ECPA Modernization Act of 2017

To amend title 18, United States Code, to update the privacy protections for electronic communications information that is stored by third-party service providers and for geolocation information in order to protect consumer privacy interests while meeting law enforcement needs, and for other purposes. 1. Short title This Act may be cited as the ECPA Modernization Act of 2017 2. Warrant for stored content and geolocation information (a) Voluntary disclosure of customer communications or records Section 2702 of title 18, United States Code, is amended— (1) in subsection (a)— (A) in paragraph (1)— (i) by striking divulge disclose (ii) by striking while in electronic storage by that service that is in electronic storage with or otherwise stored, held, or maintained by that service (B) in paragraph (2), in the matter preceding subparagraph (A)— (i) by striking to the public (ii) by striking divulge disclose (iii) by striking which is carried or maintained on that is stored, held, or maintained by (C) in paragraph (3)— (i) by striking a provider of a person or entity providing (ii) by inserting , or a geolocation service, public (iii) by striking divulge disclose the contents of any communication described in section 2703(a) (iv) by striking a record , any records, geolocation information, (v) by striking (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity to any governmental entity (2) in subsection (b)— (A) in the matter preceding paragraph (1)— (i) by striking divulge disclose (ii) by inserting wire or electronic communication (B) by striking paragraph (1) and inserting the following: (1) to an originator, addressee, or intended recipient of such communication, to the subscriber or customer on whose behalf the provider stores, holds, or maintains such communication, or to an agent of such addressee, intended recipient, subscriber, or customer; ; and (C) by striking paragraph (3) and inserting the following: (3) with the lawful consent of the originator, addressee, or intended recipient of such communication, or of the subscriber or customer on whose behalf the provider stores, holds, or maintains such communication; ; and (3) in subsection (c)— (A) in the matter preceding paragraph (1)— (i) by striking divulge disclose (ii) by inserting , geolocation information, record (iii) by inserting wire or electronic communications (B) in paragraph (2)— (i) by striking customer subscriber (ii) by striking or subscriber or customer (C) in paragraph (5), by striking or (D) in paragraph (6), by striking the period at the end and inserting ; or (E) by adding at the end the following: (7) to a governmental entity as permitted under section 222(d)(4) of the Communications Act of 1934 ( 47 U.S.C. 222(d)(4) . (b) Required disclosure of customer communications or records Section 2703 of title 18, United States Code, is amended— (1) in subsection (a)— (A) in the first sentence— (i) by inserting or remote computing service service (ii) by striking in an electronic communications system for one hundred and eighty days or less, only pursuant to with or otherwise stored, held, or maintained by the provider only if the governmental entity obtains (iii) by inserting directing disclosure (B) by striking the second sentence; (2) by striking subsection (b) and inserting the following: (b) 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, 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 may be specified by the court issuing the warrant, the subscriber or customer— (1) a copy of the warrant or emergency request; and (2) a notice that includes the information referred to in clauses (i) and (ii) of section 2705(a)(4)(B). ; (3) in subsection (c)— (A) in paragraph (1)— (i) in the matter preceding subparagraph (A)— (I) by striking A governmental In general (II) by inserting , geolocation information service, communication service (III) by striking to or or (IV) by striking of such service of the provider or service (V) by inserting or geolocation information communications (VI) by striking when if (ii) in subparagraph (A), by inserting directing disclosure (iii) in subparagraph (B)— (I) by striking for such directing (II) by striking of this section (iv) in subparagraph (C), by striking the semicolon at the end and inserting ; or (v) in subparagraph (D), by striking ; or (vi) by striking subparagraph (E); (B) in paragraph (2)— (i) by striking A provider Information to be disclosed (ii) by inserting , geolocation information service, communication service (iii) by striking shall disclose to a governmental entity to disclose, in response to an administrative subpoena authorized by Federal or State statute, a grand jury, trial, or civil discovery subpoena, or any means authorized under paragraph (1) (iv) in the matter following subparagraph (F)— (I) by striking such the provider or (II) by striking when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1) (C) in paragraph (3)— (i) by striking A governmental Notice not required (ii) by striking receiving that receives (4) in subsection (f)(1)— (A) by inserting , geolocation information service, communication services (B) by striking a remote remote (C) by inserting , geolocation information, records (5) in subsection (g)— (A) by inserting , geolocation information service, communications service (B) by inserting , geolocation information, of communications (6) by adding at the end the following: (h) Geolocation information (1) In general A governmental entity may require a provider of electronic communication service, geolocation information service, or remote computing service, to disclose stored geolocation information only pursuant to a warrant issued and executed in accordance with the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures), issued by a court of competent jurisdiction. (2) Notice Except as provided in section 2705, not later than 10 business days after a governmental entity acquires stored geolocation information, 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 