Closing the Warrantless Digital Car Search Loophole Act of 2021
Bill: S.3231 | Sponsor: Sen. Wyden, Ron (D-OR)
Policy area: Crime and Law Enforcement

Summary:
Closing the Warrantless Digital Car Search Loophole Act of 2021
This bill generally prohibits investigative and law enforcement officers from accessing vehicle data (onboard and telematics data in a noncommercial vehicle, such as navigation data and data captured by onboard sensors or cameras) unless pursuant to a warrant. Vehicle data acquired in violation of this bill is inadmissible as evidence in any trial, hearing, or other legal proceeding.

To amend title 18, United States Code, to require law enforcement 
officials to obtain a warrant before accessing data stored in cars, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Closing the Warrantless Digital Car 
Search Loophole Act of 2021''.

SEC. 2. VEHICLE DATA.

    (a) In General.--Part I of title 18, United States Code, is amended 
by adding at the end the following:

                 ``CHAPTER 124--ACCESSING VEHICLE DATA.

``Sec.
``2730. Definitions.
``2731. Prohibition on access to vehicle data.
``2732. Prohibition on use of acquired information as evidence.
``Sec. 2730. Definitions
    ``In this chapter:
            ``(1) Access.--The term `access'--
                    ``(A) means any retrieval of covered vehicle data, 
                regardless of--
                            ``(i) whether the data is obtained as the 
                        information is being produced or from digital 
                        storage; and
                            ``(ii) where the vehicle data is stored or 
                        transmitted, including by wire or radio; and
                    ``(B) does not include data covered by chapter 119 
                of this title or section 104 of the Foreign 
                Intelligence Surveillance Act of 1978 (50 U.S.C. 1804).
            ``(2) Consent.--The term `consent'--
                    ``(A) means an affirmative, express, and voluntary 
                agreement that--
                            ``(i) states that the person providing the 
                        consent is providing consent to a government 
                        official to access the digital contents, access 
                        credential, or online account information, or 
                        other information being sought;
                            ``(ii) specifies the type of content, 
                        access credential, or online account 
                        information the person is providing access to;
                            ``(iii) specifies the time period of the 
                        covered vehicle data to be accessed;
                            ``(iv) informs the person providing consent 
                        that consent is optional and that the 
                        government official attempting to obtain 
                        consent must otherwise acquire a warrant if 
                        consent is not obtained;
                            ``(v) does not involve sanctions or the 
                        threat of sanctions for withholding consent; 
                        and
                            ``(vi) uses clear, simple, and 
                        comprehensible language that is presented in a 
                        way that is accessible to the person providing 
                        consent; and
                    ``(B) does not include consent obtained through 
                agreement to a generic privacy policy.
            ``(3) Covered vehicle data.--The term `covered vehicle 
        data'--
                    ``(A) means all onboard and telematics data 
                generated by, processed by, or stored on a 
                noncommercial vehicle using computing, storage and 
                communication systems installed, attached to, or 
                carried in the vehicle, including diagnostic data, 
                entertainment system data, navigation data, images or 
                data captured by onboard sensors, or cameras, including 
                images or data used to support automated features or 
                autonomous driving, internet access, and communication 
                to and from vehicle occupants;
                    ``(B) includes data gathered by event data 
                recorders; and
                    ``(C) does not include--
                            ``(i) automotive software installed by the 
                        manufacturer, as defined by applicable industry 
                        standards or regulations;
                            ``(ii) any data subject to chapter 119 of 
                        this title or section 104 of the Foreign 
                        Intelligence Surveillance Act of 1978 (50 
                        U.S.C. 1804); or
                            ``(iii) data that is collected from outside 
                        the vehicle, including speed data and 
                        geolocation data, for purposes of traffic, law 
                        enforcement, or toll collection.
            ``(4) Event data recorder.--The term `event data recorder' 
        has the meaning given the term in section 563.5 of title 49, 
        Code of Federal Regulations (as in effect on March 5, 2019).
            ``(5) Investigative or law enforcement officer.--The term 
        `investigative or law enforcement officer' means any officer of 
        the United States or of a State or political subdivision 
        thereof and any Tribal justice official, who is empowered by 
        law to execute searches, to seize evidence, or to make arrests 
        for a violation of Federal or State law.
            ``(6) Noncommercial vehicle.--The term `noncommercial 
        vehicle' has the meaning given the term `non-CMV' in section 
        383.5 of title 49, Code of Federal Regulations.
            ``(7) State.--The term `State' means any State of the 
        United States, the District of Columbia, and any territory or 
        possession of the United States.
            ``(8) Vehicle operator.--The term `vehicle operator' 
        means--
                    ``(A) a person who controls the operation of a 
                vehicle at the time consent is sought; and
