Purpose: In the nature of a substitute.

IN THE SENATE OF THE UNITED STATES---112th Cong., 2d Sess.

H. R. 2471

To amend section 2710 of title 18, United States Code, to clarify that a video tape service provider may obtain a consumer’s informed, written consent on an ongoing basis and that consent may be obtained through the Internet.  An Act to amend section 2710 of title 18, United States Code, to clarify that a video tape service provider may obtain a consumer’s informed, written consent on an ongoing basis, to improve the provisions of title 18 relating to the privacy of electronic communications, and for other purposes.

Referred to the Committee on ____ and ordered to be printed

Ordered to lie on the table and to be printed

AMENDMENT IN THE NATURE OF A SUBSTITUTE intended to be proposed by Mr. LEAHY

Viz:

Strike all after the enacting clause and insert the following:

TITLE I---VIDEO PRIVACY PROTECTION

SEC. 101. SHORT TITLE .

This title may be cited as the "Video Privacy Protection Act Amendments Act of 2012".

SEC. 102. VIDEO PRIVACY PROTECTION ACT AMENDMENT.

Section 2710(b)(2) of title 18, United States Code, is amended by striking subparagraph (B) and inserting the following:

(B) to any person with the informed, written consent (including through an electronic means using the Internet) of the consumer that---

(i) is in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer;

	TLJ Note: these changes were made by Sen. Feinstein's amendment.

(ii)(I) is given at the election of the consumer---

(I) is given at time the disclosure is sought; or

(II) is given in advance for a set period of time or until consent is withdrawn by the consumer; and

(II) is given in advance for a set period of time, not to exceed 1 year or until consent is withdrawn by the consumer, which ever is sooner; and

(iii) the video tape service provider has provided an opportunity, in a clear and conspicuous manner, for the consumer to withdraw on a case-by-case basis or to withdraw for ongoing disclosures, at the consumer’s election;

TITLE II---ELECTRONIC COMMUNICATIONS PRIVACY

SEC. 201. SHORT TITLE.

This title may be cited as the "Electronic Communications Privacy Act Amendments Act of 2012".

SEC. 202. CONFIDENTIALITY OF ELECTRONIC COMMUNICATIONS.

Section 2702(a)(3) of title 18, United States Code, is amended 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.

SEC. 203. ELIMINATION OF 180-DAY RULE; SEARCH WARRANT REQUIREMENT; REQUIRED DISCLOSURE OF CUSTOMER RECORDS.

(a) IN GENERAL.---Section 2703 of title 18, United States Code, is amended by striking subsections (a), (b), and (c) and inserting the following:

(a) CONTENTS OF WIRE OR ELECTRONIC COMMUNICATIONS.---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 in electronic storage with or otherwise stored, held, or maintained by the provider 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 is issued by a court of competent jurisdiction directing the disclosure.

	TLJ Note: The words "10 business days" were inserted by the manager's amendment. The words ", in the case of a law enforcement agency, or not later than 3 days, in the case of any other governmental entity," were added by the Cornyn Lee amendment.
	TLJ Note: The Grassley amendment, which the SJC rejected by a vote of 6-11, would have amended subsection (b) to add an exception to the warrant requirement for the purpose of investigating crimes "involving" certain enumerated activities.

(b) NOTICE.---Except as provided in section 2705, not later than 3 days 10 business days, in the case of a law enforcement agency, or not later than 3 days, in the case of any other governmental entity, after a governmental entity receives the contents of a wire or electronic communication of a subscriber or customer from a provider of electronic communication service or remote computing service under subsection (a), the governmental entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, as specified by the court issuing the warrant, the subscriber or customer---

(1) a copy of the warrant; and

(2) a notice that includes the information referred to in clause (i) and (ii) of section 2705(a)(4)(B).

(c) RECORDS CONCERNING ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE.---

(1) IN GENERAL.---Subject to paragraph (2), a governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber or customer of the provider or service (not including the contents of communications), only if the governmental entity---

(A) 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 is issued by a court of competent jurisdiction directing the disclosure;

(B) obtains a court order directing the disclosure under subsection (d);

(C) has the consent of the subscriber or customer to the disclosure; or

(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of the provider or service that is engaged in telemarketing (as defined in section 2325).

	TLJ Note: These four changes were made by the manager's amendment.

(2) SUBPOENAS INFORMATION TO BE DISCLOSED.---A provider of electronic communication service or remote computing service shall, in response to an administrative subpoena authorized by Federal or State statute or statute, a Federal or State grand jury or , trial subpoena , or civil discovery subpoena, or any means authorized 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 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.