may be specified by the court issuing the warrant, the subscriber or customer— (A) a copy of the warrant or emergency request; and (B) a notice that includes the information referred to in clauses (i) and (ii) of section 2705(a)(4)(B). (i) Rule of construction related to legal process Nothing in this section or in section 2702 shall limit an otherwise lawful authority of a governmental entity to use an administrative subpoena authorized by Federal or State statute, a grand jury, trial, or civil discovery subpoena, or 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 to— (1) require an originator, addressee, or intended recipient of a wire or electronic communication to disclose a wire or electronic communication (including the contents of that communication) to the governmental entity; (2) require a person or entity that provides an electronic communication service to the officers, directors, employees, or agents of the person or entity (for the purpose of carrying out their duties) to disclose wire or electronic communication (including the contents of that communication) to or from the person or entity itself or to or from an officer, director, employee, or agent of the entity to a governmental entity, if the wire or electronic communication is stored, held, or maintained on an electronic communications system owned, operated, or controlled by the person or entity; or (3) require a person or entity that provides a remote computing service or electronic communication service to disclose a wire or electronic communication (including the contents of that communication) that advertises or promotes a product or service and that has been made readily accessible to the general public. . (c) Cost reimbursement Section 2706(a) of title 18, United States Code, is amended by inserting geolocation information, records, 3. Particularity requirement for stored electronic records Section 2703(d) of title 18, United States Code, is amended— (1) by redesignating— (A) the first and second sentences as paragraph (1) and adjusting the margins accordingly; and (B) the third sentence as paragraph (2) and adjusting the margins accordingly; (2) in paragraph (1), as redesignated— (A) in the first sentence— (i) by striking (b) or (ii) by striking the contents of a wire or electronic communication, or (B) by inserting The court order shall describe with particularity the records or other information to be seized by specifying, as appropriate and reasonable in light of the specific circumstances of the investigation, the time periods covered, the target individuals or accounts, the applications or services covered, and the types of information sought. investigation. (3) in paragraph (2), as redesignated— (A) by striking , if , if— (B) by striking the information (A) the information (C) by inserting ; or nature (D) by striking or compliance (B) compliance 4. Notice of lawfully obtained information Section 2705 of title 18, United States Code, is amended— (1) in subsection (a)— (A) by striking paragraph (1) and inserting the following: (1) In general A governmental entity that is seeking a warrant under subsection (a) or (h) of section 2703 may include in the application for the warrant a request for an order delaying the notification required under section 2703(b) for a period of not more than 90 days. ; (B) in paragraph (2), in the matter preceding subparagraph (A), by striking An adverse result for the purposes of paragraph (1) of this subsection is Determination (C) by striking paragraphs (3) and (4) and inserting the following: (3) Extension Upon request by a governmental entity, a court may grant one or more extensions of the delay of notification granted under paragraph (2) of not more than 90 days. ; (D) by redesignating paragraph (5) as paragraph (4); (E) in paragraph (4), as redesignated,— (i) in the matter preceding subparagraph (A)— (I) by striking Upon Expiration of the delay of notification (II) by striking (1) or (4) of this subsection (2) or (3) (III) by inserting to deliver (IV) by striking to, , electronic mail, or other means reasonably calculated to be effective as specified by the court approving the search warrant, (ii) by striking subparagraph (A); (iii) by striking a copy of the process or request together with notice that (A) a copy of the warrant; and ; and (iv) in subparagraph (B)— (I) in the matter preceding clause (i)— (aa) by inserting notice that informs (bb) by striking such the (II) by redesignating— (aa) clauses (ii) through (iv) as clauses (iv) through (vi), respectively; and (bb) clause (i) as clause (ii); (III) by adding before clause (ii), as redesignated, the following: (i) of the nature of the law enforcement inquiry with reasonable specificity; ; (IV) in clause (ii), as redesignated, by striking to or requested by that governmental authority and the date on which the supplying or request took place to, or requested by, the governmental entity (V) by inserting after clause (ii), as redesignated, the following: (iii) of the date on which the warrant was served on the provider and the date on which the information was provided by the provider to the governmental entity; ; (VI) in clause (v), as redesignated, by striking what governmental entity or court made the certification or determination pursuant to which that delay was made the identity of the court authorizing the delay (VII) in clause (vi), as redesignated, by striking which provision of this chapter allowed such delay of the provision of this chapter under which the delay was authorized (F) by striking paragraph (6); and (2) by striking subsection (b) and inserting the following: (b) Preclusion of notice to subject of governmental access (1) In general A governmental entity that is obtaining the contents of a communication or information or records under section 2703 may apply to a court for an order directing a provider of electronic communication service, geolocation service, or remote computing service to which a