II 

Calendar No. 556 

112TH CONGRESS 

2D SESSION H. R. 2471 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 7, 2011 

Received; read twice and referred to the Committee on the Judiciary 

NOVEMBER 29, 2012 

Reported by Mr. LEAHY, with an amendment and an amendment to the title 

[Strike out all after the enacting clause and insert the part printed in italic] 

AN ACT 

To amend section 2710 of title 18, United States Code, 

to clarify that a video tape service provider may obtain 

a consumer’s informed, written consent on an ongoing 

basis and that consent may be obtained through the 

Internet. 

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. AMENDMENT. 

2 Section 2710(b)(2) of title 18, United States Code, 

3 is amended by striking subparagraph (B) and inserting 

4 the following: 

5 ‘‘(B) to any person with the informed, written 

6 consent (including through an electronic means 

7 using the Internet) in a form distinct and separate 

8 from any form setting forth other legal or financial 

9 obligations of the consumer given at one or both of 

10 the following times— 

11 ‘‘(i) the time the disclosure is sought; and 

12 ‘‘(ii) in advance for a set period of time or 

13 until consent is withdrawn by such consumer;’’. 

14 TITLE I—VIDEO PRIVACY 

15 PROTECTION 

16 SEC. 101. SHORT TITLE . 

17 This title may be cited as the ‘‘Video Privacy Protec18 tion Act Amendments Act of 2012’’. 

19 SEC. 102. VIDEO PRIVACY PROTECTION ACT AMENDMENT. 

20 Section 2710(b)(2) of title 18, United States Code, is 

21 amended by striking subparagraph (B) and inserting the 

22 following: 

23 ‘‘(B) to any person with the informed, written 

24 consent (including through an electronic means using 

25 the Internet) of the consumer that— 


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1 ‘‘(i) is in a form distinct and separate from 

2 any form setting forth other legal or financial 

3 obligations of the consumer; 

4 ‘‘(ii) at the election of the consumer— 

5 ‘‘(I) is given at time the disclosure is 

6 sought; or 

7 ‘‘(II) is given in advance for a set pe8 riod of time, not to exceed 2 years or until 

9 consent is withdrawn by the consumer, 

10 which ever is sooner; and 

11 ‘‘(iii) the video tape service provider has 

12 provided an opportunity, in a clear and con13 spicuous manner, for the consumer to withdraw 

14 on a case-by-case basis or to withdraw for ongo15 ing disclosures, at the consumer’s election;’’. 

16 TITLE II—ELECTRONIC 

17 COMMUNICATIONS PRIVACY 

18 SEC. 201. SHORT TITLE. 

19 This title may be cited as the ‘‘Electronic Communica20 tions Privacy Act Amendments Act of 2012’’. 

21 SEC. 202. CONFIDENTIALITY OF ELECTRONIC COMMUNICA22 TIONS. 

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

24 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 the 

4 contents of any communication described in section 

5 2703(a), or any record or other information per6 taining to a subscriber or customer of such service.’’. 

7 SEC. 203. ELIMINATION OF 180-DAY RULE; SEARCH WAR8 RANT REQUIREMENT; REQUIRED DISCLO9 SURE OF CUSTOMER RECORDS. 

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

11 States Code, is amended by striking subsections (a), (b), 

12 and (c) and inserting the following: 

13 ‘‘(a) CONTENTS OF WIRE OR ELECTRONIC COMMU14 NICATIONS.—A governmental entity may require the disclo15 sure by a provider of electronic communication service or 

16 remote computing service of the contents of a wire or elec17 tronic communication that is in electronic storage with or 

18 otherwise stored, held, or maintained by the provider only 

19 if the governmental entity obtains a warrant issued using 

20 the procedures described in the Federal Rules of Criminal 

21 Procedure (or, in the case of a State court, issued using 

22 State warrant procedures) that is issued by a court of com23 petent jurisdiction directing the disclosure. 

24 ‘‘(b) NOTICE.—Except as provided in section 2705, not 

25 later than 10 business days, in the case of a law enforcement 


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1 agency, or not later than 3 days, in the case of any other 

2 governmental entity, after a governmental entity receives 

3 the contents of a wire or electronic communication of a sub4 scriber or customer from a provider of electronic commu5 nication service or remote computing service under sub6 section (a), the governmental entity shall serve upon, or de7 liver to by registered or first-class mail, electronic mail, or 

8 other means reasonably calculated to be effective, as speci9 fied by the court issuing the warrant, the subscriber or cus10 tomer— 

11 ‘‘(1) a copy of the warrant; and 

12 ‘‘(2) a notice that includes the information re13 ferred to in clause (i) and (ii) of section 

14 2705(a)(4)(B). 

