I 

117TH CONGRESS 

1ST SESSION H. R. 2738 

To amend section 2702 of title 18, United States Code, to prevent law 

enforcement and intelligence agencies from obtaining subscriber or customer records in exchange for anything of value, to address communications and records in the possession of intermediary internet service providers, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 21, 2021 

Mr. NADLER (for himself and Ms. LOFGREN) introduced the following bill; 

which was referred to the Committee on the Judiciary, and in addition 

to the Permanent Select Committee on Intelligence, for a period to be 

subsequently determined by the Speaker, in each case for consideration 

of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend section 2702 of title 18, United States Code, 

to prevent law enforcement and intelligence agencies 

from obtaining subscriber or customer records in exchange for anything of value, to address communications 

and records in the possession of intermediary internet 

service providers, 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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Fourth Amendment 

3 Is Not For Sale Act’’. 

4 SEC. 2. PROTECTION OF RECORDS HELD BY DATA BRO5 KERS. 

6 Section 2702 of title 18, United States Code, is 

7 amended by adding at the end the following: 

8 ‘‘(e) PROHIBITION ON OBTAINING IN EXCHANGE FOR

9 ANYTHING OF VALUE CERTAIN RECORDS AND INFORMA10 TION BY LAW ENFORCEMENT AND INTELLIGENCE AGEN11 CIES.— 

12 ‘‘(1) DEFINITIONS.—In this subsection— 

13 ‘‘(A) the term ‘covered customer or sub14 scriber record’ means a covered record that is— 

15 ‘‘(i) disclosed to a third party by— 

16 ‘‘(I) a provider of an electronic 

17 communication service to the public or 

18 a provider of a remote computing 

19 service of which the covered person 

20 with respect to the covered record is a 

21 subscriber or customer; or 

22 ‘‘(II) an intermediary service pro23 vider that delivers, stores, or proc24 esses communications of such covered 

25 person; 


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1 ‘‘(ii) collected by a third party from 

2 an online account of a covered person; or 

3 ‘‘(iii) collected by a third party from 

4 or about an electronic device of a covered 

5 person; 

6 ‘‘(B) the term ‘covered person’ means— 

7 ‘‘(i) a person who is located inside the 

8 United States; or 

9 ‘‘(ii) a person— 

10 ‘‘(I) who is located outside the 

11 United States or whose location can12 not be determined; and 

13 ‘‘(II) who is a United States per14 son, as defined in section 101 of the 

15 Foreign Intelligence Surveillance Act 

16 of 1978 (50 U.S.C. 1801); 

17 ‘‘(C) the term ‘covered record’ means a 

18 record or other information that— 

19 ‘‘(i) pertains to a covered person; and 

20 ‘‘(ii) is— 

21 ‘‘(I) a record or other informa22 tion described in the matter preceding 

23 paragraph (1) of subsection (c); 

24 ‘‘(II) the contents of a commu25 nication; or 


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1 ‘‘(III) location information; 

2 ‘‘(D) the term ‘electronic device’ has the 

3 meaning given the term ‘computer’ in section 

4 1030(e); 

5 ‘‘(E) the term ‘illegitimately obtained in6 formation’ means a covered record that— 

7 ‘‘(i) was obtained— 

8 ‘‘(I) from a provider of an elec9 tronic communication service to the 

10 public or a provider of a remote com11 puting service in a manner that— 

12 ‘‘(aa) violates the service 

13 agreement between the provider 

14 and customers or subscribers of 

15 the provider; or 

16 ‘‘(bb) is inconsistent with 

17 the privacy policy of the provider; 

18 ‘‘(II) by deceiving the covered 

19 person whose covered record was ob20 tained; or 

21 ‘‘(III) through the unauthorized 

22 accessing of an electronic device or 

23 online account; or 

24 ‘‘(ii) was— 


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1 ‘‘(I) obtained from a provider of 

2 an electronic communication service to 

3 the public, a provider of a remote 

4 computing service, or an intermediary 

5 service provider; and 

6 ‘‘(II) collected, processed, or 

7 shared in violation of a contract relat8 ing to the covered record; 

9 ‘‘(F) the term ‘intelligence community’ has 

10 the meaning given that term in section 3 of the 

11 National Security Act of 1947 (50 U.S.C. 

12 3003); 

13 ‘‘(G) the term ‘location information’ means 

14 information derived or otherwise calculated 

15 from the transmission or reception of a radio 

16 signal that reveals the approximate or actual 

17 geographic location of a customer, subscriber, 

18 or device; 

