Discussion Draft BAG16460 114TH CONGRESS 2D SESSION S.L.C. S. ll To require the provision of data in an intelligible format to a government pursuant to a court order, and for other purposes. IN THE SENATE OF THE UNITED STATES llllllllll llllllllll introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To require the provision of data in an intelligible format to a government pursuant to a court order, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Compliance with Court 5 Orders Act of 2016’’. 6 7 8 SEC. 2. SENSE OF CONGRESS. It is the sense of Congress that— (1) no person or entity is above the law; Discussion Draft BAG16460 S.L.C. 2 1 (2) economic growth, prosperity, security, sta- 2 bility, and liberty require adherence to the rule of 3 law; 4 (3) the Constitution and laws of the United 5 States provide for the safety, security, and civil lib- 6 erties of all United States persons and the protec- 7 tions and obligations of these laws apply to all per- 8 sons within United States jurisdiction; 9 (4) all providers of communications services and 10 products (including software) should protect the pri- 11 vacy of United States persons through implementa- 12 tion of appropriate data security and still respect the 13 rule of law and comply with all legal requirements 14 and court orders; 15 (5) to uphold both the rule of law and protect 16 the interests and security of the United States, all 17 persons receiving an authorized judicial order for in- 18 formation or data must provide, in a timely manner, 19 responsive, intelligible information or data, or appro- 20 priate technical assistance to obtain such informa- 21 tion or data; and 22 (6) covered entities must provide responsive, in- 23 telligible information or data, or appropriate tech- 24 nical assistance to a government pursuant to a court 25 order. Discussion Draft BAG16460 S.L.C. 3 1 SEC. 3. REQUIREMENT FOR PROVIDING DATA IN AN INTEL- 2 LIGIBLE 3 COURT ORDER. 4 5 FORMAT UPON RECEIPT OF A (a) REQUIREMENT.— (1) IN GENERAL.—Notwithstanding any other 6 provision of law and except as provided in paragraph 7 (2), a covered entity that receives a court order from 8 a government for information or data shall— 9 10 (A) provide such information or data to such government in an intelligible format; or 11 (B) provide such technical assistance as is 12 necessary to obtain such information or data in 13 an intelligible format or to achieve the purpose 14 of the court order. 15 (2) SCOPE OF REQUIREMENT.—A covered enti- 16 ty that receives a court order referred to in para- 17 graph (1)(A) shall be responsible only for providing 18 data in an intelligible format if such data has been 19 made unintelligible by a feature, product, or service 20 owned, controlled, created, or provided, by the cov- 21 ered entity or by a third party on behalf of the cov- 22 ered entity. 23 (3) COMPENSATION FOR TECHNICAL ASSIST- 24 ANCE.—A 25 from a government as described in paragraph (1) 26 and furnishes technical assistance under subpara- covered entity that receives a court order Discussion Draft BAG16460 S.L.C. 4 1 graph (B) of such paragraph pursuant to such order 2 shall be compensated for such costs as are reason- 3 ably necessary and which have been directly incurred 4 in providing such technical assistance or such data 5 in an intelligible format. 6 (b) DESIGN LIMITATIONS.—Nothing in this Act may 7 be construed to authorize any government officer to re8 quire or prohibit any specific design or operating system 9 to be adopted by any covered entity. 10 (c) LICENSE DISTRIBUTORS.—A provider of remote 11 computing service or electronic communication service to 12 the public that distributes licenses for products, services, 13 applications, or software of or by a covered entity shall 14 ensure that any such products, services, applications, or 15 software distributed by such person be capable of com16 plying with subsection (a). 17 SEC. 4. DEFINITIONS. 18 In this Act: 19 (1) COMMUNICATION IDENTIFYING INFORMA- 20 TION.—The 21 mation’’ means dialing, routing, addressing, sig- 22 naling, switching, processing, transmitting, or other 23 information that— 24 25 term ‘‘communication identifying infor- (A) does not constitute the contents of a communication; BAG16460 Discussion Draft S.L.C. 5 1 (B) identifies or assists in the identifica- 2 tion of the origin, direction, destination, date, 3 time, duration, termination, or status of each 4 communication generated, received, or con- 5 trolled by a user; and 6 7 8 9 (C) includes the following information or the equivalent function thereof: (i) Public and local source and destination addressing, including— 10 (I) the local network and public 11 Internet Protocol addresses or any 12 similar or successor protocol; and 13 (II) addressing information that 14 may be dynamically or privately as- 15 signed, including port numbers or any 16 successor addressing method. 