OLL20597 S.L.C. 116TH CONGRESS 2D SESSION S. ll To improve the ability of law enforcement agencies to access encrypted data, and for other purposes. IN THE SENATE OF THE UNITED STATES llllllllll Mr. GRAHAM (for himself, Mr. COTTON, and Mrs. BLACKBURN) introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To improve the ability of law enforcement agencies to access encrypted data, 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 ‘‘Lawful Access to 5 Encrypted Data Act’’. 6 7 SEC. 2. TABLE OF CONTENTS. The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. TITLE I—DATA AT REST Sec. 101. Data at rest. V4Y R5 T6Z OLL20597 S.L.C. 2 TITLE II—DATA IN MOTION Sec. 201. Assistance. Sec. 202. Capability. Sec. 203. CALEA amendment. TITLE III—ASSISTANCE CAPABILITY DIRECTIVES Sec. 301. Assistance capability directives. TITLE IV—PEN REGISTER AND TRAP AND TRACE AMENDMENTS Sec. 401. Capability requirements. Sec. 402. Defining technical assistance. TITLE V—FISA AMENDMENTS Sec. 501. Electronic surveillance within the United States for foreign intelligence purposes. Sec. 502. Physical searches within the United States for foreign intelligence purposes. Sec. 503. Pen register; trap and trace. Sec. 504. Business records. Sec. 505. Certain acquisitions inside the United States targeting United States persons outside the United States. TITLE VI—PRIZE COMPETITION Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 601. 602. 603. 604. 605. 606. 607. 608. Findings. Definitions. Prize competition. Implementation. Judges. Report to Congress. Authorization of appropriations. Termination of authority. TITLE VII—LAWFUL ACCESS TRAINING Sec. 701. Lawful access training program. TITLE VIII—EFFECTIVE DATE Sec. 801. Effective date. TITLE I—DATA AT REST 1 2 3 SEC. 101. DATA AT REST. (a) IN GENERAL.—Chapter 205 of title 18, United 4 States Code, is amended by adding at the end the fol5 lowing: V4Y R5 T6Z OLL20597 S.L.C. 3 1 ‘‘§ 3119. Assistance orders to third parties and capa2 3 4 5 bility requirements ‘‘(a) DEFINITIONS.—In this section— ‘‘(1) the term ‘consumer electronic device’ means a device that— 6 7 ‘‘(A) may be purchased by a member of the general public; and 8 9 10 11 ‘‘(B) can be configured to store 1 gigabyte of data or more; ‘‘(2) the term ‘court of competent jurisdiction’ means— 12 ‘‘(A) a district court of the United States 13 (including a magistrate judge of such a court) 14 or a United States court of appeals; and 15 ‘‘(B) a court of general criminal jurisdic- 16 tion of a State authorized by the law of that 17 State to issue search warrants; 18 ‘‘(3) the term ‘device manufacturer’ means a 19 person who designs, manufactures, fabricates, or as- 20 sembles a finished consumer electronic device; 21 22 ‘‘(4) the term ‘governmental entity’ has the meaning given the term in section 2711; 23 ‘‘(5) the term ‘operating system provider’ 24 means a person who designs, markets, or sells soft- 25 ware that— V4Y R5 T6Z OLL20597 S.L.C. 4 1 2 ‘‘(A) controls the operation of a consumer electronic device; and 3 ‘‘(B) directs the processing of programs on 4 the consumer electronic device (such as by as- 5 signing storage space in memory and control- 6 ling input and output functions); 7 ‘‘(6) the term ‘remote computing service’ has 8 the meaning given the term in section 2711; and 9 ‘‘(7) the term ‘State’ means any State of the 10 United States, the District of Columbia, the Com- 11 monwealth of Puerto Rico, and any territory or pos- 12 session of the United States. 13 ‘‘(b) COURT ORDER FOR ASSISTANCE.— 14 ‘‘(1) IN GENERAL.—A court of competent juris- 15 diction, in support of a search warrant based upon 16 probable cause issued by the court that authorizes 17 the search of an electronic device or remotely stored 18 electronic information, shall, upon receiving a mo- 19 tion described in paragraph (3) that states reason- 20 able grounds to believe that the assistance required 21 by the order will aid in the execution of the warrant, 22 order a device manufacturer, an operating system 23 provider, a provider of remote computing service, or 24 another person to furnish all information, facilities, 25 and assistance necessary to access information V4Y R5 T6Z OLL20597 S.L.C. 5 1 stored on an electronic device or to access remotely 2 stored electronic information, as authorized by the 3 search warrant. 