Title: Email Privacy Act
Policy area: Crime and Law Enforcement

Summary:
Email Privacy Act
This bill modifies provisions restricting an electronic communication service (ECS) or remote communication service (RCS) provider from disclosing the contents of a wire or electronic communication that is in electronic storage with or otherwise stored, held, or maintained by that service.
Additionally, it revises the standards for the government to compel an ECS or RCS provider to disclose the contents of a wire or electronic communication or records, or inform of the recipient of the existence of a warrant, court order, subpoena, or request, unless the government obtains an order for delayed notification (i.e., an order directing a service provider to delay notifying anyone of the existence of a warrant, order, subpoena, or request for a specified period of time).
The bill revises the process for obtaining a delayed notification order and lengthens the maximum duration of such an order.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8961 Introduced in House (IH)]

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116th CONGRESS
  2d Session
                                H. R. 8961

     To amend title 18, United States Code, to update the privacy 
protections for electronic communications information that is stored by 
  third-party service providers in order to protect consumer privacy 
 interests while meeting law enforcement needs, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 14, 2020

Mr. Nadler (for himself, Mr. Sensenbrenner, Ms. DelBene, and Mr. Rodney 
Davis of Illinois) introduced the following bill; which was referred to 
                     the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
     To amend title 18, United States Code, to update the privacy 
protections for electronic communications information that is stored by 
  third-party service providers in order to protect consumer privacy 
 interests while meeting law enforcement needs, 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 ``Email Privacy Act''.

SEC. 2. VOLUNTARY DISCLOSURE CORRECTIONS.

    (a) In General.--Section 2702 of title 18, United States Code, is 
amended--
            (1) in subsection (a)--
                    (A) in paragraph (1)--
                            (i) by striking ``divulge'' and inserting 
                        ``disclose''; and
                            (ii) by striking ``while in electronic 
                        storage by that service'' and inserting ``that 
                        is in electronic storage with or otherwise 
                        stored, held, or maintained by that service'';
                    (B) in paragraph (2)--
                            (i) by striking ``to the public'';
                            (ii) by striking ``divulge'' and inserting 
                        ``disclose''; and
                            (iii) by striking ``which is carried or 
                        maintained on that service'' and inserting 
                        ``that is stored, held, or maintained by that 
                        service''; and
                    (C) in paragraph (3)--
                            (i) by striking ``divulge'' and inserting 
                        ``disclose''; and
                            (ii) by striking ``a provider of'' and 
                        inserting ``a person or entity providing'';
            (2) in subsection (b)--
                    (A) in the matter preceding paragraph (1), by 
                inserting ``wire or electronic'' before 
                ``communication'';
                    (B) by amending paragraph (1) to read as follows:
            ``(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 amending paragraph (3) to read as follows:
            ``(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;'';
            (3) in subsection (c) by inserting ``wire or electronic'' 
        before ``communications'';
            (4) in each of subsections (b) and (c), by striking 
        ``divulge'' and inserting ``disclose''; and
            (5) in subsection (c), by amending paragraph (2) to read as 
        follows:
            ``(2) with the lawful consent of the subscriber or 
        customer;''.

SEC. 3. AMENDMENTS TO REQUIRED DISCLOSURE SECTION.

