II 117th CONGRESS 1st Session S. 3231 IN THE SENATE OF THE UNITED STATES November 18, 2021 Mr. Wyden (for himself and Ms. Lummis ) 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 require law enforcement officials to obtain a warrant before accessing data stored in cars, and for other purposes.

1. Short title This Act may be cited as the Closing the Warrantless Digital Car Search Loophole Act of 2021 . 2. Vehicle data (a) In general Part I of title 18, United States Code, is amended by adding at the end the following: 124 Accessing vehicle data. Sec. 2730. Definitions. 2731. Prohibition on access to vehicle data. 2732. Prohibition on use of acquired information as evidence. 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. 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. 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 .