S. 3023 — what changed

changed “202. Modernizing law enforcement's ability to store child pornography and pornography, child obscenity obscenity, and intimate visual depictions of minors and limited liability for approved vendors

“(a) Definitions—In this section:

changed “(1) Approved vendor—The term approved vendor means an organization, corporation, or entity a cloud service provider that—

changed “(A) offers digital storage services, including remote or cloud-based storage, and analytical and forensic tool processing support; complies with the security requirements described in subsection (c); and

changed “(B) has been contractually retained and designated by a law enforcement or prosecutorial covered agency based in the United States to support the duties of such agency by—

changed “(i) storing digital child pornography or pornography, child obscenity;obscenity, or an intimate visual depiction of a minor;

changed “(ii) making such child pornography or pornography, child obscenity obscenity, or intimate visual depiction of a minor available to the contracting agency, or any law enforcement or prosecutorial agency designated by the contracting agency, upon request; and

“(iii) providing maintenance, technical and analytical assistance, and forensic tool processing support upon request by the contracting agency.

changed “(2) Child pornography—The term child pornography has the meaning given that term in section 2256 2256(8) of title 18, United States Code.

added “(3) Cloud service provider—The term cloud service provider means an organization, corporation, or entity that makes available digital storage services, including remote or cloud-based storage, and analytical and forensic tool processing support.

added “(4) Covered agency—The term covered agency means a Federal, State, or local law enforcement or prosecutorial agency.

added “(5) Intimate visual depiction of a minor—The term intimate visual depiction of a minor means an intimate visual depiction, as defined in section 223(h) of the Communications Act of 1934 (47 U.S.C. 223(h)), including a digital forgery, of an identifiable individual who is a minor, as that term is defined in such section.

added “(6) Local—The term local means any political subdivision of a State.

added “(7) State—The term State means any of the 50 States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands.

“(b) Limited liability for approved vendors

“(1) Limited liability for law enforcement approved vendors—Except as provided in paragraph (2), a civil claim or criminal charge may not be brought in any Federal or State court against an approved vendor relating to the approved vendor's performance of any contractual obligation or service described in subsection (a)(1).

“(2) Intentional, reckless, or other misconduct—A civil claim or criminal charge may be brought in any Federal or State court against an approved vendor if the approved vendor—

“(A) engaged in—

“(i) intentional misconduct; or

added “(ii) negligent conduct; or

removed “(ii) negligent conduct;

“(B) acted, or failed to act—

“(i) with actual malice;

“(ii) with reckless disregard to a substantial risk of causing injury without legal justification; or

“(iii) for a purpose unrelated to the performance of any responsibility or function described in subsection (a)(1)(B).

added “(c) Vendor cybersecurity requirements—With respect to any child pornography, child obscenity, or intimate visual depiction of a minor stored, maintained, or processed by an approved vendor, such approved vendor shall—

added “(1) secure such child pornography, child obscenity, or intimate visual depiction of a minor in a manner that is consistent with the most recent version of the Cybersecurity Framework developed by the National Institute of Standards and Technology, or any successor thereto;

added “(2) only access the child pornography, child obscenity, or intimate visual depiction of a minor upon consent of the covered agency contracting the service and for the purpose of providing maintenance, technical assistance, and forensic tool processing support in the cloud;

added “(3) minimize the number of employees that may be able to obtain access to such child pornography, child obscenity, or intimate visual depiction of a minor and maintain a list of employees who have obtained such access;

removed “(c) Vendor cybersecurity requirements—With respect to any visual depiction stored and available for analysis in the cloud storage service of an approved vendor, and pursuant to the duties of law enforcement in the investigation of the sexual exploitation of children, an approved vendor shall—

removed “(1) secure such visual depiction in a manner that is consistent with the most recent version of the Cybersecurity Framework developed by the National Institute of Standards and Technology, or any successor thereto;

removed “(2) only access the visual depictions upon consent of the law enforcement or prosecutorial agency contracting the service and for the purpose of providing maintenance, technical assistance, and forensic tool processing support in the cloud;

removed “(3) minimize the number of employees that may be able to obtain access to such visual depiction;

“(4) employ end-to-end encryption for data storage and transfer functions, or an equivalent technological standard;

added “(5) undergo an independent annual cybersecurity audit to determine whether such child pornography, child obscenity, or intimate visual depiction of a minor is secured as required by paragraphs (1), (3), and (4), including by assessing compliance with the National Institute of Standards and Technology Special Publication 800–53, Revision 5 (relating to security and privacy controls for information systems and organizations) or any successor documents or revisions; and

removed “(5) undergo an independent annual cybersecurity audit to determine whether such visual depiction is secured as required under paragraph (1); and