17 (ii) Addresses or other information 18 that uniquely identifies the equipment, fa- 19 cility, or service used to access a provider 20 or network by each party to the commu- 21 nication. 22 (iii) Service addresses and identifiers 23 generated or received by each party to the 24 communication. Discussion Draft BAG16460 S.L.C. 6 1 (iv) Information identifying quantity 2 or quality of the communication, including 3 packet size, quality of service information, 4 or other information from which the size or 5 priority of the communication can be 6 ascertained. 7 (v) Specification of the time zone as 8 an offset from Coordinated Universal Time 9 (UTC). 10 (2) COMMUNICATION.—The term ‘‘communica- 11 tion’’ has the same meaning as the terms ‘‘wire com- 12 munication’’, ‘‘oral communication’’, and ‘‘electronic 13 communication’’ in section 2510 of title 18, United 14 States Code. 15 (3) COURT ORDER.—The term ‘‘court order’’ 16 means any order or warrant issued by a court of 17 competent jurisdiction to investigate or prosecute— 18 (A) a crime resulting in death or serious 19 bodily harm or a threat of death or serious bod- 20 ily harm; 21 (B) foreign intelligence, espionage, and ter- 22 rorism, including an offense listed in chapter 23 113B of title 18, United States Code; BAG16460 Discussion Draft S.L.C. 7 1 (C) a Federal crime against a minor, in- 2 cluding sexual exploitation and threats to phys- 3 ical safety; 4 (D) a serious violent felony (as defined in 5 section 3559 of title 18, United States Code); 6 (E) a serious Federal drug crime, includ- 7 ing the offense of continuing criminal enterprise 8 described in section 408 of the Controlled Sub- 9 stances Act (21 U.S.C. 848); or 10 (F) State crimes equivalent to those in 11 subparagraphs (A), (B), (C), (D), and (E). 12 (4) COVERED ENTITY.—The term ‘‘covered en- 13 tity’’ means a device manufacturer, a software man- 14 ufacturer, an electronic communication service, a re- 15 mote computing service, a provider of wire or elec- 16 tronic communication service, a provider of a remote 17 computing service, or any person who provides a 18 product or method to facilitate a communication or 19 the processing or storage of data. 20 (5) DATA.—The term ‘‘data’’ includes— 21 (A) communications and any information 22 concerning the identity of the parties to such 23 communications or the existence, substance, 24 purport, or meaning of such communications; Discussion Draft BAG16460 S.L.C. 8 1 (B) information stored remotely or on a 2 device provided, designed, licensed, or manufac- 3 tured by a covered entity; 4 (C) communication identifying information; 5 and 6 (D) information identifying a specific de- 7 vice. 8 (6) ELECTRONIC COMMUNICATION SERVICE.— 9 The term ‘‘electronic communication service’’ has 10 the meaning given such term in section 2510 of title 11 18, United States Code. 12 (7) FEATURE.—The term ‘‘feature’’ means a 13 property or function of a device or software applica- 14 tion. 15 (8) GOVERNMENT.—The term ‘‘government’’ 16 means the Government of the United States and the 17 government of the District of Columbia, or any com- 18 monwealth, territory, or possession of the United 19 States, of an Indian tribe, or of any State or polit- 20 ical subdivision thereof. 21 (9) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 22 has the meaning given such term in section 4 of the 23 Indian Self-Determination and Education Assistance 24 Act (25 U.S.C. 450b). Discussion Draft BAG16460 S.L.C. 9 1 2 (10) INTELLIGIBLE.—The term ‘‘intelligible’’, with respect to information or data, means— 3 (A) the information or data has never been 4 encrypted, enciphered, encoded, modulated, or 5 obfuscated; or 6 (B) the information or data has been 7 encrypted, enciphered, encoded, modulated, or 8 obfuscated and then decrypted, deciphered, de- 9 coded, demodulated, or deobfuscated to its 10 original form. 11 (11) REMOTE COMPUTING SERVICE.—The term 12 ‘‘remote computing service’’ has the meaning given 13 such term in section 2711 of title 18, United States 14 Code. 15 (12) TECHNICAL ASSISTANCE.—The term 16 ‘‘technical assistance’’, with respect to a covered en- 17 tity that receives a court order pursuant to a provi- 18 sion of law for information or data described in sec- 19 tion 3(a)(1), includes— 20 (A) isolating such information or data; 21 (B) rendering such information or data in 22 an intelligible format if the information or data 23 has been made unintelligible by a feature, prod- 24 uct, or service owned, controlled, created, or Discussion Draft BAG16460 S.L.C. 10 1 provided by the covered entity or by a third 2 party on behalf of the covered entity; and 3 (C) delivering such information or data— 4 (i) concurrently with its transmission; 5 6 7 or (ii) expeditiously, if stored by a covered entity or on a device.