HR 5018, the Electronic Communications Privacy Act of 2000, as adopted by the House Constitution Subcommittee on September 14, 2000.
Source: House Judiciary Committee.

Editor's Notes:
 • This version is the House Constitution Subcommittee's compilation of an Amendment in the Nature of a Substitute offered by Rep. Canady, as amended by an Amendment offered by Rep. Barr, at the September 14, 2000 meeting of the House Constitution Subcommittee.
 • Tech Law Journal scanned a paper copy provided by the House Judiciary Committee on September 19, and converted into HTML.
 • Several features were eliminated in the conversion, including fonts, double spacing, line numbering, and paragraph indentations.
 • Copyright Tech Law Journal. All rights reserved.

SUBCOMMITTEE AMENDMENT IN THE NATURE OF
A SUBSTITUTE TO H.R. 5018

(As ordered reported from the Subcommittee on the Constitution on 14 September 2000)

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the "Electronic Communications Privacy Act of 2000".

SEC. 2. USE AS EVIDENCE.

(a) IN GENERAL.---Section 2515 of title 18, United States Code, is amended---

(1) by striking "WIRE OR ORAL" in the heading and inserting "WIRE, ORAL, OR ELECTRONIC".

(2) by striking "Whenever any wire or oral communication has been intercepted" and inserting "(a) Except as provided in subsection (b), whenever any wire, oral, or electronic communication has been intercepted, or any electronic communication in electronic storage has been disclosed";

(3) by inserting "or chapter 121" after "this chapter"; and

(4) by adding at the end the following:

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"(b) Subsection (a) does not apply to the disclosure, before a grand jury or in a criminal trial, hearing, or other criminal proceeding, of the contents of a communication, or evidence derived therefrom, against a person alleged to have intercepted, used, or disclosed the communication in violation of this chapter, or chapter 121, or participated in such violation.".

(b) SECTION 2518.---Section 2518(10) of title 18, United States Code, is amended---

(1) by striking "or oral" each place it appears and inserting ", oral, or electronic"; and

(2) by striking paragraph (c).

(c) CLERICAL AMENDMENT.---The item relating to section 2515 in the table of sections at the beginning of chapter 119 of title IS, United States Code, is amended to read as follows

"2515. Prohibition of use as evidence of intercepted wire, oral, or electronic communications.".

SEC. 3. REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS OF ELECTRONIC COMMUNICATIONS.

Section 2703 of title I8, United States Code, is amended by adding at the end the following:

"(g) REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS OF ELECTRONIC COMMUNICATIONS.---

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"(1) By January 31 of each calendar year, the judge issuing or denying an order, warrant, or subpoena, or the authority issuing or denying a subpoena, under subsection (a) or (b) of this section shall report to the Administrative Office of the United States Courts---

"(A) the fact that the order, warrant, or subpoena was applied for;

"(B) the kind of order, warrant, or subpoena applied for;

"(C) the fact that the order, warrant, or subpoena was granted as applied for, was modified or was denied;

"(D) the period of disclosures authorized by the order, warrant, or subpoena;

"(E) the offense specified in the order, warrant, subpoena, or application;

"(F) the identity of the agency making the application; and

"(G) the nature of the facilities from which or the place where the contents of electronic communications were to be disclosed.

"(2) In January of each year the Attorney General, an Assistant Attorney General specially designated by the Attorney General, or the principal [begin page 4] prosecuting attorney of a State, or the principal prosecuting attorney for any political subdivision of a State, shall report to the Administrative Office of the United States Courts---

"(A) the information required by subparagraphs (A) through (G) of paragraph (1) of this subsection with respect to each application for an order, warrant, or subpoena made during the preceding calendar year; and

"(B) a general description of the disclosures made under each such order, warrant, or subpoena, including---

"(i) the approximate nature and number of all communications disclosed and, of those, the approximate nature and number of incriminating communications disclosed;

"(ii) the approximate nature and number of other communications disclosed; and

"(iii) the approximate number of persons whose communications were disclosed.