(b) TECHNICAL AND CONFORMING AMENDMENTS.---Section 2703(d) of title 18, United States Code, is amended---

(1) by striking "A court order for disclosure under subsection (b) or (c)"’ and inserting "‘A court order for disclosure under subsection (c)"’; and

(2) by striking "the contents of a wire or electronic communication, or".

SEC. 204. DELAYED NOTICE.

Section 2705 of title 18, United States Code, is amended to read as follows:

§ 2705. Delayed notice

(a) DELAY OF NOTIFICATION.---

(1) IN GENERAL.---A governmental entity that is seeking a warrant under section 2703(a) may include in the application for the warrant a request for an order delaying the notification required under section 2703(a) for a period of not more than 90 days 180 days, in the case of a law enforcement agency, or not more than 90 days, in the case of any other governmental entity,.

(2) DETERMINATION.---A court shall grant a request for delayed notification made under paragraph (1) if the court determines that there is reason to believe that notification of the existence of the warrant may result in---

(A) endangering the life or physical safety of an individual;

(B) flight from prosecution;

(C) destruction of or tampering with evidence;

(D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

	TLJ Note: The words "180 days" were inserted by the manager's amendment. The words ", in the case of a law enforcement agency, or not more than 90 days, in the case of any other governmental entity," were added by the Cornyn Lee amendment. The final comma should be deleted.

(3) EXTENSION.---Upon request by a governmental entity, a court may grant 1 or more extensions of the delay of notification granted under paragraph (2) of not more than 90 days 180 days, in the case of a law enforcement agency, or not more than 90 days, in the case of any other governmental entity,.

(4) EXPIRATION OF THE DELAY OF NOTIFICATION.---Upon expiration of the period of delay of notification under paragraph (2) or (3), the governmental entity shall serve upon, or deliver to by registered or first-class mail, electronic mail or other means reasonably calculated to be effective as specified by the court approving the search warrant, the customer or subscriber---

(A) a copy of the warrant; and

(B) notice that informs the customer or subscriber---

(i) of the nature of the law enforcement inquiry with reasonable specificity;

(ii) that information maintained for the customer or subscriber by the provider of electronic communication service or remote computing service named in the process or request was supplied to, or requested by, the governmental entity;

(iii) of the date on which the warrant was served on the provider and the date on which the information was provided by the provider to the governmental entity;

(iv) that notification of the customer or subscriber was delayed;

(v) the identity of the court authorizing the delay; and

(vi) of the provision of this chapter under which the delay was authorized.

(b) PRECLUSION OF NOTICE TO SUBJECT OF GOVERNMENTAL ACCESS.---

(1) IN GENERAL.---A governmental entity that is obtaining the contents of a communication or information or records 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 for a period of not more than 90 days 180 days, in the case of a law enforcement agency, or not more than 90 days, in the case of any other governmental entity,.

(2) DETERMINATION.---A court shall grant a request for an order made under paragraph (1) if the court determines that there is reason to believe that notification of the existence of the warrant, order, subpoena, or other directive may result in---

(A) endangering the life or physical safety of an individual;

(B) flight from prosecution;

(C) destruction of or tampering with evidence;

(D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

	TLJ Note: In (3), the words "not more than 180 days" were inserted by the manager's amendment. The words ", in the case of a law enforcement agency, or not more than 90 days, in the case of any other governmental entity," were added by the Cornyn Lee amendment. The final comma should be deleted.
	TLJ Note: Subsection (4) was added by the manager's amendment.
	TLJ Note: Subsection (c) was added by the Cornyn Lee amendment.
	TLJ Note: Section 205 was added by the manager's amendment.

(3) EXTENSION.---Upon request by a governmental entity, a court may grant 1 or more extensions of an order granted under paragraph (2) of not more than 90 days. not more than 180 days, in the case of a law enforcement agency, or not more than 90 days, in the case of any other governmental entity,.

(4) PRIOR NOTICE TO LAW ENFORCEMENT.--- Upon expiration of the period of delay of notice under this section, and not later than 3 business days before providing notice to a customer or subscriber, a provider of electronic communications service or remote computing service shall notify the governmental entity that obtained the contents of a communication or information or records under section 2703 of the intent of the provider of electronic communications service or remote computing service to notify the customer or subscribe of the existence of the warrant, order, or subpoena seeking that information.

(c) DEFINITION.---In this section and section 2703, the term ‘law enforcement agency’ means an agency of the United States, a State, or a political subdivision of a State, authorized by law or by a government agency to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of criminal law, or any other Federal or State agency conducting a criminal investigation.

SEC. 205. RULE OF CONSTRUCTION.

Nothing in this title or an amendment made by this title shall be construed to apply the warrant requirement for contents of a wire or electronic communication authorized under this title or an amendment made by this title to any other section of title 18, United States Code (including chapter 119 of such title (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.