warrant, order, subpoena, or other directive under section 2703 is directed not to notify any other person of the existence of the warrant, order, subpoena, or other directive for a period of not more than 90 days. (2) Determination A court shall grant a request for an order made under paragraph (1) if the court determines that there is reason to believe, based on specific and articulable facts, that notification of the existence of the warrant, order, subpoena, or other directive will result in— (A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial. (3) Extension Upon request by a governmental entity, a court may grant one or more extensions of an order granted under paragraph (2) of not more than 90 days. (4) Notification of changed circumstances Upon conclusion of the investigation for which a warrant, order, subpoena, or other directive under section 2703 was sought, or if the need for the nondisclosure order under subparagraph (2) ceases to exist, the governmental entity that requested the nondisclosure order shall, within a reasonable period of time, notify the court of the changed circumstances so that the nondisclosure order can be reassessed or vacated. (5) Exception A provider of electronic communication service or remote computing service to which an order under subsection (b)(2) applies, or officer, employee, or agent thereof, may disclose information otherwise subject to any applicable nondisclosure requirement to— (A) those persons to whom disclosure is necessary in order to comply with the request; (B) an attorney in order to obtain legal advice or assistance regarding the request; and (C) upon an application by a provider, any person the court determines can be notified of the request without causing the adverse result in subparagraph (2) that serves as the basis for the issuance of the nondisclosure order. (6) Scope of nondisclosure order Any person to whom disclosure is made under paragraph (5) shall be subject to the nondisclosure requirements applicable to the person to whom the order is issued under subparagraph (2) in the same manner as the person to whom the request is issued. Any recipient that discloses to a person information otherwise subject to a nondisclosure requirement shall notify the person of the applicable nondisclosure requirement. . 5. Warrant requirement for real-time geolocation information and location tracking (a) Definitions Section 2711 of title 18, United States Code, is amended— (1) in paragraph (3)(B), by striking and (2) in paragraph (4), by striking the period at the end and inserting a semicolon; or (3) by adding at the end the following: (5) the term electronic communications device (6) the term geolocation information (A) means any information concerning the past or current location of an electronic communications device that is in whole or in part generated by or derived from the operation or use of the electronic communications device; and (B) does not include— (i) information described in section 2703(c)(2); or (ii) the contents of a communication; and (7) the term geolocation information service . (b) Location tracking of electronic communications device (1) In general Chapter 121 2713. Location tracking of electronic communications device (a) Prohibition Except as provided in subsection (b), (c), or (d), or section 2702 or 2703, no governmental entity may access or use an electronic communications device to acquire geolocation information. (b) Acquisition pursuant to a warrant or court order A governmental entity may access or use an electronic communications device to acquire geolocation information if the governmental entity obtains— (1) a warrant issued and executed in accordance with provisions relating to tracking devices in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures), issued by a court of competent jurisdiction authorizing the access or use of an electronic communications device to acquire geolocation information; or (2) a court order under title I, title III, or title VII of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 (c) Permitted acquisitions without court order A governmental entity may access or use an electronic communications device to acquire geolocation information— (1) as permitted under section 222(d)(4) of the Communications Act of 1934 ( 47 U.S.C. 222(d)(4) (2) with the lawful consent of the owner or authorized user of the electronic communications device concerned; or (3) if the owner or user of the electronic communications device concerned has knowingly communicated geolocation information in a manner that is readily accessible to the general public. (d) Emergency acquisition of geolocation information (1) In general Subject to paragraph (2), an investigative or law enforcement officer specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, any United States attorney, any acting United States attorney, or the principal prosecuting attorney of any State or political subdivision thereof acting pursuant to a statute of that State may access or use an electronic communications device to acquire geolocation information if the investigative or law enforcement officer reasonably determines that— (A) an emergency situation exists that— (i) involves— (I) immediate danger of death or serious bodily injury to any person; or (II) an immediate threat to national security; and (ii) requires the access or use of an electronic communications device to acquire geolocation information before an order authorizing the acquisition may, with due diligence, be obtained; and (B) in circumstances in which geolocation information may be used as evidence of a crime or in furtherance of a criminal investigation, there are grounds upon which an order could be entered under this section to authorize the accessing or use of an electronic communications device to acquire geolocation information. (2) Notice, order and termination If an investigative or law enforcement officer accesses or uses an electronic communications device to acquire geolocation information