4 ‘‘(2) ASSISTANCE.—The information, facilities, 5 and assistance ordered to be furnished under para- 6 graph (1) shall include— 7 8 ‘‘(A) isolating the information authorized to be searched; 9 ‘‘(B) decrypting or decoding information 10 on the electronic device or remotely stored elec- 11 tronic information that is authorized to be 12 searched, or otherwise providing such informa- 13 tion in an intelligible format, unless the inde- 14 pendent actions of an unaffiliated entity make 15 it technically impossible to do so; and 16 ‘‘(C) providing technical support as nec- 17 essary to ensure effective execution of the war- 18 rant for the electronic devices particularly de- 19 scribed by the warrant. 20 ‘‘(3) MOTION.—An attorney for a governmental 21 entity may move that the court issue an order under 22 this subsection— 23 ‘‘(A) after a search warrant that author- 24 izes the search of an electronic device or re- V4Y R5 T6Z OLL20597 S.L.C. 6 1 motely stored electronic information has been 2 issued; or 3 ‘‘(B) concurrently with an application for a 4 search warrant described in subparagraph (A). 5 ‘‘(4) COMPENSATION 6 AND EXEMPTION FROM LI- ABILITY.— 7 ‘‘(A) IN GENERAL.—Subject to subpara- 8 graph (B), a device manufacturer, operating 9 system provider, provider of remote computing 10 service, or other person furnishing information, 11 facilities, or assistance pursuant to an order 12 issued under this subsection— 13 ‘‘(i) shall be compensated for reason- 14 able expenses directly incurred in com- 15 plying with the order; and 16 ‘‘(ii) may not be held civilly liable to 17 any party for any action taken that is rea- 18 sonably necessary to comply with the 19 order. 20 ‘‘(B) LIMITATION.—Reasonable expenses 21 under subparagraph (A) may not exceed $300. 22 23 ‘‘(c) CAPABILITY TO ASSIST.— ‘‘(1) DEVICE MANUFACTURERS.—A device man- 24 ufacturer that sold more than 1,000,000 consumer 25 electronic devices in the United States in 2016 or V4Y R5 T6Z OLL20597 S.L.C. 7 1 any calendar year thereafter, or that has received an 2 assistance capability directive under section 3513, 3 shall ensure that the manufacturer has the ability to 4 provide the assistance described in subsection (b)(2) 5 for any consumer electronic device that the manufac- 6 turer— 7 8 ‘‘(A) designs, manufactures, fabricates, or assembles; and 9 ‘‘(B) intends for sale or distribution in the 10 United States. 11 ‘‘(2) PROVIDERS OF REMOTE COMPUTING SERV- 12 ICE; OPERATING SYSTEM PROVIDERS.—A 13 remote computing service or operating system pro- 14 vider that provided service to more than 1,000,000 15 subscribers or users in the United States in 2016 or 16 any calendar year thereafter, or that has received an 17 assistance capability directive under section 3513, 18 shall ensure that the provider has the ability to pro- 19 vide the assistance described in subparagraphs (A) 20 and (B) of subsection (b)(2) for any remotely stored 21 data that the provider processes or stores. 22 ‘‘(3) CONTRACTING provider of AUTHORIZED.—A device 23 manufacturer, provider of remote computing service, 24 or operating system provider may satisfy the obliga- 25 tions under this subsection by contracting with any V4Y R5 T6Z OLL20597 S.L.C. 8 1 other United States person or entity to provide the 2 required assistance. 3 ‘‘(4) COSTS.—A device manufacturer, provider 4 of remote computing service, or operating system 5 provider to which this subsection applies shall bear 6 the costs associated with the development of the ca- 7 pability required under this subsection, including 8 any contracting costs incurred by the device manu- 9 facturer, provider of remote computing service, or 10 operating system provider under paragraph (3), un- 11 less the manufacturer or provider has received an 12 assistance capability directive under section 3513.’’. 13 (b) TECHNICAL AND CONFORMING AMENDMENT.— 14 The table of sections for chapter 205 of title 18, United 15 States Code, is amended by adding at the end the fol16 lowing: ‘‘3119. Assistance orders to third parties and capability requirements.’’