No official summary available for this bill.
[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5331 Introduced in House (IH)]
<DOC>
118th CONGRESS
1st Session
H. R. 5331
To amend title 18, United States Code, to require that notice of
criminal surveillance orders be eventually provided to targets, to
reform the use of nondisclosure orders to providers, to prohibit
indefinite sealing of criminal surveillance orders, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 1, 2023
Mr. Lieu (for himself and Mr. Davidson) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to require that notice of
criminal surveillance orders be eventually provided to targets, to
reform the use of nondisclosure orders to providers, to prohibit
indefinite sealing of criminal surveillance orders, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Government Surveillance Transparency
Act of 2023''.
SEC. 2. CRIMINAL SURVEILLANCE ORDERS.
(a) In General.--Part II of title 18, United States Code, is
amended by inserting after chapter 206 the following:
``CHAPTER 206A--CRIMINAL SURVEILLANCE ORDERS
``Sec.
``3131. Definitions.
``3132. Criminal surveillance orders.
``3133. Request for unsealing or challenging redactions.
``Sec. 3131. Definitions
``In this chapter:
``(1) Application.--The term `application'--
``(A) means an application for a criminal
surveillance order; and
``(B) includes all supporting affidavits and
exhibits.
``(2) Pen register; trap and trace device.--The terms `pen
register', and `trap and trace device' have the meanings given
the terms in section 3127.
``(3) Criminal surveillance order.--The term `criminal
surveillance order' means--
``(A) an order authorizing or approving the
interception of a wire communication, oral
communication, or electronic communication under
chapter 119 or under an equivalent State law;
``(B) an order authorizing or approving the
installation and use of a pen register or a trap and
trace device under chapter 206 or under an equivalent
State law;
``(C) an order for the installation of a mobile
tracking device under section 3117;
``(D) an order for disclosure under chapter 121;
``(E) an order for a delay of notification or
nondisclosure under section 2705;
``(F) a search or seizure warrant issued using the
procedures described in the Federal Rules of Criminal
Procedure or in the case of a State or Tribal court,
issued using State or Tribal warrant procedures;
``(G) in the case of a court-martial or other
proceeding under chapter 47 of title 10 (Uniform Code
of Military Justice), a warrant or order issued under
section 846 of that title;
``(H) a warrant under section 3103a;
``(I) an order under section 1651 of title 28;
``(J) an order for third party assistance under
section 2518(4) or section 3124; or
``(K) an order to enforce the assistance capability
and capacity requirements under section 2522.
``(4) Electronic communication; oral communication; wire
communication.--The terms `electronic communication', `oral
communication', and `wire communication' have the meanings
given the terms in section 2510.
``(5) Indian tribe.--The term `Indian Tribe' has the
meaning given such term in section 102 of the Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).
``(6) Inventory.--The term `inventory' means the inventory
and other materials--
``(A) returned to a Federal, State, or Tribal court
or a court-martial or other proceeding under chapter 47
of title 10 (Uniform Code of Military Justice) in
connection with the execution of a criminal
surveillance order (including under paragraph (1)(D) or
(2)(B) of rule 41(f) of the Federal Rules of Criminal
Procedure, under comparable State warrant procedures,
or under procedures applicable to a court-martial or
other proceeding under chapter 47 of title 10); or
``(B) provided to persons and other parties
described in section 2518(8)(d).
``(7) State.--The term `State' means each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa, the Commonwealth
of the Northern Mariana Islands, Guam, and the United States
Virgin Islands.
``(8) Substantially prevails.--The term `substantially
prevails' has the meaning given the term in section
552(a)(4)(E) of title 5.
``Sec. 3132. Criminal surveillance orders
``(a) Limitation on Sealing.--
``(1) In general.--Except as provided in paragraph (2), a
court may not seal a criminal surveillance order, application,
or inventory for a period that extends after the later of--
``(A) date the order is executed; or
``(B) the date on which the authorized surveillance
ends.
``(2) Exceptions.--
``(A) In general.--An applicant for a criminal
surveillance order may file a written request for the
court to seal the criminal surveillance order, the
application, or the inventory for a period not to
exceed 180 days after the later of the date the order
is executed or the date on which the authorized
surveillance ends, which request the court shall grant
if the applicant certifies that there is reason to
believe that failure to seal will have an adverse
result described in subparagraph (B).
``(B) Adverse result.--
``(i) In general.--An adverse result
described in this subparagraph is--
``(I) endangering the life or
physical safety of an individual;
``(II) flight from prosecution;
``(III) destruction of or tampering
with evidence;
``(IV) intimidation of potential
witnesses; or
``(V) otherwise seriously
jeopardizing the investigation to which
the criminal surveillance order relates
or unduly delaying a trial resulting
from the investigation.
``(ii) Other requirements.--
``(I) In general.--When certifying
an adverse result, the applicant shall
certify that there is reason to believe
that the person whose information is
targeted by the order does not know--
``(aa) about the
investigation; and
``(bb) that they are a
target or person of interest in
the investigation.
