I 
115TH CONGRESS 
1ST SESSION H. R. 3718 
To amend title 18, United States Code, to safeguard data stored abroad, 
and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
SEPTEMBER 8, 2017 
Mr. COLLINS of Georgia introduced the following bill; which was referred to 
the Committee on the Judiciary 
A BILL 
To amend title 18, United States Code, to safeguard data 
stored abroad, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘International Commu-
nications Privacy Act’’. 
SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF 
PURPOSE. 
Congress finds the following: 
(1) The Electronic Communications Privacy Act 
of 1986 (Public Law 99–508; 100 Stat. 1848) (re-
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ferred to in this section as ‘‘ECPA’’) was intended 
to protect the privacy of electronic communications 
and related records stored with providers of elec-
tronic communications services and remote com-
puting services, while providing law enforcement 
agencies with the appropriate legal tools to compel 
production of information from such providers. 
(2) ECPA authorized governmental entities to 
obtain certain categories of communications data 
from providers using established, pre-existing forms 
of process, including search warrants and subpoenas. 
It also created a new form of court order, in section 
2703(d) of title 18, United States Code, that govern-
mental entities could use to obtain additional types 
of communications data. 
(3) Congress recognizes that there are often 
many interests that must be recognized when law 
enforcement agencies seek information from pro-
viders, such as— 
(A) the legitimate needs of law enforce-
ment agencies in the United States to obtain, 
through lawful process, electronic communica-
tions relevant to criminal investigations; 
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(B) the privacy interests of all customers 
of the services offered by electronic communica-
tion service providers; and 
(C) the legitimate interests of governments 
to protect the human rights, civil liberties and 
privacy of their nationals and residents. 
(4) Therefore, where the Government seeks to 
obtain the contents of electronic communications of 
a national of a qualifying foreign government who is 
located outside of the United States, this Act au-
thorizes the use of search warrants to compel pro-
duction of that information only if the foreign gov-
ernment receives prior notice of the request and does 
not object or a judge determines that the interests 
of the United States in obtaining the information 
outweigh the interests of the qualifying foreign gov-
ernment in preventing the disclosure. 
SEC. 3. EXTENSION AND CLARIFICATION OF WARRANT RE-
QUIREMENT. 
(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 
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not knowingly divulge to any governmental entity 
the contents of any communication described in sec-
tion 2703(a), or any record or other information 
pertaining to a subscriber or customer of such serv-
ice.’’; 
(2) in section 2703— 
(A) by striking subsections (a) and (b) and 
inserting the following: 
‘‘(a) REQUIRED DISCLOSURE.—A governmental enti-
ty 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 
stored, held, or maintained by the provider, regardless of 
where such contents may be in electronic storage or other-
wise stored, held, or maintained, only pursuant to a war-
rant 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.’’; 
(B) 
by 
redesignating 
subsections 
(c) 
through (g) as subsections (b) through (f), re-
spectively; 
(C) in subsection (c), as so redesignated, 
in the first sentence— 
(i) by striking ‘‘(b) or’’; 
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(ii) by striking ‘‘the contents of a wire 
or electronic communication, or’’; and 
(iii) by striking ‘‘sought, are’’ and in-
serting ‘‘sought are’’; and 
(D) by adding at the end the following: 
‘‘(g) APPLICATION FOR WARRANT SEEKING CON-
TENTS OF WIRE OR ELECTRONIC COMMUNICATION.— 
‘‘(1) IN GENERAL.—An application for a war-
rant under this section seeking the contents of a 
wire or electronic communication of a subscriber or 
customer of an electronic communication service pro-
vider or remote computing service provider that is 
stored, held, or maintained by such provider shall 
state the nationality and location of the subscriber 
or customer whose communications are being 
sought, unless the nationality and location cannot 
reasonably be determined. 
‘‘(2) NATIONALITY
AND
LOCATION
NOT
REA-
SONABLY DETERMINED.—If the nationality and loca-
tion of the subscriber or customer cannot reasonably 
be determined, the application shall include a full 
and complete statement of the investigative steps 
taken to ascertain the nationality and location of the 
subscriber or customer. 
‘‘(3) EFFECTIVE DATE.— 
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‘‘(A) IN GENERAL.—The requirements of 
paragraphs (1) and (2) shall take effect 14 
days after the date on which the Attorney Gen-
eral first publishes a list of not less than 1 
qualifying 
foreign 
country 
under 
section 
2703A(e)(3). 