“(6) promptly address all issues identified by an audit described in paragraph (5).

added “(d) Evidence storage—Any covered agency that stores child pornography, child obscenity, or an intimate visual depiction of a minor pursuant to a contract with an approved vendor shall retain such evidence—

added “(1) in compliance with the security policy of the Criminal Justice Information Services Division of the Federal Bureau of Investigation, or any other similar and appropriate division within the Federal Bureau of Investigation;

added “(2) for a period consistent with the evidence retention requirements applicable to the covered agency under the relevant Federal, State, or local law, rule of criminal procedure, or prosecutorial policy; or

removed “(d) Evidence storage—Any law enforcement or prosecutorial agency that stores evidence of child pornography and child obscenity using cloud-based or remote storage services shall retain such evidence—

removed “(1) in compliance with the security policy of the Criminal Justice Information Services of the Federal Bureau of Investigation;

removed “(2) for a period consistent with the evidence retention requirements applicable to the investigating or prosecuting agency under the relevant Federal, State, or local law, rule of criminal procedure, or prosecutorial policy; or

“(3) in the absence of such law, rule, or policy, for a period not less than the applicable statute of limitations or the duration of any sentence imposed, including the period of post-conviction review.

“(e) Additional requirements for approved vendors

added “(1) Location of data

added “(A) In general—Except as provided in subparagraph (B), each approved vendor shall ensure that any child pornography, child obscenity, or intimate visual depiction of a minor stored pursuant to this section remains in the United States.

added “(B) Exception—Child pornography, child obscenity, and intimate visual depictions of a minor stored under this section may be transferred outside the United States only with the express consent of the contracting covered agency if such agency deems the transfer necessary for investigative purposes.

removed “(1) In general—Each approved vendor shall ensure that cloud-based storage and analytics of child pornography and child obscenity under this section remain in the United States.

“(2) Notification letter

added “(A) In general—Approved vendors shall file a notification letter with the Criminal Division of the Department of Justice not later than 30 days after entering into a contract described in subsection (a)(1)(B).

added “(B) Contents—The notification letter described in subparagraph (A) shall include the entity name and point of contact information of the approved vendor, the name of the contracting covered agency, the period of performance of the contract, and an acknowledgment by the approved vendor that the approved vendor will notify the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice of any changes to the information in the letter.

removed “(A) In general—Approved vendors shall file a notification letter with the Department of Justice not later than 30 days after entering into a contract described in subsection (a)(1)(B).

removed “(B) Contents—The notification letter shall include the entity name and point of contact information of the approved vendor, the name of the contracting agency, the period of performance of the contract, and an acknowledgment by the approved vendor that the approved vendor will notify the Department of Justice of any changes to the information in the letter.

“(3) Breach of contract

added “(A) In general—If a covered agency fails to make required payment under a contract, breaches any material term of such contract, or otherwise terminates such contract without establishing lawful transfer of the evidence, the approved vendor shall, not later than 30 days after the failure, breach, or termination, notify the Criminal Division of the Department of Justice in the case of a breach by a Federal agency, or the appropriate State attorney general in the case of a breach by a State or local agency.

added “(B) Maintenance of evidence—Upon making a notification under subparagraph (A), the approved vendor shall continue to preserve and maintain the integrity of the evidence until a prompt and lawful transfer of custody occurs to the Criminal Division of the Department of Justice or another Federal, State, or local law enforcement agency with jurisdiction.

added “(f) Rule of construction—Nothing in this section shall be construed to limit—

added “(1) bona fide use by the contracting covered agency of child pornography, child obscenity, or intimate visual depiction of a minor being stored by the approved vendor, which includes providing such child pornography or child obscenity to any other party as necessary for an investigation or prosecution; or

added “(2) the obligation of the contracting covered agency to comply with a constitutional or statutory obligation, court order, or request from a victim made pursuant to section 3509(m)(3) of title 18, United States Code.”

removed “(A) In general—If a law enforcement or prosecutorial agency fails to make required payment under a contract, breaches any material term of such contract, or otherwise terminates such contract without establishing lawful transfer of the evidence, the approved vendor shall, not later than 30 days after the failure, breach, or termination, notify the Department of Justice, or in the case of a State or local agency, the appropriate State attorney general.

removed “(B) Maintenance of evidence—Upon making a notification under subparagraph (A), the approved vendor shall continue to preserve and maintain the integrity of the evidence until a lawful transfer of custody occurs to the Department of Justice or another Federal, State, or local law enforcement agency with jurisdiction.”