                    ``(B) with respect to a vehicle that is not 
                classified as a highly autonomous vehicle by the 
                Secretary of Transportation, the driver of the vehicle.
``Sec. 2731. Prohibition on access to vehicle data
    ``(a) In General.--Except as provided in subsection (b), an 
investigative or law enforcement officer may not access covered vehicle 
data unless pursuant to a warrant issued in accordance with the 
procedures described in rule 41 of 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, or as otherwise 
provided in this chapter or sections 104 and 303 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1804, 1823).
    ``(b) Exceptions.--
            ``(1) Consent.--
                    ``(A) In general.--An investigative or law 
                enforcement officer may access covered vehicle data 
                if--
                            ``(i) the vehicle operator provides prior 
                        consent to such access; and
                            ``(ii) no passenger 14 years of age or 
                        older objects to the access.
                    ``(B) Vehicle owner.--If the vehicle operator 
                cannot be located with reasonable effort, the vehicle 
                owner or, in the case of a leased vehicle, the lessee, 
                may provide consent under this paragraph.
                    ``(C) Unlawful possession.--No individual may 
                provide or withhold consent under this paragraph or 
                object to another individual accessing covered vehicle 
                data if the individual--
                            ``(i) is the vehicle operator who is in 
                        unlawful possession of the vehicle; or
                            ``(ii) is a passenger who unlawfully 
                        obtained access to the vehicle.
                    ``(D) Oral consent.--Consent provided under this 
                paragraph shall be in writing unless--
                            ``(i) the person providing the consent 
                        requests that the consent be made orally; and
                            ``(ii) the request for consent and the 
                        consent are recorded.
                    ``(E) Consent of vehicle operator.--If the vehicle 
                operator is not the owner of the vehicle and provides 
                consent under this paragraph, the consent is valid only 
                with respect to covered vehicle data generated during 
                the lawful possession and use of the vehicle by the 
                vehicle operator.
            ``(2) Emergency.--
                    ``(A) In general.--An investigative or law 
                enforcement officer, the Attorney General, the Deputy 
                Attorney General, the Associate Attorney General, or 
                the principal prosecuting attorney of any State or 
                subdivision thereof acting pursuant to a statute of 
                that State, may access covered vehicle data if--
                            ``(i) such officer reasonably determines 
                        that an emergency situation exists that--
                                    ``(I) involves immediate danger of 
                                death or serious physical injury to any 
                                person; and
                                    ``(II) requires access to covered 
                                vehicle data before such officer can, 
                                with due diligence, obtain a warrant;
                            ``(ii) there are grounds upon which a 
                        warrant could be granted to authorize such 
                        access; and
                            ``(iii) an application for a warrant 
                        approving such access is submitted to a court 
                        within 48 hours after the access has occurred 
                        or begins to occur.
                    ``(B) Denial.--If an application for a warrant 
                submitted pursuant to subparagraph (A)(iii) is denied, 
                any covered vehicle data accessed under this paragraph 
                shall be treated as having been obtained in violation 
                of this chapter.
            ``(3) Event data recorder for motor vehicle safety.--In 
        addition to the exceptions in paragraphs (1) and (2), data 
        recorded or transmitted by an event data recorder may be 
        accessed from a noncommercial vehicle if authorized by 
        paragraph (3), (4), or (5) of section 24302(b) of the Driver 
        Privacy Act of 2015 (49 U.S.C. 30101 note).
            ``(4) Rule of construction.--Nothing in this section shall 
        be interpreted to require the transmission or storage of data 
        that is not otherwise transmitted or stored, or the retrieval 
        of data that is not generally retrievable.
``Sec. 2732. Prohibition on use of acquired information as evidence
    ``(a) In General.--If any covered vehicle data has been acquired in 
violation of this chapter, no part of such 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) Probable Cause.--No data described in section 2731(b)(3) may 
be used to establish probable cause.''.
    (b) Technical and Conforming Amendments.--
            (1) Driver privacy act of 2015.--Section 24302 of the 
        Driver Privacy Act of 2015 (49 U.S.C. 30101 note) is amended--
                    (A) in subsection (b), in the matter preceding 
                paragraph (1), by striking ``Data'' and inserting 
                ``Except as provided in subsection (c), data''; and
                    (B) by adding at the end the following:
    ``(c) Investigative or Law Enforcement Officers.--An investigative 
or law enforcement officer may only access or retrieve data recorded or 
transmitted by an event data recorder described in subsection (a) in 
accordance with chapter 124 of title 18, United States Code.''.
            (2) Table of chapters.--The table of chapters for part 1 of 
        title 18, United States Code, is amended by adding at the end 
        the following:

``124. Accessing vehicle data...............................    2730''.
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