‘‘(B) APPLICABILITY.—The requirements 
of paragraphs (1) and (2) shall not apply dur-
ing any period of time in which no country is 
determined by the Attorney General to be a 
qualifying foreign country. 
‘‘(4) JURISDICTION OVER OFFENSE.—A court 
may issue a warrant under this section for the con-
tents of a wire or electronic communication only if 
the warrant application was made— 
‘‘(A) by a governmental entity in connec-
tion with an investigation of a criminal offense 
for which that entity has jurisdiction; or 
‘‘(B) on behalf of a foreign government in-
vestigating a criminal offense for which that 
foreign government has jurisdiction. 
‘‘(h) RULE OF CONSTRUCTION RELATED TO LEGAL 
PROCESS.—Nothing in this section, section 2702, or sec-
tion 2703A shall be construed to limit the authority of 
a governmental entity to use an administrative subpoena 
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authorized under a Federal or State law or to use a Fed-
eral or State grand jury, trial, or civil discovery subpoena 
to— 
‘‘(1) require an originator, addressee, or in-
tended 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, em-
ployees, 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 gov-
ernmental entity, if the electronic communication is 
held, stored, or maintained on an electronic commu-
nications system owned or operated by the entity.’’; 
(3) by inserting after section 2703 the fol-
lowing: 
‘‘§ 2703A. Special rule for communications of non- 
United States subscriber or customer in 
qualifying foreign country 
‘‘(a) IN GENERAL.— 
‘‘(1) NOTICE AND OPPORTUNITY TO OBJECT.— 
Except as provided in paragraph (2), if a subscriber 
or customer whose communications are being sought 
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is physically located outside the United States, is not 
a United States person, and is a national of or lo-
cated in a qualifying foreign country, the court may 
issue a warrant under section 2703 for the contents 
of such communications only if— 
‘‘(A) the qualifying foreign country has 
been provided notice of the warrant application; 
and 
‘‘(B)(i) the Central Authority of the quali-
fying foreign country has provided written cer-
tification that the disclosure may be had; 
‘‘(ii) 14 days have passed since the date on 
which the notice was provided under subpara-
graph (A) and the Central Authority of the 
qualifying foreign country has not initiated a 
challenge under subsection (c)(1); or 
‘‘(iii) the Central Authority of the quali-
fying foreign country has initiated a challenge 
under subsection (c)(1) and the court has de-
nied the challenge. 
‘‘(2) NATIONALITY
AND
LOCATION
NOT
REA-
SONABLY
DETERMINED.—Paragraph (1) shall not 
apply if— 
‘‘(A) the nationality and location of the 
subscriber or customer whose communications 
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are being sought cannot reasonably be deter-
mined; and 
‘‘(B) 
the 
requirements 
of 
section 
2703(g)(2) have been met. 
‘‘(b) CONTENTS OF NOTICE.—The notice required 
under subsection (a)(1)(A) shall include— 
‘‘(1) the name, nationality, and location of the 
subscriber or customer whose communications are 
being sought; 
‘‘(2) the name, nationality, and location of the 
service provider; and 
‘‘(3) a description of the events or offenses 
under investigation and how the communications 
sought are relevant and material to the investiga-
tion. 
‘‘(c) CHALLENGE TO WARRANT SEEKING CONTENTS 
OF WIRE OR ELECTRONIC COMMUNICATION.— 
‘‘(1) IN
GENERAL.—Upon a motion made 
promptly by a service provider or by the Central Au-
thority of a qualifying foreign country, a court re-
ceiving a warrant application under section 2703 or 
issuing a warrant under section 2703 for the con-
tents of a wire or electronic communication of a sub-
scriber or customer who is physically located outside 
the United States and who is not a United States 
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person shall deny, modify, or quash the warrant, as 
appropriate, if the court finds that— 
‘‘(A) the subscriber or customer is a na-
tional of or located in a qualifying foreign coun-
try and the qualifying foreign country was not 
provided notice of the warrant application in ac-
cordance with subsection (a)(1)(A), unless the 
court 
issued 
an 
order 
under 
subsection 
(d)(2)(A) waiving the requirements of sub-
section (a)(1); or 
‘‘(B)(i) disclosure would cause the service 
provider to violate the laws of a foreign country; 
and 
‘‘(ii) based on the totality of the cir-
cumstances, the warrant should not be issued 
or enforced because the interests of the foreign 
country in preventing the disclosure and the 
penalties the service provider or any employees 
of the service provider would likely suffer as a 
result of violating the laws of the foreign coun-
try outweigh the investigative interests of the 
governmental entity seeking to compel the dis-
closure. 