15 ‘‘(c) RECORDS CONCERNING ELECTRONIC COMMUNICA16 TION SERVICE OR REMOTE COMPUTING SERVICE.— 

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

18 governmental entity may require a provider of elec19 tronic communication service or remote computing 

20 service to disclose a record or other information per21 taining to a subscriber or customer of the provider or 

22 service (not including the contents of communica23 tions), only if the governmental entity— 

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

25 procedures described in the Federal Rules of 


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

2 court, issued using State warrant procedures) 

3 that is issued by a court of competent jurisdic4 tion directing the disclosure; 

5 ‘‘(B) obtains a court order directing the dis6 closure under subsection (d); 

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

8 customer to the disclosure; or 

9 ‘‘(D) submits a formal written request rel10 evant to a law enforcement investigation con11 cerning telemarketing fraud for the name, ad12 dress, and place of business of a subscriber or 

13 customer of the provider or service that is en14 gaged in telemarketing (as defined in section 

15 2325). 

16 ‘‘(2) INFORMATION TO BE DISCLOSED.—A pro17 vider of electronic communication service or remote 

18 computing service shall, in response to an adminis19 trative subpoena authorized by Federal or State stat20 ute, a grand jury, trial, or civil discovery subpoena, 

21 or any means authorized under paragraph (1), dis22 close to a governmental entity the— 

23 ‘‘(A) name; 

24 ‘‘(B) address; 


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1 ‘‘(C) local and long distance telephone con2 nection records, or records of session times and 

3 durations; 

4 ‘‘(D) length of service (including start date) 

5 and types of service used; 

6 ‘‘(E) telephone or instrument number or 

7 other subscriber number or identity, including 

8 any temporarily assigned network address; and 

9 ‘‘(F) means and source of payment for such 

10 service (including any credit card or bank ac11 count number), of a subscriber or customer of 

12 such service. 

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

14 entity that receives records or information under this 

15 subsection is not required to provide notice to a sub16 scriber or customer.’’. 

17 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

18 Section 2703(d) of title 18, United States Code, is amend19 ed— 

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

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

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

23 (2) by striking ‘‘the contents of a wire or elec24 tronic communication, or’’. 


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1 SEC. 204. DELAYED NOTICE. 

2 Section 2705 of title 18, United States Code, is amend3 ed to read as follows: 

4 ‘‘§ 2705. Delayed notice 

5 ‘‘(a) DELAY OF NOTIFICATION.— 

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

7 is seeking a warrant under section 2703(a) may in8 clude in the application for the warrant a request for 

9 an order delaying the notification required under sec10 tion 2703(a) for a period of not more than 180 days, 

11 in the case of a law enforcement agency, or not more 

12 than 90 days, in the case of any other governmental 

13 entity. 

14 ‘‘(2) DETERMINATION.—A court shall grant a re15 quest for delayed notification made under paragraph 

16 (1) if the court determines that there is reason to be17 lieve that notification of the existence of the warrant 

18 may result in— 

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

20 of an individual; 

21 ‘‘(B) flight from prosecution; 

22 ‘‘(C) destruction of or tampering with evi23 dence; 

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

25 ‘‘(E) otherwise seriously jeopardizing an in26 vestigation or unduly delaying a trial. 


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1 ‘‘(3) EXTENSION.—Upon request by a govern2 mental entity, a court may grant 1 or more exten3 sions of the delay of notification granted under para4 graph (2) of not more than 180 days, in the case of 

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

6 in the case of any other governmental entity. 