. 17 (c) APPLICABILITY.—The obligation under section 18 3119(c)(1) of title 18, United States Code, as added by 19 subsection (a), shall apply with respect to a consumer elec20 tronic device manufactured on or after the effective date 21 in section 801 of this Act. 22 23 24 TITLE II—DATA IN MOTION SEC. 201. ASSISTANCE. Section 2518(4) of title 18, United States Code, is 25 amended, in the undesignated matter following paragraph V4Y R5 T6Z OLL20597 S.L.C. 9 1 (e), by striking ‘‘with a minimum of interference with the 2 services that such service provider, landlord, custodian, or 3 person is according the person whose communications are 4 to be intercepted. Any provider of wire or electronic com5 munication service, landlord, custodian or other person 6 furnishing such facilities or technical assistance shall be 7 compensated therefor by the applicant for reasonable ex8 penses incurred in providing such facilities or assistance.’’ 9 and inserting the following: ‘‘in a manner designed to up10 hold the nondisclosure obligations under section 11 2511(2)(a)(ii). 12 Such furnishing of information, facilities, and technical as13 sistance shall include— 14 ‘‘(i) isolating all communications au- 15 thorized to be intercepted; 16 ‘‘(ii) decrypting, decoding, or other- 17 wise providing in an intelligible format the 18 communications authorized to be inter- 19 cepted, unless the independent actions of 20 an unaffiliated entity make it technically 21 impossible to do so; and 22 ‘‘(iii) delivering all communications 23 authorized to be intercepted securely, reli- 24 ably, and concurrently with their trans- 25 mission. V4Y R5 T6Z OLL20597 S.L.C. 10 1 Any provider of wire or electronic communication service, 2 landlord, custodian, or other person furnishing such infor3 mation, facilities, or technical assistance shall be com4 pensated therefor by the applicant for reasonable expenses 5 directly incurred in providing such information, facilities, 6 or assistance.’’. 7 8 SEC. 202. CAPABILITY. (a) IN GENERAL.—Chapter 119 of title 18, United 9 States Code, is amended by adding at the end the fol10 lowing: 11 ‘‘§ 2524. Capability requirements 12 ‘‘(a) IN GENERAL.—A provider of wire or electronic 13 communication service that had more than 1,000,000 14 monthly active users in the United States in January 2016 15 or any month thereafter, or has received an assistance ca16 pability directive under section 3513, shall ensure that the 17 provider has the ability to provide the information, facili18 ties, and technical assistance described in section 2518(4). 19 ‘‘(b) CALCULATION OF MONTHLY ACTIVE USERS.— 20 For purposes of subsection (a), the number of monthly 21 active users of a wire or electronic communication service 22 shall be calculated by taking the average of the number 23 of individual users or subscribers of the service that are 24 active per month in any calendar year. V4Y R5 T6Z OLL20597 S.L.C. 11 1 ‘‘(c) COSTS.—A provider of wire or electronic commu- 2 nication service to which subsection (a) applies shall bear 3 any costs associated with the development of the capability 4 required under that subsection, unless the provider has re5 ceived an assistance capability directive under section 6 3513.’’. 7 (b) TECHNICAL AND CONFORMING AMENDMENT.— 8 The table of sections for chapter 119 of title 18, United 9 States Code, is amended by adding at the end the fol10 lowing: ‘‘2524. Capability requirements.’’. 11 12 SEC. 203. CALEA AMENDMENT. (a) IN GENERAL.—Section 103(b)(3) of the Commu- 13 nications Assistance for Law Enforcement Act (47 U.S.C. 14 1002(b)(3)) is amended— 15 16 (1) by striking ‘‘, or ensuring the government’s ability to decrypt,’’; 17 (2) by striking ‘‘the encryption was provided’’ 18 and inserting ‘‘the means of encryption or other en- 19 coding was implemented by or facilitated’’; and 20 (3) by striking ‘‘and the carrier possesses the 21 information necessary to decrypt the communica- 22 tion’’. V4Y R5 T6Z OLL20597 S.L.C. 12 1 2 3 4 TITLE III—ASSISTANCE CAPABILITY DIRECTIVES SEC. 301. ASSISTANCE CAPABILITY DIRECTIVES. (a) IN GENERAL.—Chapter 223 of title 18, United 5 States Code, is amended by adding at the end the fol6 lowing: 7 ‘‘§ 3513. Assistance capability directives 8 ‘‘(a) DEFINITIONS.