``(II) Failure to certify.--If the
applicant does not satisfy the
requirements of subclause (I)--
``(aa) the applicant must
follow the higher standard of
judicial review required by
subparagraph (C)(ii); and
``(bb) the failure to
satisfy such requirements shall
be disclosed in both the
criminal surveillance order and
any preclusion of notice order
issued for that criminal
surveillance order.
``(iii) Review by court.--The court may, in
its discretion, require the government to
provide the factual basis for the certification
described in clause (i) and may review that
factual basis for sufficiency.
``(iv) Notification.--
``(I) In general.--For any criminal
surveillance order, application, or
inventory that is sealed at the
Government's request, the Government
shall promptly notify the court if the
Government no longer has reason to
believe that removal of a seal will
have an adverse result described in
this subparagraph.
``(II) Unsealing.--After being
notified by the Government under
subclause (I), the court shall unseal
the criminal surveillance order,
application, or inventory.
``(C) Extensions.--
``(i) In general.--The court may grant a
single extension of a sealing order for up to
180 days, upon the applicant's motion, based on
a renewed certification that failure to extend
the sealing period will have an adverse result
described in subparagraph (B).
``(ii) Heightened judicial review of
subsequent extensions.--
``(I) In general.--For any
extension after an extension under
clause (i), the court may grant an
extension of a sealing order for up to
180 days, upon the applicant's motion,
if the applicant--
``(aa) demonstrates--
``(AA) a
particularized showing
that failure to extend
the sealing period will
have an adverse result
described in
subparagraph (B); and
``(BB) a
particularized showing
that the adverse result
would not be avoided by
redaction of specified
words, phrases, or
passages in the
criminal surveillance
order, application, or
inventory; and
``(bb) details--
``(AA) the nature
of the investigation;
``(BB) the
suspected crimes;
``(CC) the name of
the target; and
``(DD) specific
facts that substantiate
the need for the
extension.
``(II) Redacted documents.--
``(aa) In general.--If the
court determines that an
applicant has met the
requirements of subitem (AA) of
subclause (I)(aa), but not the
requirements of subitem (BB) of
subclause (I)(aa), the court
shall order the applicant to
submit proposed redactions to
each sealed document.
``(bb) Disposition.--After
considering the proposed
redactions of the applicant, if
any, the court may order the
applicant to refile 1 or more
sealed documents with such
redactions as the court finds
appropriate, direct the clerk
to unseal the entirety of 1 or
more sealed documents, or order
that 1 or more sealed documents
remain under seal.
``(D) Sealing of rejected applications and
unexecuted criminal surveillance orders.--A court may,
pursuant to subparagraph (A), seal an unexecuted
criminal surveillance order, or a rejected application.
``(E) Challenge of adverse result certification or
extension.--
``(i) In general.--Any person subject to
and seeking to challenge a preclusion of notice
order or any person seeking to unseal a
surveillance order, application, or inventory
may challenge--
``(I) a certification of the
adverse result under this paragraph; or
``(II) the particularized showings
and detailed information necessary for
a second and subsequent extension.
``(ii) Heightened standard.--If an order
under this paragraph or a preclusion of notice
order for a subpoena or emergency request is
issued earlier than 1 year before the date on
which a challenge under clause (i) is made, the
requirements of subparagraph (C)(ii) shall
apply to a warrant or order sealed in
accordance with chapter 206A or the subpoena or
emergency request.
``(iii) Costs.--If a person substantially
prevails in a challenge under this
subparagraph, the court shall order the
applicant for the criminal surveillance order
at issue to pay the litigation costs of the
person (including reasonable attorney's fees).
``(b) Docketing and Publication of Criminal Surveillance Orders,
Applications, Inventories, and Associated Docket Records.--
``(1) Docket records.--Except as provided in paragraph (2),
regardless of whether a court seals a criminal surveillance
order or application under this section, the public docket
record for any criminal surveillance case shall--
``(A) be made available as an open Government data
asset and under an open license, as such terms are
defined in section 3502 of title 44, and in a manner
that facilitates downloading docket records in bulk, in
accordance with rules promulgated by the Judicial
Conference of the United States, after consultation
with the National Institute of Standards and
Technology, the Administrator of General Services, the
Electronic Public Access Public User Group, private
entities offering electronic case management software,
the National Center for State Courts, and the National
American Indian Court Judges Association, on the
website of the court; and
``(B) include, at a minimum--
``(i) the date and time the application was
filed, the order was entered, and the warrant
was returned to the court, where applicable;
``(ii) the type of order, including--
``(I) the statutory authority under
which the order was issued;
``(II) the type of crime under
investigation;
``(III) the investigating agency;
``(IV) the duration of the
requested surveillance if any;
``(V) whether sealing and deferred
notice were requested, if so for how
long;
``(VI) whether an order for third
party assistance was requested; and
``(VII) disposition by the court,
whether granted, modified, or denied;
``(iii) an index describing any subsequent
filings or orders related to the case;
``(iv) the unique case number in accordance
with paragraph (3); and
``(v) the date on which the seal will
expire (unless extended pursuant to subsection
(a)(2)(C)).
