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 cus-
tomer records in exchange for anything of value, to address communica-
tions and records in the possession of intermediary internet service pro-
viders, 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 con-
cerned 
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 ex-
change for anything of value, to address communications 
and records in the possession of intermediary internet 
service providers, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Fourth Amendment 
Is Not For Sale Act’’. 
SEC. 2. PROTECTION OF RECORDS HELD BY DATA BRO-
KERS. 
Section 2702 of title 18, United States Code, is 
amended by adding at the end the following: 
‘‘(e) PROHIBITION ON OBTAINING IN EXCHANGE FOR 
ANYTHING OF VALUE CERTAIN RECORDS AND INFORMA-
TION BY LAW ENFORCEMENT AND INTELLIGENCE AGEN-
CIES.— 
‘‘(1) DEFINITIONS.—In this subsection— 
‘‘(A) the term ‘covered customer or sub-
scriber record’ means a covered record that is— 
‘‘(i) disclosed to a third party by— 
‘‘(I) a provider of an electronic 
communication service to the public or 
a provider of a remote computing 
service of which the covered person 
with respect to the covered record is a 
subscriber or customer; or 
‘‘(II) an intermediary service pro-
vider that delivers, stores, or proc-
esses communications of such covered 
person; 
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‘‘(ii) collected by a third party from 
an online account of a covered person; or 
‘‘(iii) collected by a third party from 
or about an electronic device of a covered 
person; 
‘‘(B) the term ‘covered person’ means— 
‘‘(i) a person who is located inside the 
United States; or 
‘‘(ii) a person— 
‘‘(I) who is located outside the 
United States or whose location can-
not be determined; and 
‘‘(II) who is a United States per-
son, as defined in section 101 of the 
Foreign Intelligence Surveillance Act 
of 1978 (50 U.S.C. 1801); 
‘‘(C) the term ‘covered record’ means a 
record or other information that— 
‘‘(i) pertains to a covered person; and 
‘‘(ii) is— 
‘‘(I) a record or other informa-
tion described in the matter preceding 
paragraph (1) of subsection (c); 
‘‘(II) the contents of a commu-
nication; or 
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‘‘(I) obtained from a provider of 
an electronic communication service to 
the public, a provider of a remote 
computing service, or an intermediary 
service provider; and 
‘‘(II) 
collected, 
processed, 
or 
shared in violation of a contract relat-
ing to the covered record; 
‘‘(F) the term ‘intelligence community’ has 
the meaning given that term in section 3 of the 
National Security Act of 1947 (50 U.S.C. 
3003); 
‘‘(G) the term ‘location information’ means 
information derived or otherwise calculated 
from the transmission or reception of a radio 
signal that reveals the approximate or actual 
geographic location of a customer, subscriber, 
or device; 
‘‘(H) the term ‘obtain in exchange for any-
thing of value’ means to obtain by purchasing, 
to receive in connection with services being pro-
vided for consideration, or to otherwise obtain 
in exchange for consideration, including an ac-
cess fee, service fee, maintenance fee, or licens-
ing fee; 
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‘‘(I) the term ‘online account’ means an 
online account with an electronic communica-
tion service to the public or remote computing 
service; 
‘‘(J) the term ‘pertain’, with respect to a 
person, means— 
‘‘(i) information that is linked to the 
identity of a person; or 
‘‘(ii) information— 
‘‘(I) that has been anonymized to 
remove links to the identity of a per-
son; and 
‘‘(II) that, if combined with other 
information, could be used to identify 
a person; and 
‘‘(K) the term ‘third party’ means a person 
who— 
‘‘(i) is not a governmental entity; and 
‘‘(ii) in connection with the collection, 
disclosure, obtaining, processing, or shar-
ing of the covered record at issue, was not 
acting as— 
‘‘(I) a provider of an electronic 
communication service to the public; 
or 
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‘‘(II) a provider of a remote com-
puting service. 
‘‘(2) LIMITATION.— 
‘‘(A) IN
GENERAL.—A law enforcement 
agency of a governmental entity and an element 
of the intelligence community may not obtain 
from a third party in exchange for anything of 
value a covered customer or subscriber record 
or any illegitimately obtained information. 
‘‘(B) INDIRECTLY
ACQUIRED
RECORDS 
AND INFORMATION.—The limitation under sub-
paragraph (A) shall apply without regard to 
whether the third party possessing the covered 
customer or subscriber record or illegitimately 
obtained information is the third party that ini-
tially obtained or collected, or is the third party 
that initially received the disclosure of, the cov-
ered customer or subscriber record or illegit-
imately obtained information. 