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‘‘(2) COMITY ANALYSIS.—For purposes of mak-
ing a determination under paragraph (1)(B)(ii), the 
court shall take into account, as appropriate— 
‘‘(A) the laws of the foreign country; 
‘‘(B) the investigative interests of the gov-
ernmental entity seeking to compel the disclo-
sure; 
‘‘(C) the interests of the foreign govern-
ment in preventing the disclosure; 
‘‘(D) the reasons, if any, for the objection 
of the foreign government; 
‘‘(E) the penalties the provider or any em-
ployees of the provider would likely suffer as a 
result of violating the laws of the foreign coun-
try; 
‘‘(F) the location and nationality of the 
subscriber or customer whose communications 
are being sought; 
‘‘(G) the location and nationality of the 
victims; 
‘‘(H) the location of the offense; 
‘‘(I) the seriousness of the offense; 
‘‘(J) the importance of the sought-after 
data to the investigation; and 
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‘‘(K) the possibility of timely accessing the 
data through other means. 
‘‘(3) DISCLOSURE OBLIGATIONS DURING PEND-
ENCY OF CHALLENGE.—A service provider shall not 
be obligated to produce the contents of the commu-
nications sought during the pendency of a challenge 
brought under this subsection. 
‘‘(d) EXCEPTIONS TO 14-DAY NOTICE PERIOD.— 
‘‘(1) EXPEDITED TREATMENT.— 
‘‘(A) IN GENERAL.—A court may issue an 
order shortening the time period described in 
subsection (a)(1)(A) to a time period not less 
than 7 days, if the court finds, based on specific 
and articulable facts, that such expedited treat-
ment is necessary to avoid one or more of the 
adverse results identified in section 2705(a)(2). 
‘‘(B) NOTICE.—An order issued under 
subparagraph (A) shall be served upon a rep-
resentative of the Central Authority of the 
qualifying foreign country in a timely manner. 
‘‘(2) DELAY OF NOTICE IN EXCEPTIONAL CIR-
CUMSTANCES.— 
‘‘(A) DELAY OF NOTICE.— 
‘‘(i) IN GENERAL.—A court receiving 
an application for a warrant under section 
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2703 for the contents of a wire or elec-
tronic communication of a subscriber or 
customer who is physically located outside 
the United States, who is not a United 
States person, and who is a national of or 
located in a qualifying foreign country may 
issue an order waiving the requirements of 
subsection (a)(1) for 90 days, if the court 
finds, based on specific and articulable 
facts, that providing notice of the warrant 
application to the qualifying foreign coun-
try would— 
‘‘(I) jeopardize national security; 
or 
‘‘(II) result in one or more of the 
adverse results identified in section 
2705(a)(2) because— 
‘‘(aa) the potential criminal 
activity under investigation is 
sponsored or directed by the 
qualifying foreign country; or 
‘‘(bb) there is reason to be-
lieve that, notwithstanding the 
certification required under sub-
section (e)(1)(A)(ii), the quali-
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fying foreign country would no-
tify the subject of the investiga-
tion of the existence of the inves-
tigation, the existence of the war-
rant application, or both. 
‘‘(ii) ISSUANCE OF WARRANT.—Upon 
a finding described in clause (i), and fol-
lowing issuance of an order under clause 
(i), the court may issue the warrant forth-
with. 
‘‘(B) EXTENSION
OF
ORDER
DELAYING 
NOTICE.—An order waiving the requirements of 
subsection (a)(1) may be extended in 90-day in-
crements until the investigation is completed. 
Any extension of an order under this subpara-
graph shall be made only upon a finding by the 
court, based on specific and articulable facts, 
that providing notice to the qualifying foreign 
country would lead to one or more of the ad-
verse 
results 
identified 
in 
subparagraph 
(A)(i)(II). 