under paragraph (1)— (A) the officer shall, not later than 10 business days after acquiring geolocation information, serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, notice to the owner or authorized user of the electronic communications device whose geolocation information was acquired that such information was obtained or accessed pursuant to the emergency provisions under this subsection and describing the factual bases that led to the officer’s determination that an emergency situation existed; (B) in circumstances in which geolocation information may be used as evidence of a crime or in furtherance of a criminal investigation, not later than 48 hours after the activity to acquire or access the geolocation information has occurred, or begins to occur, the investigative or law enforcement officer shall seek a warrant or order described in subsection (b) approving the acquisition; and (C) unless a warrant or order described in subsection (b) is issued approving the acquisition, the activity to acquire the geolocation information shall terminate immediately at the earlier of the time— (i) the information sought is obtained; (ii) the application for the warrant or order is denied; or (iii) at which 48 hours have elapsed since the activity to acquire or access the geolocation information began to occur. (3) Violation and suppression of evidence (A) In general In a circumstance described in subparagraph (B)— (i) no information obtained, or evidence derived, from geolocation information acquired as part of the access or use of an electronic communications device to acquire geolocation information may be received into evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof; (ii) no information concerning any person acquired from the geolocation information may be used, disseminated, or disclosed in any other manner, without the consent of the person; and (iii) all information collected shall be promptly destroyed. (B) Circumstances A circumstance described in this subparagraph is any instance in which— (i) an investigative or law enforcement officer does not— (I) obtain a warrant or order described in subsection (b) within 48 hours of commencing the access or use of the electronic communications device; or (II) terminate the activity to acquire geolocation information in accordance with paragraph (2)(B); or (ii) a court denies the application for a warrant or order approving the accessing or use of an electronic communications device to acquire geolocation information. (e) Assistance and compensation (1) In general A warrant described in subsection (b)(1) authorizing the accessing or use of an electronic communications device to acquire geolocation information shall, upon request of the applicant, direct that a provider of electronic communication service, remote computing service, or geolocation information service shall provide to the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the acquisition unobtrusively and with a minimum of interference with the services that the provider is providing to or through the electronic communications device in question. (2) Compensation Any provider of electronic communication service, remote computing service, or geolocation information service providing information, facilities, or technical assistance under a directive under paragraph (1) shall be compensated by the applicant for reasonable expenses incurred in providing the information, facilities, or assistance. (f) No cause of action against a provider No cause of action shall lie in any court against any provider of electronic communication service, remote computing service, or geolocation information service, or an officer, employee, or agent of the provider or other specified person for providing information, facilities, or assistance necessary to accomplish an acquisition of geolocation information authorized under this section. . (2) Technical and conforming amendment The table of sections for chapter 121 2713. Location tracking of electronic communications device. . 6. Suppression of unlawfully obtained wire or electronic communication or geolocation information (a) In general Chapter 121 2714. Suppression remedy (a) In general If a governmental entity requires the disclosure of a wire or electronic communication or geolocation information in violation of this chapter, or accesses or uses an electronic communications device to acquire geolocation information in violation of this chapter, no part of the contents of the communication, no geolocation information, and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof. (b) Grounds An aggrieved person in a trial, hearing, or proceeding in or before a court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof may move to suppress the contents of any wire or electronic communication or geolocation information disclosed or acquired under this chapter, or evidence derived therefrom, on the grounds that— (1) the communication or information was unlawfully disclosed; (2) the warrant under which it was disclosed is insufficient on its face; or (3) the disclosure was not made in conformity with the warrant. (c) Procedure (1) Timing A motion under subsection (b) shall be made before the trial, hearing, or proceeding commences, unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. (2) Inspection The judge or other official, upon the filing of a motion under subsection (b), may make available to the aggrieved person or the attorney for the aggrieved person for inspection such portions of the disclosed communication, geolocation information, or evidence derived therefrom as the judge or other official determines to be in the interests of justice. (3) Motion granted If a motion under subsection (b) is granted, the contents of the disclosed wire or electronic communication, geolocation information, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. (d) Appeal In addition to any other right to appeal, the United States shall have the right to appeal an order granting a motion to suppress made under subsection (b) if the United States attorney certifies to the judge or other official granting such motion that the appeal is not taken for purposes of delay. Such appeal shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted. (e) Definition In this section, the term aggrieved person (1) a person whose wire or electronic communication or geolocation information was disclosed pursuant to this chapter; or (2) the owner or authorized user of the electronic communications device whose geolocation information was acquired pursuant to this chapter. . (b) Technical and conforming amendment The table of sections for chapter 121 2714. Suppression remedy. . 