Title: International Communications Privacy Act
Policy area: Crime and Law Enforcement

Summary:
International Communications Privacy Act
This bill establishes a framework governing law enforcement access to electronic communications data, regardless of where the data is stored.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 1671 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                S. 1671

To amend title 18, United States Code, to safeguard data stored abroad, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 27, 2017

   Mr. Hatch (for himself, Mr. Coons, and Mr. Heller) introduced the 
 following bill; which was read twice and 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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``International Communications 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) (referred to in this 
        section as ``ECPA'') was intended to protect the privacy of 
        electronic communications and related records stored with 
        providers of electronic communications services and remote 
        computing 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 
        governmental 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 providers, such as--
                    (A) the legitimate needs of law enforcement 
                agencies in the United States to obtain, through lawful 
                process, electronic communications relevant to criminal 
                investigations;
                    (B) the privacy interests of all customers of the 
                services offered by electronic communication 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 authorizes the use of search warrants 
        to compel production of that information only if the foreign 
        government 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 government in preventing the disclosure.

SEC. 3. EXTENSION AND CLARIFICATION OF WARRANT REQUIREMENT.

    (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 not knowingly divulge 
        to any governmental entity the contents of any communication 
        described in section 2703(a), or any record or other 
        information pertaining to a subscriber or customer of such 
        service.'';
            (2) in section 2703--
                    (A) by striking subsections (a) and (b) and 
                inserting the following:
    ``(a) Required Disclosure.--A governmental entity 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 otherwise stored, 
held, or maintained, only pursuant to 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.'';
                    (B) by redesignating subsections (c) through (g) as 
                subsections (b) through (f), respectively;
                    (C) in subsection (c), as so redesignated, in the 
                first sentence--
                            (i) by striking ``(b) or'';
                            (ii) by striking ``the contents of a wire 
                        or electronic communication, or''; and
                            (iii) by striking ``sought, are'' and 
                        inserting ``sought are''; and
                    (D) by adding at the end the following:
    ``(g) Application for Warrant Seeking Contents of Wire or 
Electronic Communication.--
            ``(1) In general.--An application for a warrant under this 
        section seeking the contents of a wire or electronic 
        communication of a subscriber or customer of an electronic 
        communication service provider 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 reasonably determined.--
        If the nationality and location 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.--
                    ``(A) In general.--The requirements of paragraphs 
                (1) and (2) shall take effect 14 days after the date on 
                which the Attorney General 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 during 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 contents of a wire or 
        electronic communication only if the warrant application was 
        made--
                    ``(A) by a governmental entity in connection with 
                an investigation of a criminal offense for which that 
                entity has jurisdiction; or
                    ``(B) on behalf of a foreign government 
                investigating 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 section 2703A shall be construed to 
limit the authority of a governmental entity to use an administrative 
subpoena authorized under a Federal or State law or to use a Federal or 
State grand jury, trial, or civil discovery subpoena to--
            ``(1) require an originator, addressee, or intended 
        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, employees, 
        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 governmental entity, if the electronic 
        communication is held, stored, or maintained on an electronic 
        communications system owned or operated by the entity.'';
            (3) by inserting after section 2703 the following:
``Sec. 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 is physically located outside 
        the United States, is not a United States person, and is a 
        national of or located 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 qualifying 
                foreign country has provided written certification that 
                the disclosure may be had;
                    ``(ii) 14 days have passed since the date on which 
                the notice was provided under subparagraph (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 qualifying 
                foreign country has initiated a challenge under 
                subsection (c)(1) and the court has denied the 
                challenge.
            ``(2) Nationality and location not reasonably determined.--
        Paragraph (1) shall not apply if--
                    ``(A) the nationality and location of the 
                subscriber or customer whose communications are being 
                sought cannot reasonably be determined; 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 investigation.
    ``(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 Authority of a qualifying foreign 
        country, a court receiving a warrant application under section 
        2703 or issuing a warrant under section 2703 for the contents 
        of a wire or electronic communication of a subscriber or 
        customer who is physically located outside the United States 
        and who is not a United States person shall deny, modify, or 
        quash the warrant, as appropriate, if the court finds that--
                    ``(A) the subscriber or customer is a national of 
                or located in a qualifying foreign country and the 
                qualifying foreign country was not provided notice of 
                the warrant application in accordance with subsection 
                (a)(1)(A), unless the court issued an order under 
                subsection (d)(2)(A) waiving the requirements of 
                subsection (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 circumstances, 
                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 
                country outweigh the investigative interests of the 
                governmental entity seeking to compel the disclosure.
            ``(2) Comity analysis.--For purposes of making 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 
                governmental entity seeking to compel the disclosure;
                    ``(C) the interests of the foreign government in 
                preventing the disclosure;
                    ``(D) the reasons, if any, for the objection of the 
                foreign government;
                    ``(E) the penalties the provider or any employees 
                of the provider would likely suffer as a result of 
                violating the laws of the foreign country;
                    ``(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
                    ``(K) the possibility of timely accessing the data 
                through other means.
            ``(3) Disclosure obligations during pendency of 
        challenge.--A service provider shall not be obligated to 