``(2) Showing of adverse result.--If an applicant in a
sealed case demonstrates that public disclosure of any docket
item listed in paragraph (1)(B)(ii) will have an adverse result
described in subsection (a)(2)(B), the court may direct the
clerk to withhold that item from the public docket record until
the sealing order expires.
``(3) Case number and caption.--
``(A) In general.--A court shall assign for each
application--
``(i) a unique case number for every
identified target, including for each unique
street address, parcel, person, phone number,
device, or account targeted; and
``(ii) a case caption providing only
generic information about the type of order
sought and the target of the order.
``(B) Requirements.--A court shall assign a case
number and case caption under subparagraph (A) in
accordance with rules promulgated by the Judicial
Conference of the United States, in consultation with
the Electronic Public Access Public User Group, or in
the case of a State court, in accordance with rules
promulgated by the highest court of the State, and in
the case of a Tribal court, in accordance with rules
promulgated by the highest court of the Indian Tribe.
``(4) Compliance with the rehabilitation act of 1973.--Each
criminal surveillance order, application, inventory, and public
docket record for any criminal surveillance case required under
this subsection shall be published in a form that complies with
section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d).
``(5) Nondisclosure orders.--When applying for an order for
nondisclosure under section 2705, to prevent the disclosure of
a subpoena--
``(A) the applicant for the order shall include a
copy of the subpoena; and
``(B) the court shall docket the subpoena as part
of the application for the order.
``(6) Automatic unsealing and notification.--The court
shall employ a technical mechanism to automatically--
``(A) unseal criminal surveillance orders not later
than the end of the next business day after the seal
expires; and
``(B) provide notice, 10 business days before
scheduled unsealing, to the law enforcement agency that
filed the application for the criminal surveillance
order.
``(c) Filing.--An application and the inventory shall be filed
electronically.
``Sec. 3133. Request for unsealing or challenging redactions
``(a) In General.--Any person may submit a request to a court to--
``(1) unseal an application for a criminal surveillance
order, a criminal surveillance order, or an inventory; or
``(2) challenge a redaction under section
3132(a)(2)(C)(ii)(II).
``(b) Form.--A request described in subsection (a) may be submitted
as part of--
``(1) the particular criminal surveillance matter,
including as a motion to unseal; or
``(2) as a stand-alone, separate case.
``(c) Multiple Applications and Orders Unsealed.--A request
described in subsection (a) may include more than 1 application for a
criminal surveillance order, criminal surveillance order, or an
inventory.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Title 18, United States Code, is amended--
(A) in section 2518(8)--
(i) by striking paragraph (b); and
(ii) by redesignating paragraphs (c) and
(d) as subparagraphs (b) and (c), respectively;
(B) in section 3123, by striking subsection (d);
and
(C) in section 3103a(b)(1)--
(i) by striking ``2705'' and inserting
``3132)''; and
(ii) by striking ``trial)'' and inserting
``trial''.
(2) E-government act of 2002.--
(A) In general.--Section 205 of the E-Government
Act of 2002 (44 U.S.C. 3501 note) is amended--
(i) in subsection (a), by adding at the end
the following:
``(8) Access to the substance of all applications for
criminal surveillance orders, criminal surveillance orders, and
inventories in a text searchable format in accordance with
chapter 206A of title 18, United States Code.''; and
(ii) in subsection (c)--
(I) by striking paragraph (2) and
inserting the following:
``(2) Exceptions.--
``(A) In general.--Documents that are filed that
are not otherwise available to the public, such as
documents filed under seal, shall not be made available
online.
``(B) Criminal surveillance orders.--Subparagraph
(A) shall not apply to applications for criminal
surveillance orders, criminal surveillance orders, and
inventories that are publicly available in accordance
with chapter 206A of title 18, United States Code.'';
and
(II) in paragraph (3), by adding at
the end the following:
``(D) The Supreme Court shall update the rules
prescribed under subparagraph (A) to address personal
information included in criminal surveillance orders,
applications, and inventories that are made available
to the public.''.
(3) Table of chapters.--The table of chapters for part II
of title 18, United States Code, is amended by inserting after
the item relating to chapter 206 the following:
``206A. Criminal surveillance orders........................ 3121''.
(c) Effective Date.--
(1) In general.--Except as provided in paragraphs (2) and
(3), the amendments made by this section shall take effect on
the date that is 2 years after the date of enactment of this
Act.
(2) Delayed applicability for certain state and tribal
courts.--
(A) In general.--Subsections (b)(1)(A) and (c) of
section 3132 of title 18, United States Code, as added
by subsection (a) of this section, shall apply on and
after the date that is 4 years after the date of
enactment of this Act--
(i) to a State or Tribal court that, on the
date of enactment of this Act, does not offer
electronic docketing or public online access to
dockets; or
(ii) to any State or Tribal court that
certifies that the court needs more time to
comply with the requirements of those
subsections.