7. Pen register and trap and trace reforms (a) Application for an order for a pen register or a trap and trace device Section 3122(b)(2) of title 18, United States Code, is amended— (1) by striking a certification by the applicant specific and articulable facts showing that there are reasonable grounds to believe (2) by inserting and material relevant (b) Issuance of an order for a pen register or a trap and trace device Section 3123 of title 18, United States Code, is amended— (1) in subsection (a)— (A) in paragraph (1)— (i) by striking certified to the court offered specific and articulable facts showing that there are reasonable grounds to believe (ii) by inserting and material relevant (B) in paragraph (2)— (i) by striking has certified to the court offered specific and articulable facts showing that there are reasonable grounds to believe (ii) by inserting and material relevant (2) in subsection (d)— (A) in paragraph (1), by inserting for a period of 30 days after termination of the order, unless sealed (B) in paragraph (2), by inserting for a period of 30 days after termination of the order investigation 8. GAO and FCC report on cell-site simulators (a) FCC report Not later than 1 year after the date of enactment, the Federal Communications Commission shall submit to the Committee on the Judiciary of the Senate and Committee on the Judiciary of the House of Representatives a report regarding the domestic use of cell-site simulators (or IMSI catchers (1) an evaluation of the security vulnerabilities in cellular phones and cellular networks exploited by cell-site simulators, and the extent to which those vulnerabilities could be or have been exploited by criminals or foreign governments; and (2) an analysis of whether the use of cell-site simulators results in disruptions in cellular phone service in affected areas and the extent of such disruptions. (b) GAO report Not later than 1 year after the date of enactment, the Comptroller General of the United States shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report regarding the domestic use of cell-site simulators (or IMSI catchers (1) a list of each Federal, State, and local law enforcement agency that uses cell-site simulators, and for what purposes, including whether the devices are used to monitor protests or other large public gatherings and the types of crimes they are used to investigate; (2) the extent to which the Federal Government is providing or funding the purchase of cell-site simulators for State and local law enforcement agencies, including which Federal grants are used for such purpose; (3) a list of each Federal agency that makes cell-site simulators available for use by State or local law enforcement agencies, information about any agreements or procedures governing that sharing, and information about how frequently such sharing occurs; (4) whether any Federal, State, or local law enforcement agencies are using cell-site simulators to obtain the contents of communications, deliver malware to phones, or for purposes other than locating a particular cellular device; (5) whether and the extent to which any Federal, State, or local law enforcement agencies are using cell-site simulators for enforcement of civil immigration law; (6) an explanation of the methods used by Federal, State, or local law enforcement agencies to deploy cell-site simulators, including whether such devices are attached to planes or other aerial devices; (7) an explanation of the approval process that Federal, State, and local law enforcement agencies require prior to use of cell-site simulators, whether these agencies obtain judicial approval prior to deployment of cell-site simulators, and if so, what type and with what frequency; (8) an evaluation of whether Federal, State, or local law enforcement agencies have adequate training and auditing mechanisms in place regarding the use of cell-site simulators, and whether these agencies have policies or procedures governing the deletion of information collected by cell-site simulators; (9) the number of State and local law enforcement agencies that are subject to nondisclosure agreements or other orders limiting disclosure of information regarding the use of cell-site simulators; and (10) the extent to which Federal, State, or local law enforcement use of cell cite simulators has a disproportionate impact on particular communities, and disparately impacts particular racial, ethnic, or other disadvantaged communities. 9. Rule of construction Nothing in this Act, or an amendment made by this Act, shall be construed to preclude the acquisition by the United States Government of— (1) the contents of a wire or electronic communication pursuant to other lawful authorities, including the authorities under chapter 119 50 U.S.C. 1801 (2) geolocation information, records or other information relating to a subscriber or customer of any electronic communication service or remote computing service (not including the content of such communications) pursuant to chapter 119 50 U.S.C. 1801

Summary: ECPA Modernization Act of 2017 This bill revises provisions that limit an electronic communication service provider or remote communication service provider from disclosing to law enforcement the contents of a wire or electronic communication that is in electronic storage.