7 ‘‘(4) EXPIRATION OF THE DELAY OF NOTIFICA8 TION.—Upon expiration of the period of delay of noti9 fication under paragraph (2) or (3), the governmental 

10 entity shall serve upon, or deliver to by registered or 

11 first-class mail, electronic mail or other means rea12 sonably calculated to be effective as specified by the 

13 court approving the search warrant, the customer or 

14 subscriber— 

15 ‘‘(A) a copy of the warrant; and 

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

17 subscriber— 

18 ‘‘(i) of the nature of the law enforce19 ment inquiry with reasonable specificity; 

20 ‘‘(ii) that information maintained for 

21 the customer or subscriber by the provider of 

22 electronic communication service or remote 

23 computing service named in the process or 

24 request was supplied to, or requested by, the 

25 governmental entity; 


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

2 was served on the provider and the date on 

3 which the information was provided by the 

4 provider to the governmental entity; 

5 ‘‘(iv) that notification of the customer 

6 or subscriber was delayed; 

7 ‘‘(v) the identity of the court author8 izing the delay; and 

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

10 under which the delay was authorized. 

11 ‘‘(b) PRECLUSION OF NOTICE TO SUBJECT OF GOV12 ERNMENTAL ACCESS.— 

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

14 is obtaining the contents of a communication or in15 formation or records under section 2703 may apply 

16 to a court for an order directing a provider of elec17 tronic communication service or remote computing 

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

19 directive under section 2703 is directed not to notify 

20 any other person of the existence of the warrant, 

21 order, subpoena, or other directive for a period of not 

22 more than 180 days, in the case of a law enforcement 

23 agency, or not more than 90 days, in the case of any 

24 other governmental entity. 


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1 ‘‘(2) DETERMINATION.—A court shall grant a re2 quest for an order made under paragraph (1) if the 

3 court determines that there is reason to believe that 

4 notification of the existence of the warrant, order, 

5 subpoena, or other directive may result in— 

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

7 of an individual; 

8 ‘‘(B) flight from prosecution; 

9 ‘‘(C) destruction of or tampering with evi10 dence; 

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

12 ‘‘(E) otherwise seriously jeopardizing an in13 vestigation or unduly delaying a trial. 

14 ‘‘(3) EXTENSION.—Upon request by a govern15 mental entity, a court may grant 1 or more exten16 sions of an order granted under paragraph (2) of not 

17 more than 180 days, in the case of a law enforcement 

18 agency, or not more than 90 days, in the case of any 

19 other governmental entity. 

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

21 Upon expiration of the period of delay of notice under 

22 this section, and not later than 3 business days before 

23 providing notice to a customer or subscriber, a pro24 vider of electronic communications service or remote 

25 computing service shall notify the governmental entiVerDate Mar 15 2010 03:08 Nov 30, 2012 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H2471.RS H2471

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1 ty that obtained the contents of a communication or 

2 information or records under section 2703 of the in3 tent of the provider of electronic communications serv4 ice or remote computing service to notify the customer 

5 or subscriber of the existence of the warrant, order, or 

6 subpoena seeking that information. 

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

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

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

10 authorized by law or by a government agency to engage in 

11 or supervise the prevention, detection, investigation, or 

12 prosecution of any violation of criminal law, or any other 

13 Federal or State agency conducting a criminal investiga14 tion.’’. 

15 SEC. 205. RULE OF CONSTRUCTION. 

16 Nothing in this title or an amendment made by this 

17 title shall be construed to apply the warrant requirement 

18 for contents of a wire or electronic communication author19 ized under this title or an amendment made by this title 

20 to any other section of title 18, United States Code (includ21 ing chapter 119 of such title (commonly known as the 

22 ‘‘Wiretap Act’’)), the Foreign Intelligence Surveillance Act 

23 of 1978 (50 U.S.C. 1801 et seq.), or any other provision 

24 of Federal law. 

Amend the title so as to read: ‘‘An Act to amend 

section 2710 of title 18, United States Code, to clarify 


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that a video tape service provider may obtain a consumer’s informed, written consent on an ongoing basis, 

to improve the provisions of title 18 relating to the privacy of electronic communications, and for other purposes.’’. 


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Calendar No. 556 

112TH CONGRESS 

2D SESSION H. R. 2471 

AN ACT 

To amend section 2710 of title 18, United States 

be obtained through the Internet. sent on an ongoing basis and that consent may may obtain a consumer’s informed, written conCode, to clarify that a video tape service provider 

NOVEMBER 29, 2012 

Reported with an amendment and an amendment to the 

title 


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