—The definitions in sections 2510 9 and 3119 shall apply to this section. 10 11 12 ‘‘(b) CONTENTS OF DIRECTIVES AND PROCEDURE FOR ISSUING.— ‘‘(1) AUTHORITY.— 13 ‘‘(A) IN GENERAL.—If the Attorney Gen- 14 eral makes the applicable finding with respect 15 to a person under paragraph (3), the Attorney 16 General may direct the person to create or 17 maintain any of the assistance capabilities de- 18 scribed in section 2518, 2524, 3119, 3127, or 19 3128. 20 ‘‘(B) WRITTEN DIRECTIVE.—A directive 21 issued under subparagraph (A) shall be in writ- 22 ing. 23 ‘‘(2) REQUIRED REPORTING.—Not later than 24 30 days after the date on which a person receives a 25 directive from the Attorney General under paraV4Y R5 T6Z OLL20597 S.L.C. 13 1 graph (1), the person shall report to the Attorney 2 General, or a designee of the Attorney General, on, 3 at a minimum— 4 ‘‘(A) any technical capabilities that the 5 person knows or expects to be necessary to im- 6 plement and comply with an anticipated court 7 order or other lawful authorization under sec- 8 tion 2518, 3119, or 3123; and 9 ‘‘(B) the timeline of the person for devel- 10 oping and deploying the technical capabilities 11 described in subparagraph (A). 12 ‘‘(3) FINDINGS.—The Attorney General may 13 issue a directive to a person under paragraph (1) 14 only if the Attorney General finds— 15 ‘‘(A) in the case of assistance capabilities 16 described in section 2518, 2524, or 3128 that 17 during the preceding calendar year, communica- 18 tions occurring over services the person offers, 19 provides, or has access to were subject to not 20 fewer than 5 court orders issued under— 21 ‘‘(i) chapter 119 of this title; or 22 ‘‘(ii) the Foreign Intelligence Surveil- 23 lance Act of 1978 (50 U.S.C. 1801 et 24 seq.); or V4Y R5 T6Z OLL20597 S.L.C. 14 1 ‘‘(B) in the case of assistance capabilities 2 described in section 3119, that, during the pre- 3 ceding calendar year, data stored in any device, 4 service, or operating system sold or licensed by 5 the person was subject to not fewer than 5 Fed- 6 eral or State search warrants. 7 ‘‘(4) RELEASE FROM LIABILITY.—No civil 8 cause of action shall lie in any court against a per- 9 son who receives a directive under paragraph (1) for 10 any action or omission reasonably necessary to com- 11 ply with the directive. 12 ‘‘(5) EFFECTIVE 13 OF DIRECTIVES.— 14 ‘‘(A) IN DATE AND EXPIRATION DATE GENERAL.—Subject to subpara- 15 graph (B), a directive issued under paragraph 16 (1) shall contain— 17 ‘‘(i) a date on which the directive 18 takes effect; and 19 ‘‘(ii) a date when the directive expires. 20 ‘‘(B) LIMITS.—A directive issued under 21 paragraph (1) may not— 22 ‘‘(i) take effect earlier than 180 days 23 after the date on which the directive is 24 issued; or V4Y R5 T6Z OLL20597 S.L.C. 15 1 ‘‘(ii) expire later than 2 years after 2 the date on which the directive takes ef- 3 fect. 4 ‘‘(6) REPORTING.—Not later than 30 days after 5 the date on which a directive issued under para- 6 graph (1) takes effect, the Attorney General shall 7 submit to the Committee on the Judiciary of the 8 Senate and the Committee on the Judiciary of the 9 House of Representatives a copy of the directive. 10 ‘‘(7) NO TECHNICAL DEMANDS.—A directive 11 issued to a person under paragraph (1) may not 12 specify technical means by which the person is re- 13 quired to implement the required capabilities. 14 ‘‘(c) CHALLENGES OF DIRECTIVES AND APPEAL.— 15 ‘‘(1) PETITION.—Not later than 30 days after 16 the date on which the Attorney General issues a di- 17 rective to a person under subsection (b), the person 18 may file a petition to modify or set aside the direc- 19 tive in the United States District Court for the Dis- 20 trict of Columbia. 21 ‘‘(2) CONSIDERATION 22 23 OF PETITION.— ‘‘(A) GRANT.—The court may grant a petition filed under paragraph (1) only if— 24 ‘‘(i) the directive does not meet the 25 requirements of this section; V4Y R5 T6Z OLL20597 S.L.C. 16 1 ‘‘(ii) the person filing the petition 2 demonstrates, by clear and convincing evi- 3 dence, that it is technically impossible for 4 the person to make any change to the way 5 the hardware, software, or other property 6 of the person behaves in order to comply 7 with the directive; or 8 ‘‘(iii) the directive is otherwise unlaw- 9 ful. 10 ‘‘(B) DENIAL.