(3) Authority to delay electronic filing.--
(A) Certification.--
(i) Federal courts.--The application of
subsection (c) of section 3132 of title 18,
United States Code, as added by subsection (a)
of this section, to Federal courts under
paragraph (1) of this subsection shall be
delayed for 1 year if the Director of the
Administrative Office of the United States
Courts certifies that the system used by
Federal courts for electronic filing is not
sufficiently secure.
(ii) State and tribal courts.--The
application of subsection (c) of section 3132
of title 18, United States Code, as added by
subsection (a) of this section, to a State or
Tribal court under paragraph (1) or (2) of this
subsection, as applicable, shall be delayed for
1 year if the chief judge of the highest court
of the State or Tribe certifies that the system
used by the State or Tribal court for
electronic filing is not sufficiently secure.
(B) Contents.--A certification under subparagraph
(A) shall include an estimate of the date by which the
electronic filing system of the applicable court will
be sufficiently secure.
(C) Renewal of delay.--The delay of the application
of subsection (c) of section 3132 of title 18, United
States Code, as added by subsection (a) of this
section, to Federal courts or to a State or Tribal
court may be delayed for 1 or more additional 1-year
periods if the Director of the Administrative Office of
the United States Courts or the chief judge of the
highest court of the State or Tribe, respectively,
submits an additional certification in accordance with
subparagraphs (A) and (B).
(D) Publication.--Any certification under this
paragraph shall be--
(i) made available on the website of the
court system with respect to which the
certification is submitted; and
(ii) submitted to the Committee on the
Judiciary of the Senate and the Committee on
the Judiciary of the House of Representatives.
(d) Applicability.--
(1) Definitions.--In this subsection, the terms
``application'', ``criminal surveillance order'', and
``inventory'' have the meanings given such terms in section
3131 of title 18, United States Code, as added by subsection
(a).
(2) Application.--The amendments made by this section shall
apply to--
(A) any application filed or inventory returned on
or after the date described in subsection (d); and
(B) any criminal surveillance order entered on or
after the date described in subsection (d).
(3) Rule of construction regarding unsealing.--Nothing in
the amendments made by this section shall be construed to
prohibit a court from unsealing--
(A) a criminal surveillance order entered or
inventory returned before the date described in
subsection (d); or
(B) an application for a criminal surveillance
order made before the date described in subsection (d).
(4) Rule of construction regarding interpretation.--The
amendments made by this section shall be liberally construed in
favor of public access to documents, to the extent possible.
SEC. 3. NOTICE TO COURTS OF UNLAWFUL SURVEILLANCE.
(a) Required Disclosure of Customer Communications or Records.--
Section 2703(d) of title 18, United States Code, is amended--
(1) by striking ``A court order'' and inserting the
following:
``(1) In general.--A court order''; and
(2) by adding at the end the following:
``(2) Required inventory.--A court order for disclosure
issued under subsection (b) or (c) shall require an inventory
described in rule 41(f)(1)(B) of the Federal Rules of Criminal
Procedure, or any successor thereto, be promptly returned to
the court if the provider disclosed to the government any data
not authorized by the court.''.
(b) Issuance of an Order for a Pen Register or a Trap and Trace
Device.--Section 3123(b) of title 18, United States Code, is amended--
(1) in paragraph (1)(D), by striking ``and'' at the end;
(2) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(3) shall require an inventory described in rule
41(f)(1)(B) of the Federal Rules of Criminal Procedure, or any
successor thereto, be promptly returned to the court if--
``(A) the provider disclosed to the government any
electronic data not authorized by the court; or
``(B) the government obtained dialing, routing,
addressing, or signaling information that was not
authorized by the court or in a manner that exceeded
the authorization granted by the court.''.
(c) Rule 41.--Rule 41(f)(1)(B) of the Federal Rules of Criminal
Procedure is amended by inserting after the period at the end the
following:
``If an inventory is required pursuant to this rule, or if an
inventory is required by section 2703(d)(2) of title 18, United
States Code, or section 3123(b)(3) of that title, the inventory
shall--
``(i) disclose whether the provider
disclosed to the government any electronic data
not authorized by the court and, if so, provide
detailed information regarding the disclosure;
and
``(ii) disclose whether the government
searched persons or property, including
accounts or electronic devices, or obtained
dialing, routing, addressing, or signaling
information not authorized by the court or in a
manner that exceeded the authorization granted
by the court and, if so, provide detailed
information regarding the search.''.
SEC. 4. NOTICE TO SUBJECTS OF LAW ENFORCEMENT SURVEILLANCE.