"(3) In June of each year, beginning in 2002, the Director of the Administrative Office of the United States Courts shall transmit to the Congress a full and complete report concerning the number of [begin page 5] applications for orders, warrants, or subpoenas authorizing or requiring the disclosure of the contents of electronic communications pursuant to subsections (a) and (b) of this section and the number of orders, warrants, or subpoenas granted or denied pursuant to subsections (a) and (b) of this section during the preceding calendar year. Such report shall include a summary and analysis of the data required to be filed with the Administrative Office by paragraphs (1) and (2) of this subsection. The Director of the Administrative Office of the United States Courts is authorized to issue binding regulations dealing with the content and form of the reports required to be filed by paragraphs (1) and (2) of this subsection.".

SEC. 4. PEN REGISTERS AND TRAP AND TRACE DEVICES.

(a) REQUIREMENT FOR SHOWING.---Section 3122(b)(2) of title 18, United States Code, is amended 9 to read as follows:

"(2) a statement of facts showing that the requirements of section 3123 have been met.".

(b) FINDING BY COURT.---Subsection (a) of section 3123 of title 18, United States Code, is amended by striking "the attorney for the Government" and all that follows through the end of such subsection and inserting "specific [begin page 6] and articulable facts reasonably indicate that a crime has been, is being, or will be committed, and information likely to be obtained by such installation and use is relevant to the investigation of that crime.".

SEC. 5. CIVIL DAMAGES.

Section 2520(c)(2) of title 18, United States Code, is amended---

(1) by striking "court may" and inserting "court shall";

(2) by striking "greater" and inserting "greatest";

(3) in subparagraph (A), by striking "or" after the semicolon;

(4) in subparagraph (B), by striking "whichever is the greater of $100 a day for each day of violation or $10,000." and inserting "$500 a day for each violation; or"; and

(5) by inserting after subparagraph (B), the following:

"(C) statutory damages of $10,000.".

SEC. 6. NOTIFICATION.

Section 2705(a)(4) of title 18, United States Code, is amended by striking "or by certification by a governmental entity, but only in accordance with subsection (b) of this section." and inserting "if the court determines [begin page 7] that there is reason to believe that notification of the existence of the court order or subpoena may have an adverse result described in paragraph (2) of this subsection.".

SEC. 7. GOVERNMENT ACCESS TO LOCATION INFORMATION.

(a) COURT ORDER REQUIRED.---Section 2703 of title is, United States Code, as amended by section 3 of this Act, is further amended by adding at the end the following:

"(h) DISCLOSURE OF LOCATION INFORMATION TO GOVERNMENTAL ENTITIES.---

"(1) DISCLOSURE UPON COURT ORDER.---Except as provided in paragraph (2), a provider of mobile electronic communication service shall provide to a governmental entity information generated by and disclosing the current physical location of a subscriber's equipment only if the governmental entity obtains a court order issued upon a finding that there is probable cause to believe that---

"(A) an individual is committing, has committed, or is about to commit a felony offense; and

"(B) the location information sought to be obtained concerns the location of the person believed to have committed, be committing, or be [begin page 8] about to commit that offense or a victim of that offense.

"(2) PERMITTED DISCLOSURES WITHOUT COURT ORDER.---A provider of mobile electronic communication service may provide information described in paragraph (1)---

"(A) to a public safety answering point, emergency medical service provider or emergency dispatch provider, public safety, fire service or law enforcement official, or hospital emergency or trauma care facility, in order to respond to the user's call for emergency services;

"(B) to inform the user's legal guardian or members of the user's immediate family of the user's location in an emergency situation that involves the risk of death or serious physical harm; or

"(C) with the express consent of the subscriber or the user of the equipment concerned.

"(3) DEFINITIONS.---The term 'public safety answering point' means a facility that has been designated to receive emergency calls and route them to emergency service personnel.".

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(b) CONFORMING AMENDMENT.---Subsection (c)(1)(B) of section 2703 of title 18, United States Code, is amended by striking "(b) of this section" and inserting "(b), or wireless location information covered by subsection (g)".