‘‘(C) EFFECT
OF
EXPIRATION
OR
NON-
RENEWAL.— 
‘‘(i) IN
GENERAL.—Upon expiration 
or nonrenewal of an order issued under 
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subparagraph (A) the court shall suspend 
the warrant. 
‘‘(ii) DURATION
OF
SUSPENSION.— 
The suspension of a warrant under clause 
(i) shall remain in effect until— 
‘‘(I) the qualifying foreign coun-
try is provided notice of the warrant 
application; and 
‘‘(II)(aa) the Central Authority 
of the qualifying foreign country pro-
vides written certification that the dis-
closure may be had; 
‘‘(bb) the end of the 14-day pe-
riod beginning on the date on which 
the notice described in clause (i) was 
provided to the qualifying foreign 
country, if during the 14-day period 
the Central Authority of the quali-
fying foreign country does not initiate 
a challenge under subsection (c)(1); or 
‘‘(cc) the Central Authority of 
the qualifying foreign country initiates 
a challenge under subsection (c)(1) 
and the court rules on the challenge. 
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‘‘(iii) IMMEDIATE
LIFT
OF
SUSPEN-
SION.—For purposes of clause (ii)(II)(cc), 
if the court denies the challenge, the court 
shall immediately lift the suspension. 
‘‘(e) QUALIFYING FOREIGN COUNTRY.— 
‘‘(1) DEFINITION.—In this section, the term 
‘qualifying foreign country’ means a foreign country 
that— 
‘‘(A) has certified to the Attorney General 
that— 
‘‘(i) it will provide to the United 
States Government substantive and proce-
dural opportunities similar to those under 
this section when the foreign country is 
seeking information about United States 
persons from electronic communications 
service providers or remote computing 
service providers subject to its jurisdiction; 
and 
‘‘(ii) in the event it is provided notice 
of an application for a warrant under sub-
section (a)(1)(A), upon request from the 
United States Government it will not no-
tify the subject of the investigation of the 
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existence of the investigation, the existence 
of the warrant application, or both; and 
‘‘(B) the Attorney General, in consultation 
with the Secretary of State, has determined— 
‘‘(i) affords robust substantive and 
procedural protections for privacy and civil 
liberties; 
‘‘(ii) adheres to applicable inter-
national human rights obligations and 
commitments; 
‘‘(iii) provides to the United States 
Government substantive and procedural 
opportunities similar to those under this 
section when the foreign country is seeking 
information about United States persons 
from electronic communication service pro-
viders or remote computing service pro-
viders subject to its jurisdiction; and 
‘‘(iv) will not unnecessarily impede le-
gitimate criminal investigations or other-
wise undermine the foreign relations of the 
United States as a result of receiving no-
tice of warrant applications and the oppor-
tunity to initiate a challenge to such appli-
cations. 
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‘‘(2) DETERMINATION
REQUIRED.—Not later 
than 60 days after the date on which the Attorney 
General receives the certifications described in para-
graph (1)(A) from a foreign country, the Attorney 
General, in consultation with the Secretary of State, 
shall determine whether the country satisfies the re-
quirements described in paragraph (1)(B). If the At-
torney General determines a country satisfies the re-
quirements described in paragraph (1)(B), the At-
torney General shall add the country to the list of 
qualifying foreign countries under paragraph (3). 
‘‘(3) LIST
OF
QUALIFYING
FOREIGN
COUN-
TRIES.—The Attorney General shall— 
‘‘(A) publish and make publicly available a 
list of the countries that satisfy the require-
ments described in paragraph (1); 
‘‘(B) add to the list published under sub-
paragraph (A) any country that comes into 
compliance with the requirements described in 
paragraph (1); and 
‘‘(C) remove from the list published under 
subparagraph (A) any country that ceases to 
comply with the requirements described in para-
graph (1). 