(a) In General.--Section 2703 of title 18, United States Code, is
amended--
(1) in subsection (a), in the first sentence--
(A) by inserting ``and in accordance with the
requirements for executing and returning a warrant''
after ``the procedures'';
(B) by inserting ``and execution and return'' after
``State warrant''; and
(C) by inserting ``and in accordance with the
requirements for executing and returning such a
warrant'' after ``that title'';
(2) in subsection (b)--
(A) in paragraph (1)--
(i) in subparagraph (A)--
(I) by striking ``without required
notice to the subscriber or
customer,'';
(II) by inserting ``and in
accordance with the requirements for
executing and returning a warrant''
after ``the procedures'';
(III) by inserting ``and execution
and return'' after ``State warrant'';
and
(IV) by inserting ``and in
accordance with the requirements for
executing and returning such a
warrant'' after ``that title''; and
(ii) in subparagraph (B)--
(I) in clause (ii), by striking the
semicolon at the end and inserting a
period; and
(II) in the matter following clause
(ii), by striking ``except that delayed
notice may be given pursuant to section
2705 of this title.''; and
(B) by adding at the end the following:
``(3) Notice may not be delayed pursuant to section 2705 for a
disclosure under paragraph (1)(B)(i).'';
(3) in subsection (c)--
(A) in paragraph (1)(A)--
(i) by inserting ``and in accordance with
the requirements for executing and returning a
warrant'' after ``the procedures'';
(ii) by inserting ``and execution and
return'' after ``State warrant''; and
(iii) by inserting ``and in accordance with
the requirements for executing and returning
such a warrant'' after ``that title''; and
(B) by striking paragraph (3);
(4) in subsection (d), as amended by section 3(a) of this
Act, by adding at the end the following:
``(3) Requirements.--Orders under this subsection shall be
issued in accordance with the requirements for executing and
returning a warrant under the Federal Rules of Criminal
Procedure.''; and
(5) by adding at the end the following:
``(i) Service.--
``(1) In general.--A governmental entity receiving records
or information under subsection (a), (b), or (c) of this
section or seeking an order under section 3123 shall provide
notice prior to conducting the court-authorized surveillance to
the subscriber or customer or the person described in
subsection (b)(1)(A) of that section, as applicable, unless
notice is delayed in accordance with section 2705. If prior
notice is infeasible due to inadequate contact information, the
governmental entity shall provide the required notice within 7
days after receipt of adequate contact information from the
provider.
``(2) Other requirements.--For purposes of serving a copy
of a warrant or order described in this section and a receipt
for the warrant or order--
``(A) the person or persons whose wire or
electronic communications are obtained under the
warrant or order shall be the person or persons whose
property was searched or who possessed the information
that was seized or copied; and
``(B) service of the copy of the warrant or order
and the receipt may only be delayed in accordance with
section 2705.''.
(b) Writs.--Section 1651 of title 28, United States Code, is
amended by adding at the end the following:
``(c) In seeking an order to a third party under this section, the
Federal Government shall comply with any requirement for notice
applicable to warrants issued under the Federal Rules of Criminal
Procedure.''.
(c) Voluntary Disclosure of Customer Communications or Records.--
Section 2702 of title 18, United States Code, is amended by adding at
the end the following:
``(e) Notice.--If a governmental entity requests and receives a
voluntary disclosure from a provider described in subsection (a)--
``(1) the contents of communications pursuant to subsection
(b)(8); or
``(2) a record or other information pertaining to a
subscriber to or customer of such service pursuant to
subsection (c)(4),
the governmental entity shall within 7 days provide notice to the
subscriber or customer, unless notice is delayed in accordance with
section 2705.''.
SEC. 5. DELAY AND PRECLUSION OF REQUIRED NOTICE.
(a) In General.--Section 2705 of title 18, United States Code, is
amended to read as follows:
``Sec. 2705. Delay and preclusion of notice
``(a) Delay of Required Notice to Customer or Subscriber.--
``(1) In general.--A governmental entity acting under
section 2702, 2703, or section 3123 may apply to a court for an
order delaying the required notice to the person whose wire or
electronic communications or records or information are
obtained.
``(2) Warrants and orders.--The court may enter an order
described in paragraph (1) with respect to a warrant or order
only if the warrant or order is sealed in accordance with
chapter 206A, and only for the period during which the sealing
order is in effect.
``(3) Subpoenas and emergency requests.--
``(A) In general.--The court shall enter an order
described in paragraph (1) with respect to a subpoena
or emergency request for a period not to exceed 180
days after the return date of the subpoena or the
emergency request if the governmental entity certifies
that there is reason to believe that failure to issue
the order will have an adverse result described in
section 3132(a)(2)(B).
``(B) Extensions.--
``(i) In general.--The court shall grant a
single extension of an order described in
paragraph (1) with respect to a subpoena or
emergency request for a period not to exceed
180 days upon the governmental entity's motion,
based on a renewed certification that failure
to extend the order will have an adverse result
described in section 3132(a)(2)(B).
``(ii) Subsequent extensions.--
``(I) In general.--For any
extension after an extension under
clause (i), the court may grant an
extension of an order described in
paragraph (1) with respect to a
subpoena or emergency request for up to
180 days, upon the governmental
entity's motion, if the governmental
entity demonstrates a particularized
showing described in subitems (AA) and
(BB) of section 3132(a)(2)(C)(I)(aa)
and details the information described
in item (bb) of section
3132(a)(2)(C)(I).