‘‘(3) LIMIT
ON
SHARING
BETWEEN
AGEN-
CIES.—An agency of a governmental entity that is 
not a law enforcement agency or an element of the 
intelligence community may not provide to a law en-
forcement agency of a governmental entity or an ele-
ment of the intelligence community a covered cus-
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tomer or subscriber record or illegitimately obtained 
information that was obtained from a third party in 
exchange for anything of value. 
‘‘(4) PROHIBITION ON USE AS EVIDENCE.—A 
covered customer or subscriber record or illegit-
imately obtained information obtained by or pro-
vided to a law enforcement agency of a governmental 
entity or an element of the intelligence community in 
violation of paragraph (2) or (3), and any evidence 
derived therefrom, may not be received in evidence 
in any trial, hearing, or other proceeding in or be-
fore 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. 
‘‘(5) MINIMIZATION PROCEDURES.— 
‘‘(A) IN GENERAL.—The Attorney General 
shall adopt specific procedures that are reason-
ably designed to minimize the acquisition and 
retention, and prohibit the dissemination, of in-
formation pertaining to a covered person that is 
acquired in violation of paragraph (2) or (3). 
‘‘(B) USE BY AGENCIES.—If a law enforce-
ment agency of a governmental entity or ele-
ment of the intelligence community acquires in-
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formation pertaining to a covered person in vio-
lation of paragraph (2) or (3), the law enforce-
ment agency of a governmental entity or ele-
ment of the intelligence community shall mini-
mize the acquisition and retention, and prohibit 
the dissemination, of the information in accord-
ance with the procedures adopted under sub-
paragraph (A).’’. 
SEC. 3. REQUIRED DISCLOSURE. 
Section 2703 of title 18, United States Code, is 
amended by adding at the end the following: 
‘‘(i) COVERED CUSTOMER OR SUBSCRIBER RECORDS 
AND ILLEGITIMATELY OBTAINED INFORMATION.— 
‘‘(1) DEFINITIONS.—In this subsection, the 
terms ‘covered customer or subscriber record’, ‘ille-
gitimately obtained information’, and ‘third party’ 
have the meanings given such terms in section 
2702(e). 
‘‘(2) LIMITATION.—Unless a governmental enti-
ty obtains an order in accordance with paragraph 
(3), the governmental entity may not require a third 
party to disclose a covered customer or subscriber 
record or any illegitimately obtained information if a 
court order would be required for the governmental 
entity to require a provider of remote computing 
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service or a provider of electronic communication 
service to the public to disclose such a covered cus-
tomer or subscriber record or illegitimately obtained 
information that is a record of a customer or sub-
scriber of the provider. 
‘‘(3) ORDERS.— 
‘‘(A) IN
GENERAL.—A court may only 
issue an order requiring a third party to dis-
close a covered customer or subscriber record or 
any illegitimately obtained information on the 
same basis and subject to the same limitations 
as would apply to a court order to require dis-
closure by a provider of remote computing serv-
ice or a provider of electronic communication 
service to the public of a record of a customer 
or subscriber of the provider. 
‘‘(B) STANDARD.—For purposes of sub-
paragraph (A), a court shall apply the most 
stringent standard under Federal statute or the 
Constitution of the United States that would be 
applicable to a request for a court order to re-
quire a comparable disclosure by a provider of 
remote computing service or a provider of elec-
tronic communication service to the public of a 
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record of a customer or subscriber of the pro-
vider.’’. 
SEC. 4. INTERMEDIARY SERVICE PROVIDERS. 
(a) DEFINITION.—Section 2711 of title 18, United 
States Code, is amended— 
(1) in paragraph (3), by striking ‘‘and’’ at the 
end; 
(2) in paragraph (4), by striking the period at 
the end and inserting ‘‘; and’’; and 
(3) by adding at the end the following: 
‘‘(5) the term ‘intermediary service provider’ 
means an entity or facilities owner or operator that 
directly or indirectly delivers, stores, or processes 
communications for or on behalf of a provider of 
electronic communication service to the public or a 
provider of remote computing service.’’. 
(b) PROHIBITION.—Section 2702(a) of title 18, 
United States Code, is amended— 
(1) in paragraph (1), by striking ‘‘and’’ at the 
end; 
(2) in paragraph (2), by striking ‘‘and’’ at the 
end; 
(3) in paragraph (3), by striking the period at 
the end and inserting ‘‘; and’’; and 
(4) by adding at the end the following: 
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