—If none of the bases for 11 granting a petition under subparagraph (A) are 12 met, the court shall deny the petition. 13 ‘‘(C) EX 14 PARTE REVIEW.— ‘‘(i) IN GENERAL.—In considering a 15 petition filed under paragraph (1), the 16 court may review any information that the 17 Attorney General, upon filing an affidavit 18 under oath that disclosure of the informa- 19 tion would harm the national security of 20 the United States or harm the enforcement 21 of criminal law, chooses to provide to the 22 court solely for ex parte review. 23 ‘‘(ii) NO WAIVER OF PRIVILEGE.—The 24 exercise of the authority under clause (i) 25 does not waive any applicable privilege. V4Y R5 T6Z OLL20597 S.L.C. 17 1 ‘‘(3) INITIAL REVIEW.— 2 ‘‘(A) DEADLINE.—Not later than 30 days 3 after the date on which a petition is filed under 4 paragraph (1), the court shall conduct an initial 5 review of the petition. 6 ‘‘(B) REVIEW.—If the court determines 7 that the petition does not consist of claims, de- 8 fenses, or other legal contentions that are war- 9 ranted by existing law or by a non-frivolous ar- 10 gument for extending, modifying, or reversing 11 existing law or for establishing new law, the 12 court shall immediately— 13 ‘‘(i) deny the petition; 14 ‘‘(ii) affirm the directive or any part 15 of the directive that is the subject of the 16 petition; and 17 ‘‘(iii) order the recipient to comply 18 with the directive or part thereof. 19 ‘‘(C) WRITTEN STATEMENT.—Upon mak- 20 ing a determination under subparagraph (B) or 21 promptly thereafter, the court shall provide a 22 written statement for the record of the reasons 23 for the determination. 24 ‘‘(4) PLENARY V4Y R5 T6Z REVIEW.— OLL20597 S.L.C. 18 1 ‘‘(A) DEADLINE.—If the court determines 2 that a petition filed under paragraph (1) re- 3 quires plenary review— 4 ‘‘(i) not later than 60 days after the 5 petition is filed, the court shall affirm, 6 modify, or set aside the directive that is 7 the subject of the petition; or 8 ‘‘(ii) if the court does not set aside 9 the directive by the date specified under 10 clause (i), the court shall immediately, or 11 in any event not later than 5 days there- 12 after— 13 ‘‘(I) affirm or affirm with modi- 14 fications the directive; and 15 ‘‘(II) order the person who re- 16 ceived the directive to comply with the 17 directive in its entirety or as modified. 18 ‘‘(B) WRITTEN STATEMENT.—Upon mak- 19 ing a determination under subparagraph (A) or 20 promptly thereafter, the court shall provide a 21 written statement for the record of the reasons 22 for the determination. 23 ‘‘(5) APPEALS.— 24 ‘‘(A) RIGHT 25 OF APPEAL.—The Attorney General or a person who receives a directive V4Y R5 T6Z OLL20597 S.L.C. 19 1 under subsection (b) may appeal a final order 2 of the district court under this subsection not 3 later than 30 days after entry of the order. 4 ‘‘(B) PROCEDURE.—The United States 5 Court of Appeals for the District of Columbia 6 Circuit shall expedite the consideration of any 7 appeal brought under this paragraph, and the 8 expense or effort required to comply with a di- 9 rective issued under subsection (b) shall not be 10 a basis for staying a final order of the district 11 court under this subsection pending appeal. 12 13 ‘‘(d) ENFORCEMENT OF DIRECTIVES.— ‘‘(1) FAILURE TO COMPLY.—If a person fails to 14 comply with a directive issued under subsection (b), 15 the Attorney General may file a petition for an order 16 to compel the person to comply with the directive in 17 the United States District Court for the District of 18 Columbia, which shall have jurisdiction to review the 19 petition. 20 ‘‘(2) EX 21 PARTE REVIEW.— ‘‘(A) IN GENERAL.—In considering a peti- 22 tion filed under paragraph (1), the court may 23 review any information that the Attorney Gen- 24 eral, upon filing an affidavit under oath that 25 disclosure of the information would harm the V4Y R5 T6Z OLL20597 S.L.C. 20 1 national security of the United States or harm 2 the enforcement of criminal law, chooses to pro- 3 vide to the court solely for ex parte review. 