``(II) Redacted documents.--The
court shall consider and order
redactions under this clause in
accordance with the procedures under
section 3132(a)(2)(C)(II).
``(C) Review by court.--The court may, in its
discretion, require the governmental entity to provide
the factual basis for the certification described in
subparagraph (A) and may review that factual basis for
sufficiency.
``(D) Notification.--
``(i) In general.--A governmental entity
shall promptly notify the court once the
governmental entity no longer has reason to
believe that the order is necessary to prevent
an adverse result described in section
3132(a)(2)(B).
``(ii) Revocation.--After being notified by
the governmental entity under clause (i), the
court shall revoke the order.
``(b) Preclusion of Notice to Subject of Governmental Access.--
``(1) Authority.--
``(A) In general.--Except as provided in paragraph
(2) a governmental entity acting under section 2703 or
section 3123 may apply to a court for--
``(i) an order commanding a provider of
electronic communications service or remote
computing service to whom a criminal
surveillance order, as defined in section 3131,
or subpoena is directed, not to notify any
other person of the existence of the criminal
surveillance order or subpoena; or
``(ii) an order commanding a person owning
or leasing the line or other facility to which
the pen register or a trap and trace device is
attached or applied, or who is obligated by the
order to provide assistance to the applicant,
not to notify any other person of the existence
of a pen register or trap and trace device, as
such terms are defined in section 3127.
``(B) Criminal surveillance orders.--The court may
enter an order described in subparagraph (A) with
respect to a criminal surveillance order only if the
criminal surveillance order is sealed in accordance
with chapter 206A, and only for the period during which
the sealing order is in effect.
``(C) Subpoenas.--
``(i) In general.--The court shall enter an
order described in subparagraph (A) with
respect to a subpoena for a period not to
exceed 180 days after the return date of the
subpoena if the governmental entity certifies
that there is reason to believe that failure to
issue the order will have an adverse result
described in section 3132(a)(2)(B).
``(ii) Extensions.--
``(I) In general.--The court shall
grant a single extension of an order
described in subparagraph (A) with
respect to a subpoena for a period not
to exceed 180 days upon the
governmental entity's motion, based on
a renewed certification that failure to
extend the order will have an adverse
result described in section
3132(a)(2)(B).
``(II) Subsequent extensions.--
``(aa) In general.--For any
extension after an extension
under subclause (I), the court
may grant an extension of an
order described in subparagraph
(A) with respect to a subpoena
for up to 180 days, upon the
governmental entity's motion,
if the governmental entity
demonstrates a particularized
showing described in subitems
(AA) and (BB) of section
3132(a)(2)(C)(I)(aa) and
details the information
described in item (bb) of
section 3132(a)(2)(C)(I).
``(bb) Redacted
documents.--The court shall
consider and order redactions
under this subclause in
accordance with the procedures
under section
3132(a)(2)(C)(II).
``(iii) Review by court.--The court may, in
its discretion, require the governmental entity
to provide the factual basis for the
certification described in clause (i) and may
review that factual basis for sufficiency.
``(iv) Notification.--
``(I) In general.--A governmental
entity shall promptly notify the court
once the governmental entity no longer
has reason to believe that the order is
necessary to prevent an adverse result
described in section 3132(a)(2)(B).
``(II) Revocation.--After being
notified by the governmental entity,
the court shall revoke the order.
``(D) Limitations.--Preclusion of notice orders
that may be issued only under subparagraph (A)(i) to
criminal surveillance orders or subpoenas that are
listed in the preclusion of notice order.
``(2) Exceptions.--Paragraph (1) shall not apply to--
``(A) any person to whom disclosure is necessary in
order to comply with the request;
``(B) an attorney in order to obtain legal advice
or assistance regarding the request; or
``(C) any other person as permitted by the court.
``(3) Rule of construction.--Nothing in this subsection may
be construed to prohibit a recipient of an order under this
subsection from challenging the order on grounds that the order
violates the Constitution of the United States or, in the case
of an order issued by a State or Tribal court, the State or
Tribal constitution.
``(c) Reports Concerning Preclusion of Notice Orders.--
``(1) In general.--In January of each year, any judge who
has issued an order (or an extension thereof) under subsection
(b) that expired during the preceding year, or who has denied
approval of a request for a preclusion of notice order, shall
report to the Administrative Office of the United States
Courts--
``(A) the fact that an order or extension was
applied for;
``(B) the fact that the order or extension was
granted as applied for, was modified, or was denied;
``(C) the period of the preclusion of notice
required by the order, and the number and duration of
any extensions of the order;
``(D) the nature of the offense or criminal
investigation that was the basis for the underlying
criminal surveillance order;
``(E) the name of each provider of electronic
communication service or remote computing service
served with the order, if so granted; and
``(F) the investigative or law enforcement agency
that submitted the application.
