,,ii #aaeth ,,congress #ast ,session ,s4 #afga ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,july #bg1 #bjag ,mr4 ,hatch 7for himself1 ,mr4 ,coons1 and ,mr4 ,heller7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to amend title #ah1 ,united ,states ,code1 to safeguard data stored abroad1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,international ,communications ,privacy ,act4 #b4 ,congressional findings and declaration of purpose ,congress finds the following3 7#a7 ,the ,electronic ,communications ,privacy ,act of #aihf 7,public ,law #ii-ejh2 #ajj ,stat4 #ahdh7 7referred to in this section as ,,ecpa7 was intended to protect the privacy of electronic communications and related records stored with providers of electronic communications services and remote computing services1 while providing law enforcement agencies with the appropriate legal tools to compel production of information from such providers4 7#b7 ,,ecpa authorized governmental entities to obtain certain categories of communications data from providers using established1 pre-existing forms of process1 including search warrants and subpoenas4 ,it also created a new form of court order1 in section #bgjc7;d7 of title #ah1 ,united ,states ,code1 that governmental entities could use to obtain additional types of communications data4 7#c7 ,congress recognizes that there are often many interests that must be recognized when law enforcement agencies seek information from providers1 such as-- 7,a7 the legitimate needs of law enforcement agencies in the ,united ,states to obtain1 through lawful process1 electronic communications relevant to criminal investigations2 7,b7 the privacy interests of all customers of the services offered by electronic communication service providers2 and 7,c7 the legitimate interests of governments to protect the human rights1 civil liberties and privacy of their nationals and residents4 7#d7 ,therefore1 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 ,states1 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 disclosure4 #c4 ,extension and clarification of warrant requirement 7a7 ,in general ,chapter #aba of title #ah1 ,united ,states ,code1 is amended-- 7#a7 in section #bgjb7;a71 by amending paragraph 7#c7 to read as follows3 7#c7 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 #bgjc7;a71 or any record or other information pertaining to a subscriber or customer of such service4 2 7#b7 in section #bgjc-- 7,a7 by striking subsections 7a7 and 7b7 and inserting the following3 7a7 ,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 stored1 held1 or maintained by the provider1 regardless of where such contents may be in electronic storage or otherwise stored1 held1 or maintained1 only pursuant to a warrant issued using the procedures described in the ,federal ,rules of ,criminal ,procedure 7or1 in the case of a ,state court1 issued using ,state warrant procedures7 by a court of competent jurisdiction4 2 7,b7 by redesignating subsections 7c7 through 7g7 as subsections 7b7 through 7f71 respectively2 7,c7 in subsection 7c71 as so redesignated1 in the first sentence-- 7i7 by striking 7b7 or2 7ii7 by striking the contents of a wire or electronic communication1 or2 and 7iii7 by striking sought1 are and inserting sought are2 and 7,d7 by adding at the end the following3 7g7 ,application for warrant seeking contents of wire or electronic communication 7#a7 ,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 stored1 held1 or maintained by such provider shall state the nationality and location of the subscriber or customer whose communications are being sought1 unless the nationality and location cannot reasonably be determined4 7#b7 ,nationality and location not reasonably determined ,if the nationality and location of the subscriber or customer cannot reasonably be determined1 the application shall include a full and complete statement of the investigative steps taken to ascertain the nationality and location of the subscriber or customer4 7#c7 ,effective date 7,a7 ,in general ,the requirements of paragraphs 7#a7 and 7#b7 shall take effect #ad days after the date on which the ,attorney ,general first publishes a list of not less than #a qualifying foreign country under section #bgjc;,a7e77#c74 7,b7 ,applicability ,the requirements of paragraphs 7#a7 and 7#b7 shall not apply during any period of time in which no country is determined by the ,attorney ,general to be a qualifying foreign country4 7#d7 ,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-- 7,a7 by a governmental entity in connection with an investigation of a criminal offense for which that entity has jurisdiction2 or 7,b7 on behalf of a foreign government investigating a criminal offense for which that foreign government has jurisdiction4 7h7 ,rule of construction related to legal process ,nothing in this section1 section #bgjb1 or section #bgjc;,a 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 jury1 trial1 or civil discovery subpoena to-- 7#a7 require an originator1 addressee1 or intended recipient of an electronic communication