4 ‘‘(B) NO WAIVER OF PRIVILEGE.—The ex- 5 ercise of the authority under subparagraph (A) 6 does not waive any applicable privilege. 7 ‘‘(3) ORDER 8 TO COMPLY.— ‘‘(A) IN GENERAL.—Not later than 30 9 days after a petition is filed under paragraph 10 (1), the court shall issue an order requiring the 11 person to comply with the directive or any part 12 of the directive, as issued or as modified, if the 13 court finds that the directive meets the require- 14 ments of this section and is otherwise lawful. 15 ‘‘(B) WRITTEN STATEMENT.—Upon mak- 16 ing a determination under subparagraph (A) or 17 promptly thereafter, the court shall provide a 18 written statement for the record of the reasons 19 for the determination. 20 ‘‘(4) PENALTY.—Failure to obey an order 21 issued under paragraph (3) shall constitute con- 22 tempt of court. 23 ‘‘(5) PROCESS.—Any process under this sub- 24 section may be served in any judicial district in 25 which the recipient may be found or does business. V4Y R5 T6Z OLL20597 S.L.C. 21 1 ‘‘(6) APPEALS.— 2 ‘‘(A) RIGHT OF APPEAL.—The Attorney 3 General or a person who receives a directive 4 under subsection (b) may appeal a final order 5 of the district court under this subsection not 6 later than 30 days after entry of the order. 7 ‘‘(B) PROCEDURE.—The United States 8 Court of Appeals for the District of Columbia 9 Circuit shall expedite the consideration of any 10 appeal brought under this paragraph, and the 11 expense or effort required to comply with a di- 12 rective issued under subsection (b) shall not be 13 a basis for staying a final order of the district 14 court order under this subsection pending ap- 15 peal. 16 17 ‘‘(e) COST REIMBURSEMENT.— ‘‘(1) IN GENERAL.—Subject to paragraph (3), a 18 person who receives a directive under subsection (b) 19 shall be compensated therefor by the United States 20 for reasonable expenses directly incurred in com- 21 plying with the directive. 22 23 ‘‘(2) AMOUNT.—The amount of compensation provided under paragraph (1)— V4Y R5 T6Z OLL20597 S.L.C. 22 1 ‘‘(A) shall be mutually agreed upon by the 2 Attorney General and the person complying 3 with the directive; or 4 ‘‘(B) in the absence of an agreement under 5 subparagraph (A), shall be determined by the 6 United States District Court for the District of 7 Columbia.’’. 8 (b) TECHNICAL AND CONFORMING AMENDMENT.— 9 The table of sections for chapter 223 of title 18, United 10 States Code, is amended by adding at the end the fol11 lowing: ‘‘3513. Assistance capability directives.’’. 13 TITLE IV—PEN REGISTER AND TRAP AND TRACE AMENDMENTS 14 SEC. 401. CAPABILITY REQUIREMENTS. 12 15 (a) IN GENERAL.—Chapter 206 of title 18, United 16 States Code, is amended by adding at the end the fol17 lowing: 18 ‘‘§ 3128. Capability requirements 19 20 ‘‘(a) PEN REGISTER CAPABILITY.— ‘‘(1) IN GENERAL.—A wire or electronic com- 21 munication service provider that had more than 22 1,000,000 monthly active users in the United States 23 in January 2016 or any month thereafter shall en- 24 sure that the provider has the ability to provide the 25 information described in paragraphs (3) and (7) of V4Y R5 T6Z OLL20597 S.L.C. 23 1 section 3127 directly to law enforcement agencies in 2 an intelligible format unobtrusively and in a manner 3 designed to uphold the nondisclosure obligations 4 under section 3123(d)(2). 5 ‘‘(2) 6 USERS.—For 7 of monthly active users of a wire or electronic com- 8 munication service shall be calculated by taking the 9 average of the number of individual users or sub- 10 scribers of the service that are active per month in 11 any calendar year. 12 ‘‘(b) TRAP AND TRACE CAPABILITY.— 13 CALCULATION ‘‘(1) IN OF MONTHLY ACTIVE purposes of paragraph (1), the number GENERAL.—A provider of wire or elec- 14 tronic communication service that had more than 15 1,000,000 monthly users in the United States in 16 January 2016 or any month thereafter shall ensure 17 that the provider has the ability to provide the infor- 18 mation described in paragraphs (4) and (7) of sec- 19 tion 3127 directly to law enforcement agencies in an 20 intelligible format unobtrusively and in a manner de- 21 signed to uphold the nondisclosure obligations under 22 section 3123(d)(2). 