``(2) Public report.--In June of each year, the Director of
the Administrative Office of the United States Courts shall
publish on the website of the Administrative Office of the
United States Courts and include in the report required under
section 2519(3)--
``(A) a full and complete report concerning--
``(i) the number of applications for orders
authorizing or approving the preclusion of
notice pursuant to this section; and
``(ii) the number of orders and extensions
granted or denied pursuant to this section
during the preceding calendar year; and
``(B) a detailed summary and analysis of each
category of data required to be reported under
paragraph (1).
``(3) Format.--Not later than 180 days after the date of
enactment of this section, the Director of the Administrative
Office of the United States Courts shall, in consultation with
the National Institute of Standards and Technology and the
Administrator of General Services, private entities offering
electronic case management software, the National Center for
State Courts, and the National American Indian Court Judges
Association, publish a machine readable form that shall be used
for any report required under paragraph (1).
``(4) Regulations.--The Director of the Administrative
Office of the United States Courts may promulgate regulations
with respect to the content and form of the reports required
under paragraph (1).
``(d) Duration.--Any order issued under subsection (a) or (b)
before the effective date of chapter 206A shall be for a period of not
longer than 180 days.''.
(b) Additional Grounds for Issuing Warrant.--Section 3103a of title
18, United States Code, is amended--
(1) in subsection (b)(3), by inserting ``, not to exceed
180 days,'' after ``certain'';
(2) in subsection (c), by inserting ``, not to exceed 180
days'' before the period at the end; and
(3) in subsection (d)(1)--
(A) in subparagraph (C), by striking ``and'' at the
end;
(B) in subparagraph (D), by striking the period at
the end and inserting ``; and''; and
(C) by adding at the end the following:
``(E) the identification of the statute or rule of
law authorizing the search and seizure of property or
material.''.
(c) Technical and Conforming Amendment.--The table of sections for
chapter 121 of title 18, United States Code, is amended by striking the
item relating to section 2705 and inserting the following:
``2705. Delay and preclusion of notice.''.
SEC. 6. INCENTIVES FOR STATE AND TRIBAL COURTS TO IMPLEMENT
REQUIREMENTS.
(a) Amendments.--
(1) Stored communications.--Chapter 121 of title 18, United
States Code, is amended--
(A) in section 2703, as amended by section 4(a) of
this Act, by inserting after ``return procedures'' each
place the term appears the following: ``and containing
a certification that the court is acting in compliance
with chapter 206A''; and
(B) in section 2711(3)(B), by inserting ``that is
acting in compliance with chapter 206A'' after ``search
warrants''.
(2) Wiretapping.--Section 2516(2) of title 18, United
States Code, is amended by striking ``The principal prosecuting
attorney of any State'' and inserting ``If a State requires
that courts in the state comply with chapter 206A, the
principal prosecuting attorney of that State''.
(3) Pen registers and trap and trace devices.--Section
3122(a)(2) of title 18, United States Code, is amended by
inserting ``and if the State requires that courts in the state
comply with chapter 206A,'' after ``law,''.
(4) Full faith and credit.--The third undesignated
paragraph of section 1738 of title 28, United States Code, is
amended by inserting ``, provided that any criminal
surveillance order, as defined in section 3131 of title 18,
shall be entitled to full faith and credit only if the order
contains a certification that the court that issued the order
is acting in compliance with the requirements of chapter 206A
of title 18'' before the period at the end.
(b) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsection (a) shall take effect on the date
that is 2 years after the date of enactment of this Act.
(2) Delayed applicability for certain state and tribal
courts.--The amendments made by subsection (a) shall apply on
and after the date that is 4 years after the date of enactment
of this Act--
(A) to a State or Tribal court that, on the date of
enactment of this Act, does not offer electronic
docketing or public online access to dockets; or
(B) to any State or Tribal court that certifies
that the court needs more time to comply with the
requirements of the subsection.
SEC. 7. MODERNIZING CRIMINAL SURVEILLANCE REPORTS.
(a) Reports Concerning Access to Customer Communications or
Records.--
(1) In general.--Section 2703 title 18, United States Code,
as amended by section 4(5) of this Act, is amended by adding at
the end the following:
``(j) Reports Concerning Access to Customer Communications or
Records.--
``(1) In general.--In January of each year, any judge who
has issued an order under this section or a warrant to obtain
records described in this section, or who has denied approval
of an application under this section during the preceding year,
shall report to the Administrative Office of the United States
Courts--
``(A) the fact that the order or warrant was
applied for;
``(B) the type of records sought in the order or
warrant;
``(C) whether the order or warrant was--
``(i) granted as applied for;
``(ii) granted as modified; or
``(iii) denied;
``(D) the subsection of this section under which
the application for the order or warrant was filed;
``(E) the nature of the offense or criminal
investigation that was the basis for the application
for the order or warrant;
``(F) the name of each provider of electronic
communication service or remote computing service
served with the order or warrant, if so granted; and
``(G) the investigative or law enforcement agency
that submitted the application.