to disclose the contents of the electronic communication to the governmental entity2 or 7#b7 require an entity that provides electronic communication services to the officers1 directors1 employees1 or agents of the entity 7for the purpose of carrying out their duties7 to disclose the contents of an electronic communication to or from an officer1 director1 employee1 or agent of the entity to a governmental entity1 if the electronic communication is held1 stored1 or maintained on an electronic communications system owned or operated by the entity4 2 7#c7 by inserting after section #bgjc the following3 #bgjc;,a4 ,special rule for communications of non-,united ,states subscriber or customer in qualifying foreign country 7a7 ,in general 7#a7 ,notice and opportunity to object ,except as provided in paragraph 7#b71 if a subscriber or customer whose communications are being sought is physically located outside the ,united ,states1 is not a ,united ,states person1 and is a national of or located in a qualifying foreign country1 the court may issue a warrant under section #bgjc for the contents of such communications only if-- 7,a7 the qualifying foreign country has been provided notice of the warrant application2 and 7,b7 7i7 the ,central ,authority of the qualifying foreign country has provided written certification that the disclosure may be had2 7ii7 #ad days have passed since the date on which the notice was provided under subparagraph 7,a7 and the ,central ,authority of the qualifying foreign country has not initiated a challenge under subsection 7c77#a72 or 7iii7 the ,central ,authority of the qualifying foreign country has initiated a challenge under subsection 7c77#a7 and the court has denied the challenge4 7#b7 ,nationality and location not reasonably determined ,paragraph 7#a7 shall not apply if-- 7,a7 the nationality and location of the subscriber or customer whose communications are being sought cannot reasonably be determined2 and 7,b7 the requirements of section #bgjc7;g77#b7 have been met4 7b7 ,contents of notice ,the notice required under subsection 7a77#a77;,a7 shall include-- 7#a7 the name1 nationality1 and location of the subscriber or customer whose communications are being sought2 7#b7 the name1 nationality1 and location of the service provider2 and 7#c7 a description of the events or offenses under investigation and how the communications sought are relevant and material to the investigation4 7c7 ,challenge to warrant seeking contents of wire or electronic communication 7#a7 ,in general ,upon a motion made promptly by a service provider or by the ,central ,authority of a qualifying foreign country1 a court receiving a warrant application under section #bgjc or issuing a warrant under section #bgjc 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 deny1 modify1 or quash the warrant1 as appropriate1 if the court finds that-- 7,a7 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 7a77#a77;,a71 unless the court issued an order under subsection 7d77#b77;,a7 waiving the requirements of subsection 7a77#a72 or 7,b7 7i7 disclosure would cause the service provider to violate the laws of a foreign country2 and 7ii7 based on the totality of the circumstances1 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 disclosure4 7#b7 ,comity analysis ,for purposes of making a determination under paragraph 7#a77;,b77ii71 the court shall take into account1 as appropriate-- 7,a7 the laws of the foreign country2 7,b7 the investigative interests of the governmental entity seeking to compel the disclosure2 7,c7 the interests of the foreign government in preventing the disclosure2 7,d7 the reasons1 if any1 for the objection of the foreign government2 7,e7 the penalties the provider or any employees of the provider would likely suffer as a result of violating the laws of the foreign country2 7,f7 the location and nationality of the subscriber or customer whose communications are being sought2 7,g7 the location and nationality of the victims2 7,h7 the location of the offense2 7,i7 the seriousness of the offense2 7,j7 the importance of the sought-after data to the investigation2 and 7,k7 the possibility of timely accessing the data through other means4 7#c7 ,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 subsection4 7d7 ,exceptions to #ad-;,day notice period 7#a7 ,expedited treatment 7,a7 ,in general ,a court may issue an order shortening the time period described in subsection 7a77#a77;,a7 to a time period not less than #g days1 if the court finds1 based on specific and articulable facts1 that such expedited treatment is necessary to avoid one or more of the adverse results identified in section #bgje7;a77#b74 7,b7 ,notice ,an order issued under subparagraph 7,a7 shall be served upon a representative of the ,central ,authority of the qualifying foreign country in a timely manner4 7#b7 ,delay of notice in exceptional circumstances 7,a7 ,delay of notice 7i7 ,in general ,a court receiving an application for a warrant under section #bgjc for the contents of a wire or electronic communication of a subscriber