23 ‘‘(2) 24 USERS.—For 25 of monthly active users of a wire or electronic com- V4Y R5 T6Z CALCULATION OF MONTHLY ACTIVE purposes of paragraph (1), the number OLL20597 S.L.C. 24 1 munication service shall be calculated by taking the 2 average of the number of individual users or sub- 3 scribers of the service that are active per month in 4 any calendar year. 5 ‘‘(c) COMPENSATION.— 6 ‘‘(1) IN GENERAL.—Subject to paragraph (2), a 7 provider of wire or electronic communication service 8 that provides the information described in paragraph 9 (3), (4), or (7) of section 3127 directly to a law en- 10 forcement agency shall be compensated for reason- 11 able expenses directly incurred in providing the in- 12 formation. 13 ‘‘(2) LIMITATION.—Reasonable expenses under 14 paragraph (1) may not exceed $150.’’. 15 (b) TECHNICAL AND CONFORMING AMENDMENT.— 16 The table of sections for chapter 206 of title 18, United 17 States Code, is amended by adding at the end the fol18 lowing: ‘‘3128. Capability requirements.’’. 19 20 SEC. 402. DEFINING TECHNICAL ASSISTANCE. Section 3127 of title 18, United States Code, is 21 amended— 22 23 24 25 (1) in paragraph (5), by striking ‘‘and’’ at the end; (2) in paragraph (6), by striking the period at the end and inserting ‘‘; and’’; and V4Y R5 T6Z OLL20597 S.L.C. 25 1 (3) by adding at the end the following: 2 ‘‘(7) the term ‘technical assistance’ includes— 3 ‘‘(A) isolating all dialing, routing, address- 4 ing, and signaling information authorized to be 5 acquired; 6 ‘‘(B) decrypting, decoding, or otherwise 7 providing in an intelligible format the dialing, 8 routing, addressing, and signaling information 9 authorized to be acquired, unless the inde- 10 pendent actions of an unaffiliated entity make 11 it technically impossible to do so; and 12 ‘‘(C) delivering all dialing, routing, ad- 13 dressing, and signaling information authorized 14 to be acquired securely, reliably, and concur- 15 rently with its transmission.’’. 16 17 TITLE V—FISA AMENDMENTS SEC. 501. ELECTRONIC SURVEILLANCE 18 UNITED 19 LIGENCE PURPOSES. 20 STATES FOR WITHIN FOREIGN THE INTEL- Title I of the Foreign Intelligence Surveillance Act 21 of 1978 (50 U.S.C. 1801 et seq.) is amended— 22 (1) in section 101 (50 U.S.C. 1801), by adding 23 at the end the following: 24 ‘‘(q) ‘Technical assistance’ includes— V4Y R5 T6Z OLL20597 S.L.C. 26 1 ‘‘(1) isolating all communications or informa- 2 tion authorized to be acquired; 3 ‘‘(2) decrypting, decoding, or otherwise pro- 4 viding in an intelligible format the communications 5 or information authorized to be acquired, unless the 6 independent actions of an unaffiliated entity make it 7 technically impossible to do so; and 8 ‘‘(3) delivering all communications or informa- 9 tion authorized to be acquired securely, reliably, and 10 concurrently with their transmission.’’; and 11 (2) in section 105(c)(2)(B), by striking 12 ‘‘produce a minimum of interference with the serv- 13 ices that such carrier, landlord, custodian, or other 14 person is providing that target of electronic surveil- 15 lance’’ and inserting ‘‘in a manner designed to mini- 16 mize the possibility of alerting the target whose com- 17 munications are to be intercepted’’. 18 SEC. 502. PHYSICAL SEARCHES WITHIN THE UNITED 19 STATES FOR FOREIGN INTELLIGENCE PUR- 20 POSES. 21 Title III of the Foreign Intelligence Surveillance Act 22 of 1978 (50 U.S.C. 1821 et seq.) is amended— 23 24 25 (1) in section 301 (50 U.S.C. 1821), by adding at the end the following: ‘‘(6) ‘Assistance’ includes— V4Y R5 T6Z OLL20597 S.L.C. 27 1 2 ‘‘(A) isolating all information, material, or property to be seized, reproduced, or altered; 3 ‘‘(B) decrypting, decoding, or otherwise 4 providing in an intelligible format the informa- 5 tion, material, or property to be seized, repro- 6 duced, or altered, unless the independent ac- 7 tions of an unaffiliated entity make it tech- 8 nically impossible to do so; and 9 ‘‘(C) providing technical support as nec- 10 essary to ensure effective execution of an order 11 under this title.’’; and 12 (2) in section 304(c)(2)(B) (50 U.S.C. 13 1824(c)(2)(B)), by striking ‘‘produce a minimum of 14 interference with the services that such landlord, 15 custodian, or other person is providing the target of 16 the physical search’’ and inserting ‘‘in a manner de- 17 signed to minimize the possibility of alerting the tar- 18 get of the physical search’’. 