``(2) Public report.--In June of each year, the Director of
the Administrative Office of the United States Courts shall
publish on the website of the Administrative Office of the
United States Courts and include in the report required under
section 2519(3)--
``(A) a full and complete report concerning the
number of applications for orders or warrants requiring
the disclosure of, during the preceding calendar year--
``(i) the contents of wire or electronic
communications in electronic storage under
subsection (a);
``(ii) the contents of wire or electronic
communications in a remote computer service
under subsection (b); and
``(iii) records concerning electronic
communication service or remote computer
service under subsection (c);
``(B) the number of orders and warrants granted or
denied under this section during the preceding calendar
year; and
``(C) a detailed summary and analysis of each
category of data required to be filed with the
Administrative Office of the United States Courts under
paragraph (1).
``(3) Format.--Not later than 180 days after the date of
enactment of the Government Surveillance Transparency Act of
2023, the Director of the Administrative Office of the United
States Courts shall, in consultation with the National
Institute of Standards and Technology, the Administrator of
General Services, the Electronic Public Access Public User
Group, private entities offering electronic case management
software, the National Center for State Courts, and the
National American Indian Court Judges Association, publish a
machine readable form that shall be used for any report
required under paragraph (1).
``(4) Regulations.--The Director of the Administrative
Office of the United States Courts may issue binding
regulations with respect to the content and form of the reports
required under paragraph (1).''.
(2) Technical and conforming amendment.--Section 2519(3) of
title 18, United States Code, is amended, in the first
sentence, by inserting ``publish on the website of the
Administrative Office of the United States Courts'' before
``transmit''.
(b) Reports Concerning Pen Registers and Trap and Trace Devices.--
Section 3126 of title 18, United States Code, is amended to read as
follows:
``Sec. 3126. Reports concerning pen registers and trap and trace
devices
``(a) In General.--In January of each year, any judge who has
issued an order (or an extension thereof) under section 3123 that
expired during the preceding year, or who has denied approval of an
installation and use of a pen register or trap and trace device during
that year, shall report to the Administrative Office of the United
States Courts--
``(1) the fact that an order or extension was applied for;
``(2) the kind of order or extension applied for;
``(3) the fact that the order or extension was granted as
applied for, was modified, or was denied;
``(4) the period of installation and use of a pen register
or trap and trace device authorized by the order, and the
number and duration of any extensions of the order;
``(5) the offense specified in the order or application, or
extension of an order;
``(6) the precise nature of the facilities affected and the
precise nature of the information sought; and
``(7) the investigative or law enforcement agency that
submitted the application.
``(b) Public Report.--In June of each year, the Director of the
Administrative Office of the United States Courts shall publish on the
website of the Administrative Office of the United States Courts and
include in the report required under section 2519(3)--
``(1) a full and complete report concerning--
``(A) the number of applications for orders
authorizing or approving the installation and use of a
pen register or trap and trace device pursuant to this
chapter; and
``(B) the number of orders and extensions granted
or denied pursuant to this chapter during the preceding
calendar year; and
``(2) a detailed summary and analysis of each category of
data required to be reported under subsection (a).
``(c) Format.--Not later than 180 days after the date of enactment
of the Government Surveillance Transparency Act of 2023, the Director
of the Administrative Office of the United States Courts shall, in
consultation with the National Institute of Standards and Technology
and the Administrator of General Services, private entities offering
electronic case management software, the National Center for State
Courts, and the National American Indian Court Judges Association,
publish a machine readable form that shall be used for any report
required under subsection (a).
``(d) Regulations.--The Director of the Administrative Office of
the United States Courts may issue binding regulations with respect to
the content and form of the reports required under subsection (a).''.
(c) Reporting of Emergency Disclosures.--Section 2702(d) of title
18, United States Code, is amended, in the matter preceding paragraph
(1), by inserting ``and publish on the website of the Department of
Justice'' after ``Senate''.
SEC. 8. GRANTS.
(a) Definitions.--In this section--
(1) the term ``Indian Tribe'' has the meaning given such
term in section 102 of the Federally Recognized Indian Tribe
List Act of 1994 (25 U.S.C. 5130); and
(2) the term ``State'' means each of the several States of
the United States, the District of Columbia, the Commonwealth
of Puerto Rico, American Samoa, the Commonwealth of the
Northern Mariana Islands, Guam, and the United States Virgin
Islands.
(b) Authority.--The Attorney General shall make grants to State and
Tribal court systems for the cost of implementing the requirements
under the amendments made by this Act for the 5-year period beginning
on the date of enactment of this Act.
(c) Maximum Amount.--The total amount of grants awarded under this
section shall be not greater than $25,000,000.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated--
(1) $1,000,000 to the Administrative Office of the United
States Courts to implement the requirements of this Act and the
amendments made by this Act; and
(2) $25,000,000 to carry out the grant program under
section 8.
SEC. 10. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such a provision or amendment to any person or
circumstance, is held to be unconstitutional, the remaining provisions
of and amendments made by this Act, and the application of the
provision or amendment held to be unconstitutional to any other person
or circumstance, shall not be affected thereby.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
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