H.R. 4639 — what changed

Section 2702 of title 18, United States Code, is amended by adding at the end the following:

“(e) Prohibition on obtaining in exchange for anything of value certain records and information by law enforcement and intelligence agencies

“(1) Definitions—In this subsection—

“(A) the term covered customer or subscriber record means a covered record that is—

“(i) disclosed to a third party by—

“(I) a provider of an electronic communication service to the public or a provider of a remote computing service of which the covered person with respect to the covered record is a subscriber or customer; or

“(II) an intermediary service provider that delivers, stores, or processes communications of such covered person;

“(ii) collected by a third party from an online account of a covered person; or

“(iii) collected by a third party from or about an electronic device of a covered person;

“(B) the term covered person means—

“(i) a person who is located inside the United States; or

“(ii) a person—

“(I) who is located outside the United States or whose location cannot be determined; and

“(II) who is a United States person, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

changed “(C) the term covered record means a record or other information that—“covered record”—

changed “(i) pertains to means a covered person; andrecord or other information that—

changed “(ii) is—“(I) pertains to a covered person; and

changed “(I) a record or other information described in the matter preceding paragraph (1) of subsection (c);“(II) is—

changed “(II) “(aa) a record or other information described in the contents matter preceding paragraph (1) of a communication; orsubsection (c);

changed “(III) location information;“(bb) the contents of a communication; or

added “(cc) location information; and

added “(ii) does not include a record or other information that—

added “(I) has been voluntarily made available to the general public by a covered person on a social media plat form or similar service;

added “(II) is lawfully available to the public as a Federal, State, or local government record or through other widely distributed media;

added “(III) is obtained by a law enforcement agency of a governmental entity or an element of the intelligence community for the purpose of conducting a background check of a covered person—

added “(aa) with the written consent of such person;

added “(bb) for access or use by such agency or element for the purpose of such background check; and

added “(cc) that is destroyed after the date on which it is no longer needed for such background check; or

added “(IV) is data generated by a public or private ALPR system;

“(D) the term electronic device has the meaning given the term computer in section 1030(e);

“(E) the term illegitimately obtained information means a covered record that—

“(i) was obtained—

“(I) from a provider of an electronic communication service to the public or a provider of a remote computing service in a manner that—

“(aa) violates the service agreement between the provider and customers or subscribers of the provider; or

“(bb) is inconsistent with the privacy policy of the provider;

“(II) by deceiving the covered person whose covered record was obtained; or

“(III) through the unauthorized accessing of an electronic device or online account; or

“(ii) was—

“(I) obtained from a provider of an electronic communication service to the public, a provider of a remote computing service, or an intermediary service provider; and

“(II) collected, processed, or shared in violation of a contract relating to the covered record;

“(F) the term intelligence community has the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003);

“(G) the term location information means information derived or otherwise calculated from the transmission or reception of a radio signal that reveals the approximate or actual geographic location of a customer, subscriber, or device;

“(H) the term obtain in exchange for anything of value means to obtain by purchasing, to receive in connection with services being provided for consideration, or to otherwise obtain in exchange for consideration, including an access fee, service fee, maintenance fee, or licensing fee;

“(I) the term online account means an online account with an electronic communication service to the public or remote computing service;

“(J) the term pertain, with respect to a person, means—

“(i) information that is linked to the identity of a person; or

“(ii) information—

“(I) that has been anonymized to remove links to the identity of a person; and

added “(II) that, if combined with other information, could be used to identify a person;

removed “(II) that, if combined with other information, could be used to identify a person; and

“(K) the term third party means a person who—

“(i) is not a governmental entity; and

“(ii) in connection with the collection, disclosure, obtaining, processing, or sharing of the covered record at issue, was not acting as—

“(I) a provider of an electronic communication service to the public; or

added “(II) a provider of a remote computing service; and

added “(L) the term “automated license plate recognition system” or “ALPR system” means a system of one or more mobile or fixed high-speed cameras combined with computer algorithms to convert images of license plates into computer-readable data.

removed “(II) a provider of a remote computing service.

“(2) Limitation

“(A) In general—A law enforcement agency of a governmental entity and an element of the intelligence community may not obtain from a third party in exchange for anything of value a covered customer or subscriber record or any illegitimately obtained information.

“(B) Indirectly acquired records and information—The limitation under subparagraph (A) shall apply without regard to whether the third party possessing the covered customer or subscriber record or illegitimately obtained information is the third party that initially obtained or collected, or is the third party that initially received the disclosure of, the covered customer or subscriber record or illegitimately obtained information.

“(3) Limit on sharing between agencies—An agency of a governmental entity that is not a law enforcement agency or an element of the intelligence community may not provide to a law enforcement agency of a governmental entity or an element of the intelligence community a covered customer or subscriber record or illegitimately obtained information that was obtained from a third party in exchange for anything of value.

“(4) Prohibition on use as evidence—A covered customer or subscriber record or illegitimately obtained information obtained by or provided to a law enforcement agency of a governmental entity or an element of the intelligence community in violation of paragraph (2) or (3), and any evidence derived therefrom, may not 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.

“(5) Minimization procedures

“(A) In general—The Attorney General shall adopt specific procedures that are reasonably designed to minimize the acquisition and retention, and prohibit the dissemination, of information pertaining to a covered person that is acquired in violation of paragraph (2) or (3).

“(B) Use by agencies—If a law enforcement agency of a governmental entity or element of the intelligence community acquires information pertaining to a covered person in violation of paragraph (2) or (3), the law enforcement agency of a governmental entity or element of the intelligence community shall minimize the acquisition and retention, and prohibit the dissemination, of the information in accordance with the procedures adopted under subparagraph (A).”

“(f)

“(i)

“(A) Nothing contained in this chapter, chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934 (47 U.S.C. 151 et seq.) shall be deemed to affect an acquisition or activity described in clause (B) that is carried out utilizing a means other than electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

“(B) An acquisition or activity described in this clause is—

“(I) an acquisition by the United States Government of foreign intelligence information from international or foreign communications that—

“(aa) is acquired pursuant to express statutory authority; or

“(bb) only includes information of persons who are not United States persons and are located outside the United States; or

“(II) a foreign intelligence activity involving a foreign electronic communications system that—

“(aa) is conducted pursuant to express statutory authority; or

“(bb) only involves the acquisition by the United States Government of information of persons who are not United States persons and are located outside the United States.

“(ii) The procedures in this chapter, chapter 121, and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.”