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‘‘(f) RULE
OF CONSTRUCTION RELATED
TO NA-
TIONAL SECURITY AND INTELLIGENCE OPERATIONS.— 
Nothing in this section shall be construed to affect, im-
pact, or in any way impede terrorism investigations, mili-
tary operations, or operations or activities under the For-
eign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801 et seq.).’’; 
(4) in section 2704(a)(1), by striking ‘‘section 
2703(b)(2)’’ and inserting ‘‘section 2703’’; and 
(5) in section 2711— 
(A) in paragraph (3)(B) by striking ‘‘war-
rants; and’’ and inserting ‘‘warrants;’’; 
(B) in paragraph (4) by striking ‘‘thereof.’’ 
and inserting ‘‘thereof;’’; and 
(C) by adding at the end the following: 
‘‘(5) the term ‘United States person’ means a 
citizen of the United States or an alien lawfully ad-
mitted for permanent residence (as defined in sec-
tion 101(a) of the Immigration and Nationality Act 
(8 U.S.C. 1101(a))); 
‘‘(6) the term ‘Central Authority’ means the 
agency, department, office, or authority of a country 
responsible for administering law enforcement re-
quests between that country and another country; 
and 
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‘‘(7) the term ‘national of a foreign country’ 
means a citizen, a lawful resident, or an entity orga-
nized under the laws of a foreign jurisdiction.’’. 
(b) TECHNICAL AND CONFORMING AMENDMENTS.— 
Title 18, United States Code, is amended— 
(1) in section 2258A(h)(1), by striking ‘‘section 
2703(f)’’ and inserting ‘‘section 2703(e)’’; 
(2) in section 2705— 
(A) in subsection (a)(1), by striking ‘‘sec-
tion 2703(b)’’ each place the term appears and 
inserting ‘‘section 2703’’; and 
(B) in subsection (b), by striking ‘‘section 
2703(b)(1)’’ and inserting ‘‘section 2703’’; 
(3) in section 2707— 
(A) in subsection (a), by striking ‘‘section 
2703(e)’’ and inserting ‘‘section 2703(d)’’; and 
(B) in subsection (e)(1), by striking ‘‘sec-
tion 2703(f)’’ and inserting ‘‘section 2703(e)’’; 
and 
(4) in section 3486(a)(1)(C)(i), by striking 
‘‘section 
2703(c)(2)’’ 
and 
inserting 
‘‘section 
2703(b)(2)’’. 
(c) RULE OF CONSTRUCTION.—Nothing in this Act 
or the amendments made by this Act shall be construed 
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to expand the investigative authority of any governmental 
entity. 
(d) TABLE OF SECTIONS.—The table of sections for 
chapter 121 of title 18, United States Code, is amended 
by inserting after the item relating to section 2703 the 
following: 
‘‘2703A. Special rule for communications of non-United States subscriber or 
customer in qualifying foreign country.’’. 
SEC. 4. MUTUAL LEGAL ASSISTANCE TREATY REFORMS. 
(a) MUTUAL LEGAL ASSISTANCE TREATY TRANS-
PARENCY 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 govern-
ment filing a mutual legal assistance treaty re-
quest (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 govern-
ment to provide all the information nec-
essary for the MLAT request; 
(B) an online docketing system for all 
MLAT requests, which shall allow a foreign 
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government to track the status of an MLAT re-
quest filed by the foreign government; and 
(C) a process through which certified ap-
proval may be sought for disclosure pursuant to 
warrants issued under section 2703(a). 
(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 govern-
ments for the purpose of obtaining the contents 
of an electronic communication or other infor-
mation 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 re-
quests described in clause (i); 
(B)(i) the number of MLAT requests made 
to the Department of Justice by foreign govern-
ments for the purpose of obtaining the contents 
of an electronic communication or other infor-
mation or records from a provider of electronic 
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communications or remote computing services; 
and 
(ii) the average length of time taken by 
foreign governments to process the MLAT re-
quests described in clause (i); and 
(C)(i) the number of MLAT requests made 
to the Department of Justice by foreign govern-
ments for the purpose of obtaining the contents 
of an electronic communication or other infor-
mation 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 re-
quests 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 disclo-
sure of electronic communications content to a for-
eign government is made pursuant to an MLAT re-
quest. 
(b) PRESERVATION
OF RECORDS.—The Attorney 
General may issue a request pursuant to section 2703(e) 
of title 18, United States Code, as so redesignated by sec-
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tion 3, upon receipt of an MLAT request that appears 
to be facially valid. 
(c) NOTIFICATION
TO PROVIDER
OF MLAT RE-
QUEST.—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 commu-
nications 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 na-
ture 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 Representa-
tives should pursue open data flow policies with for-
eign nations. 
Æ 
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