or customer who is physically located outside the ,united ,states1 who is not a ,united ,states person1 and who is a national of or located in a qualifying foreign country may issue an order waiving the requirements of subsection 7a77#a7 for #ij days1 if the court finds1 based on specific and articulable facts1 that providing notice of the warrant application to the qualifying foreign country would-- 7,i7 jeopardize national security2 or 7,,ii7 result in one or more of the adverse results identified in section #bgje7;a77#b7 because-- 7aa7 the potential criminal activity under investigation is sponsored or directed by the qualifying foreign country2 or 7bb7 there is reason to believe that1 notwithstanding the certification required under subsection 7e77#a77;,a77ii71 the qualifying foreign country would notify the subject of the investigation of the existence of the investigation1 the existence of the warrant application1 or both4 7ii7 ,issuance of warrant ,upon a finding described in clause 7i71 and following issuance of an order under clause 7i71 the court may issue the warrant forthwith4 7,b7 ,extension of order delaying notice ,an order waiving the requirements of subsection 7a77#a7 may be extended in #ij-;day increments until the investigation is completed4 ,any extension of an order under this subparagraph shall be made only upon a finding by the court1 based on specific and articulable facts1 that providing notice to the qualifying foreign country would lead to one or more of the adverse results identified in subparagraph 7,a77i77,,ii74 7,c7 ,effect of expiration or nonrenewal 7i7 ,in general ,upon expiration or nonrenewal of an order issued under subparagraph 7,a7 the court shall suspend the warrant4 7ii7 ,duration of suspension ,the suspension of a warrant under clause 7i7 shall remain in effect until-- 7,i7 the qualifying foreign country is provided notice of the warrant application2 and 7,,ii7 7aa7 the ,central ,authority of the qualifying foreign country provides written certification that the disclosure may be had2 7bb7 the end of the #ad-;day period beginning on the date on which the notice described in clause 7i7 was provided to the qualifying foreign country1 if during the #ad-;day period the ,central ,authority of the qualifying foreign country does not initiate a challenge under subsection 7c77#a72 or 7cc7 the ,central ,authority of the qualifying foreign country initiates a challenge under subsection 7c77#a7 and the court rules on the challenge4 7iii7 ,immediate lift of suspension ,for purposes of clause 7ii77,,ii77cc71 if the court denies the challenge1 the court shall immediately lift the suspension4 7e7 ,qualifying foreign country 7#a7 ,definition ,in this section1 the term qualifying foreign country means a foreign country that-- 7,a7 has certified to the ,attorney ,general that-- 7i7 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 jurisdiction2 and 7ii7 in the event it is provided notice of an application for a warrant under subsection 7a77#a77;,a71 upon request from the ,united ,states ,government it will not notify the subject of the investigation of the existence of the investigation1 the existence of the warrant application1 or both2 and 7,b7 the ,attorney ,general1 in consultation with the ,secretary of ,state1 has determined-- 7i7 affords robust substantive and procedural protections for privacy and civil liberties2 7ii7 adheres to applicable international human rights obligations and commitments2 7iii7 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 jurisdiction2 and 7iv7 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 applications4 7#b7 ,determination required ,not later than #fj days after the date on which the ,attorney ,general receives the certifications described in paragraph 7#a77;,a7 from a foreign country1 the ,attorney ,general1 in consultation with the ,secretary of ,state1 shall determine whether the country satisfies the requirements described in paragraph 7#a77;,b74 ,if the ,attorney ,general determines a country satisfies the requirements described in paragraph 7#a77;,b71 the ,attorney ,general shall add the country to the list of qualifying foreign countries under paragraph 7#c74 7#c7 ,list of qualifying foreign countries ,the ,attorney ,general shall-- 7,a7 publish and make publicly available a list of the countries that satisfy the requirements described in paragraph 7#a72 7,b7 add to the list published under subparagraph 7,a7 any country that comes into compliance with the requirements described in paragraph 7#a72 and 7,c7 remove from the list published under subparagraph 7,a7 any country that ceases to comply with the requirements described in paragraph 7#a74 7f7 ,rule of construction related to national security and intelligence operations ,nothing in this section shall be construed to affect1 impact1 or in any way impede terrorism investigations1 military operations1 or operations or activities under the ,foreign ,intelligence ,surveillance ,act of #aigh 7#ej ,u4,s4,c4 #ahja et seq474 2 7#d7 in section #bgjd7;a77#a71 by striking section #bgjc7;b77#b7 and inserting section #bgjc2 and 7#e7 in section #bgaa-- 7,a7 in paragraph 7#c77;,b7 by striking warrants2 and and inserting warrants22 7,b7 in paragraph 7#d7 by striking thereof4 and inserting thereof22 and 7,c7 by adding at the end the following3 7#e7 the term ,united ,states person means a citizen of the ,united ,states or an alien lawfully admitted for permanent residence 7as defined in section #aja7;a7 of the ,immigration and ,nationality ,act 7#h ,u4,s4,c4 #aaja7;a7772 7#f7 the term ,central ,authority means the agency1 department1 office1 or authority of a country responsible for administering law enforcement requests between that country and another country2 and 7#g7 the term national of a foreign country means a citizen1 a lawful resident1 or an entity organized under the laws of a foreign jurisdiction4 4 7b7 ,technical and conforming amendments ,title #ah1 ,united ,states ,code1 is amended-- 7#a7 in section #bbeh;,a7h77#a71 by striking section #bgjc7;f7 and inserting section #bgjc7;e72 7#b7 in section #bgje-- 7,a7 in subsection 7a77#a71 by striking section #bgjc7;b7 each place the term appears and inserting section #bgjc2 and 7,b7 in subsection 7b71 by striking section #bgjc7;b77#a7 and inserting section #bgjc2 7#c7 in section #bgjg-- 7,a7 in subsection 7a71 by striking section #bgjc7;e7 and inserting section #bgjc7;d72 and 7,b7 in subsection 7e77#a71 by striking section #bgjc7;f7 and inserting section #bgjc7;e72 and 7#d7 in section #cdhf7;a77#a77;,c77i71 by striking section #bgjc7;c77#b7 and inserting section #bgjc7;b77#b74 7c7 ,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 entity4 7d7 ,table of sections ,the table of sections for chapter #aba of title #ah1 ,united ,states ,code1 is amended by inserting after the item relating to section #bgjc the following3 #bgjc;,a4 ,special rule for communications of non-,united ,states subscriber or customer in qualifying foreign country4 4 #d4 ,mutual legal assistance treaty reforms 7a7 ,mutual legal assistance treaty transparency and efficiency 7#a7 ,in general ,not later than #ahj days after the date of enactment of this ,act1 the ,attorney ,general shall establish-- 7,a7 a form for use by a foreign government filing a mutual legal assistance treaty request 7referred to in this section as an ,,mlat request71 which shall-- 7i7 be made available on the website of the ,department of ,justice2 and 7ii7 require sufficient information and be susceptible for use by a foreign government to provide all the information necessary for the ,,mlat request2 7,b7 an online docketing system for all ,,mlat requests1 which shall allow a foreign government to track the status of an ,,mlat request filed by the foreign government2 and 7,c7 a process through which certified approval may be sought for disclosure pursuant to warrants issued under section #bgjc7;a74 7#b7 ,annual publication ,beginning not later than #a year after the date of enactment of this ,act1 and each year thereafter1 the ,attorney ,general shall publish on the website of the ,department of ,justice statistics on-- 7,a7 7i7 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 services2 and 7ii7 the average length of time taken by foreign governments to process the ,,mlat requests described in clause 7i72 7,b7 7i7 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 services2 and 7ii7 the average length of time taken by foreign governments to process the ,,mlat requests described in clause 7i72 and 7,c7 7i7 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 services2 and 7ii7 the average length of time taken by the ,department of ,justice to process the ,,mlat requests described in clause 7i74 7#c7 ,notice to department of state ,the ,attorney ,general shall notify the ,secretary of ,state not later than #g days after the date on which disclosure of electronic communications content to a foreign government is made pursuant to an ,,mlat request4 7b7 ,preservation of records ,the ,attorney ,general may issue a request pursuant to section #bgjc7;e7 of title #ah1 ,united ,states ,code1 as so redesignated by section #c1 upon receipt of an ,,mlat request that appears to be facially valid4 7c7 ,notification to provider of ,,mlat request ,when the ,attorney ,general makes use of the process provided in section #bgjc of title #ah1 ,united ,states ,code1 to obtain information from an electronic communications provider or a remote computing provider based on an ,,mlat request1 the ,attorney ,general shall notify that provider in writing that the request has been made pursuant to a mutual legal assistance treaty4 #e4 ,sense of ,congress ,it is the sense of ,congress that-- 7#a7 data localization requirements imposed by foreign governments on data providers are-- 7,a7 incompatible with the borderless nature of the ,internet2 7,b7 an impediment to online innovation2 and 7,c7 unnecessary to meet the needs of law enforcement2 and 7#b7 the ,department of ,justice1 the ,department of ,state1 and the ,united ,states ,trade ,representatives should pursue open data flow policies with foreign nations4