19 ‘‘(H) the term ‘obtain in exchange for any20 thing of value’ means to obtain by purchasing, 

21 to receive in connection with services being pro22 vided for consideration, or to otherwise obtain 

23 in exchange for consideration, including an ac24 cess fee, service fee, maintenance fee, or licens25 ing fee; 


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1 ‘‘(I) the term ‘online account’ means an 

2 online account with an electronic communica3 tion service to the public or remote computing 

4 service; 

5 ‘‘(J) the term ‘pertain’, with respect to a 

6 person, means— 

7 ‘‘(i) information that is linked to the 

8 identity of a person; or 

9 ‘‘(ii) information— 

10 ‘‘(I) that has been anonymized to 

11 remove links to the identity of a per12 son; and 

13 ‘‘(II) that, if combined with other 

14 information, could be used to identify 

15 a person; and 

16 ‘‘(K) the term ‘third party’ means a person 

17 who— 

18 ‘‘(i) is not a governmental entity; and 

19 ‘‘(ii) in connection with the collection, 

20 disclosure, obtaining, processing, or shar21 ing of the covered record at issue, was not 

22 acting as— 

23 ‘‘(I) a provider of an electronic 

24 communication service to the public; 

25 or 


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1 ‘‘(II) a provider of a remote com2 puting service. 

3 ‘‘(2) LIMITATION.— 

4 ‘‘(A) IN GENERAL.—A law enforcement 

5 agency of a governmental entity and an element 

6 of the intelligence community may not obtain 

7 from a third party in exchange for anything of 

8 value a covered customer or subscriber record 

9 or any illegitimately obtained information. 

10 ‘‘(B) INDIRECTLY ACQUIRED RECORDS

11 AND INFORMATION.—The limitation under sub12 paragraph (A) shall apply without regard to 

13 whether the third party possessing the covered 

14 customer or subscriber record or illegitimately 

15 obtained information is the third party that ini16 tially obtained or collected, or is the third party 

17 that initially received the disclosure of, the cov18 ered customer or subscriber record or illegit19 imately obtained information. 

20 ‘‘(3) LIMIT ON SHARING BETWEEN AGEN21 CIES.—An agency of a governmental entity that is 

22 not a law enforcement agency or an element of the 

23 intelligence community may not provide to a law en24 forcement agency of a governmental entity or an ele25 ment of the intelligence community a covered cusVerDate Sep 11 2014 02:28 Jun 04, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2738.IH H2738

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1 tomer or subscriber record or illegitimately obtained 

2 information that was obtained from a third party in 

3 exchange for anything of value. 

4 ‘‘(4) PROHIBITION ON USE AS EVIDENCE.—A 

5 covered customer or subscriber record or illegit6 imately obtained information obtained by or pro7 vided to a law enforcement agency of a governmental 

8 entity or an element of the intelligence community in 

9 violation of paragraph (2) or (3), and any evidence 

10 derived therefrom, may not be received in evidence 

11 in any trial, hearing, or other proceeding in or be12 fore any court, grand jury, department, officer, 

13 agency, regulatory body, legislative committee, or 

14 other authority of the United States, a State, or a 

15 political subdivision thereof. 

16 ‘‘(5) MINIMIZATION PROCEDURES.— 

17 ‘‘(A) IN GENERAL.—The Attorney General 

18 shall adopt specific procedures that are reason19 ably designed to minimize the acquisition and 

20 retention, and prohibit the dissemination, of in21 formation pertaining to a covered person that is 

22 acquired in violation of paragraph (2) or (3). 

23 ‘‘(B) USE BY AGENCIES.—If a law enforce24 ment agency of a governmental entity or ele25 ment of the intelligence community acquires inVerDate Sep 11 2014 02:28 Jun 04, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2738.IH H2738

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1 formation pertaining to a covered person in vio2 lation of paragraph (2) or (3), the law enforce3 ment agency of a governmental entity or ele4 ment of the intelligence community shall mini5 mize the acquisition and retention, and prohibit 

6 the dissemination, of the information in accord7 ance with the procedures adopted under sub8 paragraph (A).’’. 

9 SEC. 3. REQUIRED DISCLOSURE. 

10 Section 2703 of title 18, United States Code, is 

11 amended by adding at the end the following: 

12 ‘‘(i) COVERED CUSTOMER OR SUBSCRIBER RECORDS

13 AND ILLEGITIMATELY OBTAINED INFORMATION.— 

14 ‘‘(1) DEFINITIONS.—In this subsection, the 

15 terms ‘covered customer or subscriber record’, ‘ille16 gitimately obtained information’, and ‘third party’ 

17 have the meanings given such terms in section 

18 2702(e). 