    Section 2703 of title 18, United States Code, is amended--
            (1) by striking subsections (a) through (c) and inserting 
        the following:
    ``(a) Contents of Wire or Electronic Communications in Electronic 
Storage.--Except as provided in subsections (i) and (j), a governmental 
entity may require the disclosure by a provider of electronic 
communication service of the contents of a wire or electronic 
communication that is in electronic storage with or otherwise stored, 
held, or maintained by that service only if the governmental entity 
obtains 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) that--
            ``(1) is issued by a court of competent jurisdiction; and
            ``(2) may indicate the date by which the provider must make 
        the disclosure to the governmental entity.
In the absence of a date on the warrant indicating the date by which 
the provider must make disclosure to the governmental entity, the 
provider shall promptly respond to the warrant.
    ``(b) Contents of Wire or Electronic Communications in a Remote 
Computing Service.--
            ``(1) In general.--Except as provided in subsections (i) 
        and (j), a governmental entity may require the disclosure by a 
        provider of remote computing service of the contents of a wire 
        or electronic communication that is stored, held, or maintained 
        by that service only if the governmental entity obtains 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) that--
                    ``(A) is issued by a court of competent 
                jurisdiction; and
                    ``(B) may indicate the date by which the provider 
                must make the disclosure to the governmental entity.
        In the absence of a date on the warrant indicating the date by 
        which the provider must make disclosure to the governmental 
        entity, the provider shall promptly respond to the warrant.
            ``(2) Applicability.--Paragraph (1) is applicable with 
        respect to any wire or electronic communication that is stored, 
        held, or maintained by the provider--
                    ``(A) on behalf of, and received by means of 
                electronic transmission from (or created by means of 
                computer processing of communication received by means 
                of electronic transmission from), a subscriber or 
                customer of such remote computing service; and
                    ``(B) solely for the purpose of providing storage 
                or computer processing services to such subscriber or 
                customer, if the provider is not authorized to access 
                the contents of any such communications for purposes of 
                providing any services other than storage or computer 
                processing.
    ``(c) Records Concerning Electronic Communication Service or Remote 
Computing Service.--
            ``(1) In general.--Except as provided in subsections (i) 
        and (j), a governmental entity may require the disclosure by a 
        provider of electronic communication service or remote 
        computing service of a record or other information pertaining 
        to a subscriber to or customer of such service (not including 
        the contents of wire or electronic communications), only--
                    ``(A) if a governmental entity obtains 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) that--
                            ``(i) is issued by a court of competent 
                        jurisdiction directing the disclosure; and
                            ``(ii) may indicate the date by which the 
                        provider must make the disclosure to the 
                        governmental entity;
                    ``(B) if a governmental entity obtains a court 
                order directing the disclosure under subsection (d);
                    ``(C) with the lawful consent of the subscriber or 
                customer; or
                    ``(D) as otherwise authorized in paragraph (2).
            ``(2) Subscriber or customer information.--A provider of 
        electronic communication service or remote computing service 
        shall, in response to an administrative subpoena authorized by 
        Federal or State statute, a grand jury, trial, or civil 
        discovery subpoena, or any means available under paragraph (1), 
        disclose to a governmental entity the--
                    ``(A) name;
                    ``(B) address;
                    ``(C) local and long distance telephone connection 
                records, or records of session times and durations;
                    ``(D) length of service (including start date) and 
                types of service used;
                    ``(E) telephone or instrument number or other 
                subscriber or customer number or identity, including 
                any temporarily assigned network address; and
                    ``(F) means and source of payment for such service 
                (including any credit card or bank account number),
        of a subscriber or customer of such service.
            ``(3) Notice not required.--A governmental entity that 
        receives records or information under this subsection is not 
        required to provide notice to a subscriber or customer.'';
            (2) in subsection (d)--
                    (A) by striking ``(b) or'';
                    (B) by striking ``the contents of a wire or 
                electronic communication, or'';
                    (C) by striking ``sought,'' and inserting 
                ``sought''; and
                    (D) by striking ``section'' and inserting 
                ``subsection''; and
            (3) by adding at the end the following:
    ``(h) Notice.--Except as provided in section 2705, a provider of 
electronic communication service or remote computing service may notify 
a subscriber or customer of a receipt of a warrant, court order, 
subpoena, or request under subsection (a), (b), (c), or (d) of this 
section.
    ``(i) Rule of Construction Related to Legal Process.--Nothing in 
this section or in section 2702 shall limit the 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 a 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.
    ``(j) Rule of Construction Related to Congressional Subpoenas.--
Nothing in this section or in section 2702 shall limit the power of 
inquiry vested in the Congress by article I of the Constitution of the 
United States, including the authority to compel the production of a 
wire or electronic communication (including the contents of a wire or 
electronic communication) that is stored, held, or maintained by a 
person or entity that provides remote computing service or electronic 
communication service.''.

SEC. 4. DELAYED NOTICE.

    Section 2705 of title 18, United States Code, is amended to read as 
follows:
``Sec. 2705. Delayed notice
    ``(a) In General.--A governmental entity acting under section 2703 
may apply to a court for an order directing a provider of electronic 
communication 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.
    ``(b) Determination.--A court shall grant a request for an order 
made under subsection (a) for delayed notification of up to 180 days if 
the court determines that there is reason to believe that notification 
of the existence of the warrant, order, subpoena, or other directive 
will likely result in--
            ``(1) endangering the life or physical safety of an 
        individual;
            ``(2) flight from prosecution;
            ``(3) destruction of or tampering with evidence;
            ``(4) intimidation of potential witnesses; or
            ``(5) otherwise seriously jeopardizing an investigation or 
        unduly delaying a trial.
    ``(c) Extension.--Upon request by a governmental entity, a court 
may grant one or more extensions, for periods of up to 180 days each, 
of an order granted in accordance with subsection (b).''.

SEC. 5. 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 of title 18 (commonly known as the ``Wiretap 
        Act''), the Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1801 et seq.), or any other provision of Federal law not 
        specifically amended by this Act; or
            (2) 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 the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), chapter 119 
        of title 18 (commonly known as the ``Wiretap Act''), or any 
        other provision of Federal law not specifically amended by this 
        Act.
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