        produce the contents of the communications 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 treatment 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 representative of the 
                Central Authority of the qualifying foreign country in 
                a timely manner.
            ``(2) Delay of notice in exceptional circumstances.--
                    ``(A) Delay of notice.--
                            ``(i) In general.--A court receiving an 
                        application for a warrant under section 2703 
                        for the contents of a wire or electronic 
                        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 
                        country 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 
                                        believe that, notwithstanding 
                                        the certification required 
                                        under subsection (e)(1)(A)(ii), 
                                        the qualifying foreign country 
                                        would notify the subject of the 
                                        investigation of the existence 
                                        of the investigation, the 
                                        existence of the warrant 
                                        application, or both.
                            ``(ii) Issuance of warrant.--Upon a finding 
                        described in clause (i), and following issuance 
                        of an order under clause (i), the court may 
                        issue the warrant forthwith.
                    ``(B) Extension of order delaying notice.--An order 
                waiving the requirements of subsection (a)(1) may be 
                extended in 90-day increments until the investigation 
                is completed. Any extension of an order under this 
                subparagraph 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 adverse results 
                identified in subparagraph (A)(i)(II).
                    ``(C) Effect of expiration or nonrenewal.--
                            ``(i) In general.--Upon expiration or 
                        nonrenewal of an order issued under 
                        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 
                                country is provided notice of the 
                                warrant application; and
                                    ``(II)(aa) the Central Authority of 
                                the qualifying foreign country provides 
                                written certification that the 
                                disclosure may be had;
                                    ``(bb) the end of the 14-day period 
                                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 qualifying 
                                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.
                            ``(iii) Immediate lift of suspension.--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 procedural 
                        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 
                        subsection (a)(1)(A), upon request from the 
                        United States Government it will not notify the 
                        subject of the investigation of the 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 international 
                        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 providers or 
                        remote computing service providers subject to 
                        its jurisdiction; and
                            ``(iv) will not unnecessarily impede 
                        legitimate criminal investigations or otherwise 
                        undermine the foreign relations of the United 
                        States as a result of receiving notice of 
                        warrant applications and the opportunity to 
                        initiate a challenge to such applications.
            ``(2) Determination required.--Not later than 60 days after 
        the date on which the Attorney General receives the 
        certifications described in paragraph (1)(A) from a foreign 
        country, the Attorney General, in consultation with the 
        Secretary of State, shall determine whether the country 
        satisfies the requirements described in paragraph (1)(B). If 
        the Attorney General determines a country satisfies the 
        requirements described in paragraph (1)(B), the Attorney 
        General shall add the country to the list of qualifying foreign 
        countries under paragraph (3).
            ``(3) List of qualifying foreign countries.--The Attorney 
        General shall--
                    ``(A) publish and make publicly available a list of 
                the countries that satisfy the requirements described 
                in paragraph (1);
                    ``(B) add to the list published under subparagraph 
                (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 paragraph (1).
    ``(f) Rule of Construction Related to National Security and 
Intelligence Operations.--Nothing in this section shall be construed to 
affect, impact, or in any way impede terrorism investigations, military 
operations, or operations or activities under the Foreign 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 ``warrants; 
                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 admitted for permanent 
        residence (as defined in section 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 requests between that country and 
        another country; and
            ``(7) the term `national of a foreign country' means a 
        citizen, a lawful resident, or an entity organized 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 ``section 
                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 ``section 
                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 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 Transparency 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 government filing a 
                mutual legal assistance treaty request (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 government to 
                        provide all the information necessary for the 
                        MLAT request;
                    (B) an online docketing system for all MLAT 
                requests, which shall allow a foreign government to 
                track the status of an MLAT request filed by the 
                foreign government; and
                    (C) a process through which certified approval 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 governments for the 
                purpose of obtaining the contents of an electronic 
                communication or other information 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 requests described in 
                clause (i);
                    (B)(i) the number of MLAT requests made to the 
                Department of Justice by foreign governments for the 
                purpose of obtaining the contents of an electronic 
                communication or other information 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 requests described in 
                clause (i); and
                    (C)(i) the number of MLAT requests made to the 
                Department of Justice by foreign governments for the 
                purpose of obtaining the contents of an electronic 
                communication or other information 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 requests 
                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 disclosure of electronic communications 
        content to a foreign government is made pursuant to an MLAT 
        request.
    (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 section 3, upon receipt of an MLAT request that 
appears to be facially valid.
    (c) Notification to Provider of MLAT Request.--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 
communications 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 nature 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 Representatives should pursue open data 
        flow policies with foreign nations.
                                 <all>