19 ‘‘(2) LIMITATION.—Unless a governmental enti20 ty obtains an order in accordance with paragraph 

21 (3), the governmental entity may not require a third 

22 party to disclose a covered customer or subscriber 

23 record or any illegitimately obtained information if a 

24 court order would be required for the governmental 

25 entity to require a provider of remote computing 


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1 service or a provider of electronic communication 

2 service to the public to disclose such a covered cus3 tomer or subscriber record or illegitimately obtained 

4 information that is a record of a customer or sub5 scriber of the provider. 

6 ‘‘(3) ORDERS.— 

7 ‘‘(A) IN GENERAL.—A court may only 

8 issue an order requiring a third party to dis9 close a covered customer or subscriber record or 

10 any illegitimately obtained information on the 

11 same basis and subject to the same limitations 

12 as would apply to a court order to require dis13 closure by a provider of remote computing serv14 ice or a provider of electronic communication 

15 service to the public of a record of a customer 

16 or subscriber of the provider. 

17 ‘‘(B) STANDARD.—For purposes of sub18 paragraph (A), a court shall apply the most 

19 stringent standard under Federal statute or the 

20 Constitution of the United States that would be 

21 applicable to a request for a court order to re22 quire a comparable disclosure by a provider of 

23 remote computing service or a provider of elec24 tronic communication service to the public of a 


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1 record of a customer or subscriber of the pro2 vider.’’. 

3 SEC. 4. INTERMEDIARY SERVICE PROVIDERS. 

4 (a) DEFINITION.—Section 2711 of title 18, United 

5 States Code, is amended— 

6 (1) in paragraph (3), by striking ‘‘and’’ at the 

7 end; 

8 (2) in paragraph (4), by striking the period at 

9 the end and inserting ‘‘; and’’; and 

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

11 ‘‘(5) the term ‘intermediary service provider’ 

12 means an entity or facilities owner or operator that 

13 directly or indirectly delivers, stores, or processes 

14 communications for or on behalf of a provider of 

15 electronic communication service to the public or a 

16 provider of remote computing service.’’. 

17 (b) PROHIBITION.—Section 2702(a) of title 18, 

18 United States Code, is amended— 

19 (1) in paragraph (1), by striking ‘‘and’’ at the 

20 end; 

21 (2) in paragraph (2), by striking ‘‘and’’ at the 

22 end; 

23 (3) in paragraph (3), by striking the period at 

24 the end and inserting ‘‘; and’’; and 

25 (4) by adding at the end the following: 


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1 ‘‘(4) an intermediary service provider shall not 

2 knowingly divulge— 

3 ‘‘(A) to any person or entity the contents 

4 of a communication while in electronic storage 

5 by that provider; or 

6 ‘‘(B) to any governmental entity a record 

7 or other information pertaining to a subscriber 

8 to or customer of, a recipient of a communica9 tion from a subscriber to or customer of, or the 

10 sender of a communication to a subscriber to or 

11 customer of, the provider of electronic commu12 nication service to the public or the provider of 

13 remote computing service for, or on behalf of, 

14 which the intermediary service provider directly 

15 or indirectly delivers, transmits, stores, or proc16 esses communications.’’. 

17 SEC. 5. LIMITS ON SURVEILLANCE CONDUCTED FOR FOR18 EIGN INTELLIGENCE PURPOSES OTHER 

19 THAN UNDER THE FOREIGN INTELLIGENCE 

20 SURVEILLANCE ACT OF 1978. 

21 (a) IN GENERAL.—Section 2511(2)(f) of title 18, 

22 United States Code, is amended to read as follows: 

23 ‘‘(f)(i)(A) Nothing contained in this chapter, chapter 

24 121 or 206 of this title, or section 705 of the Communica25 tions Act of 1934 (47 U.S.C. 151 et seq.) shall be deemed 


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1 to affect an acquisition or activity described in clause (B) 

2 that is carried out utilizing a means other than electronic 

3 surveillance, as defined in section 101 of the Foreign In4 telligence Surveillance Act of 1978 (50 U.S.C. 1801). 

