computing service under a warrant 

19 as authorized under section 2703(a) of title 18, 

20 United States Code; 

21 (D) the number of individual instances and 

22 type of request, in each of the 5 years before 

23 the year in which this Act is enacted, in which 

24 information was requested by law enforcement 

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1 munication service or a remote computing serv2 ice under the other information request provi3 sions in section 2703 of title 18, United States 

4 Code; and 

5 (E) the number of individual instances, in 

6 each of the 5 years before the year in which 

7 this Act is enacted, in which law enforcement 

8 officers requested delayed notification to the 

9 subscriber or customer under section 2705 of 

10 title 18, United States Code; and 

11 (2) an analysis and evaluation of such disclo12 sure under section 2703 of title 18, United States 

13 Code, as amended by this Act, including— 

14 (A) an evaluation of the effects of the 

15 amendments to the warrant requirements on 

16 judges, court dockets, or any other court oper17 ations; 

18 (B) a survey of Federal, State, and local 

19 judges and law enforcement officers to deter20 mine the average length of time required for 

21 providers of an electronic communication serv22 ice or a remote computing service to provide the 

23 contents of communications requested under a 

24 search warrant, which shall include identifying 

25 the number of instances in which a judge was 


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1 required to order a provider of an electronic 

2 communication service or a remote computing 

3 service to appear to show cause for failing to 

4 comply with a warrant or to issue an order of 

5 contempt against a provider of an electronic 

6 communication service or a remote computing 

7 service for such a failure; and 

8 (C) determining whether the amendments 

9 to the warrant requirements resulted in an in10 crease in the use of the emergency exception 

11 under section 2702(b)(8) of title 18, United 

12 States Code. 

13 SEC. 6. RULE OF CONSTRUCTION. 

14 Nothing in this Act or an amendment made by this 

15 Act shall be construed to preclude the acquisition by the 

16 United States Government of— 

17 (1) the contents of a wire or electronic commu18 nication pursuant to other lawful authorities, includ19 ing the authorities under chapter 119 of title 18 

20 (commonly known as the ‘‘Wiretap Act’’), the For21 eign Intelligence Surveillance Act of 1978 (50 

22 U.S.C. 1801 et seq.), or any other provision of Fed23 eral law not specifically amended by this Act; or 

24 (2) records or other information relating to a 

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1 tions service or remote computing service (not in2 cluding the content of such communications) pursu3 ant to the Foreign Intelligence Surveillance Act of 

4 1978 (50 U.S.C. 1801 et seq.), chapter 119 of title 

5 18 (commonly known as the ‘‘Wiretap Act’’), or any 

6 other provision of Federal law not specifically 

7 amended by this Act. 

Æ 


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