5 ‘‘(B) An acquisition or activity described in this 

6 clause is— 

7 ‘‘(I) an acquisition by the United States Gov8 ernment of foreign intelligence information from 

9 international or foreign communications that— 

10 ‘‘(aa) is acquired pursuant to express stat11 utory authority; or 

12 ‘‘(bb) only includes information of persons 

13 who are not United States persons and are lo14 cated outside the United States; or 

15 ‘‘(II) a foreign intelligence activity involving a 

16 foreign electronic communications system that— 

17 ‘‘(aa) is conducted pursuant to express 

18 statutory authority; or 

19 ‘‘(bb) only involves the acquisition by the 

20 United States Government of information of 

21 persons who are not United States persons and 

22 are located outside the United States. 

23 ‘‘(ii) The procedures in this chapter, chapter 121, 

24 and the Foreign Intelligence Surveillance Act of 1978 (50 

25 U.S.C. 1801 et seq.) shall be the exclusive means by which 


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1 electronic surveillance, as defined in section 101 of such 

2 Act, and the interception of domestic wire, oral, and elec3 tronic communications may be conducted.’’. 

4 (b) EXCLUSIVE MEANS RELATED TO COMMUNICA5 TIONS RECORDS.—The Foreign Intelligence Surveillance 

6 Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive 

7 means by which electronic communications transactions 

8 records, call detail records, or other information from com9 munications of United States persons or persons inside the 

10 United States are acquired for foreign intelligence pur11 poses inside the United States or from a person or entity 

12 located in the United States that provides telecommuni13 cations, electronic communication, or remote computing 

14 services. 

15 (c) EXCLUSIVE MEANS RELATED TO LOCATION IN16 FORMATION, WEB BROWSING HISTORY, AND INTERNET

17 SEARCH HISTORY.— 

18 (1) DEFINITION.—In this subsection, the term 

19 ‘‘location information’’ has the meaning given that 

20 term in subsection (e) of section 2702 of title 18, 

21 United States Code, as added by section 2 of this 

22 Act. 

23 (2) EXCLUSIVE MEANS.—Title I and sections 

24 303, 304, 703, 704, and 705 of the Foreign Intel25 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et 


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1 seq., 1823, 1824, 1881b, 1881c, 1881d) shall be the 

2 exclusive means by which location information, web 

3 browsing history, and internet search history of 

4 United States persons or persons inside the United 

5 States are acquired for foreign intelligence purposes 

6 inside the United States or from a person or entity 

7 located in the United States. 

8 (d) EXCLUSIVE MEANS RELATED TO FOURTH

9 AMENDMENT-PROTECTED INFORMATION.—Title I and 

10 sections 303, 304, 703, 704, and 705 of the Foreign Intel11 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq., 

12 1823, 1824, 1881b, 1881c, 1881d) shall be the exclusive 

13 means by which any information, records, data, or tangible 

14 things are acquired for foreign intelligence purposes from 

15 a person or entity located in the United States if the com16 pelled production of such information, records, data, or 

17 tangible things would require a warrant for law enforce18 ment purposes. 

19 (e) DEFINITION.—In this section, the term ‘‘United 

20 States person’’ has the meaning given that term in section 

21 101 of the Foreign Intelligence Surveillance Act of 1978 

22 (50 U.S.C. 1801). 


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1 SEC. 6. LIMIT ON CIVIL IMMUNITY FOR PROVIDING INFOR2 MATION, FACILITIES, OR TECHNICAL ASSIST3 ANCE TO THE GOVERNMENT ABSENT A 

4 COURT ORDER. 

5 Section 2511(2)(a) of title 18, United States Code, 

6 is amended— 

7 (1) in subparagraph (ii), by striking clause (B) 

8 and inserting the following: 

9 ‘‘(B) a certification in writing— 

10 ‘‘(I) by a person specified in section 

11 2518(7) or the Attorney General of the United 

12 States; 

13 ‘‘(II) that the requirements for an emer14 gency authorization to intercept a wire, oral, or 

15 electronic communication under section 2518(7) 

16 have been met; and 

17 ‘‘(III) that the specified assistance is re18 quired,’’; and 

19 (2) by striking subparagraph (iii) and inserting 

20 the following: 

21 ‘‘(iii) For assistance provided pursuant to a certifi22 cation under subparagraph (ii)(B), the limitation on 

23 causes of action under the last sentence of the matter fol24 lowing subparagraph (ii)(B) shall only apply to the extent 

25 that the assistance ceased at the earliest of the time the 

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1 munication sought was obtained, or 48 hours after the 

2 interception began.’’. 

Æ 


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