19 20 SEC. 503. PEN REGISTER; TRAP AND TRACE. Section 401 of the Foreign Intelligence Surveillance 21 Act of 1978 (50 U.S.C. 1841) is amended by adding at 22 the end the following: 23 ‘‘(5) The term ‘technical assistance’ includes— V4Y R5 T6Z OLL20597 S.L.C. 28 1 ‘‘(A) isolating all dialing, routing, address- 2 ing, and signaling information authorized to be 3 acquired; 4 ‘‘(B) decrypting, decoding, or otherwise 5 providing in an intelligible format the dialing, 6 routing, addressing, and signaling information 7 authorized to be acquired, unless the inde- 8 pendent actions of an unaffiliated entity make 9 it technically impossible to do so; and 10 ‘‘(C) delivering all dialing, routing, ad- 11 dressing, and signaling information authorized 12 to be acquired securely, reliably, and concur- 13 rently with its transmission.’’. 14 15 SEC. 504. BUSINESS RECORDS. Section 501(k) of the Foreign Intelligence Surveil- 16 lance Act of 1978 (50 U.S.C. 1861(k)) is amended by add17 ing at the end the following: 18 ‘‘(5) TECHNICAL 19 nical assistance’ includes— ASSISTANCE.—The term ‘tech- 20 ‘‘(A) isolating the tangible things (includ- 21 ing call detail records) required to be produced; 22 ‘‘(B) decrypting, decoding, or otherwise 23 providing in an intelligible format the tangible 24 things required to be produced, unless the inde- V4Y R5 T6Z OLL20597 S.L.C. 29 1 pendent actions of an unaffiliated entity make 2 it technically impossible to do so; and 3 ‘‘(C) delivering all tangible things required 4 to be produced securely, reliably, and no later 5 than the date on which an order under this title 6 requires their production.’’. 7 SEC. 505. CERTAIN ACQUISITIONS INSIDE THE UNITED 8 STATES TARGETING UNITED STATES PER- 9 SONS OUTSIDE THE UNITED STATES. 10 Section 703 of the Foreign Intelligence Surveillance 11 Act of 1978 (50 U.S.C. 1881b) is amended by adding at 12 the end the following: 13 ‘‘(h) ASSISTANCE DEFINED.— For purposes of this 14 section, the term ‘assistance’ includes— 15 16 ‘‘(1) isolating all communications or information authorized to be acquired; 17 ‘‘(2) decrypting, decoding, or otherwise pro- 18 viding in an intelligible format the communications 19 or information authorized to be acquired, unless the 20 independent actions of an unaffiliated entity make it 21 technically impossible to do so; 22 ‘‘(3) delivering the communications or informa- 23 tion authorized to be acquired securely, reliably, and 24 concurrently with their transmission; and V4Y R5 T6Z OLL20597 S.L.C. 30 1 ‘‘(4) providing technical support as necessary to 2 ensure effective execution of an order under this sec- 3 tion.’’. 4 5 6 TITLE VI—PRIZE COMPETITION SEC. 601. FINDINGS. Congress finds the following: 7 (1) The rapidly growing use of warrant-proof 8 encryption in everyday devices, platforms, and sys- 9 tems allows illegal actors engaged in dangerous 10 criminal activity—including child sexual abuse, ter- 11 rorism, and international narcotics trafficking—to 12 use encryption to shield their illicit activities from 13 authorities. 14 (2) Because of warrant-proof encryption, the 15 government often cannot obtain the electronic evi- 16 dence and intelligence necessary to investigate and 17 prosecute threats to public safety and national secu- 18 rity, even with a warrant or court order. This pro- 19 vides a ‘‘lawless space’’ that criminals, terrorists, 20 and other bad actors can exploit for their nefarious 21 ends. 22 (3) Many service providers, device manufactur- 23 ers, and application developers who use encryption 24 fail to implement technology that would allow the 25 government to obtain electronic evidence necessary V4Y R5 T6Z OLL20597 S.L.C. 31 1 to investigate and prosecute threats to public safety 2 and national security. 3 (4) The Fourth Amendment to the Constitution 4 of the United States strikes a balance between the 5 individual citizen’s reasonable expectation of privacy 6 on one hand, and on the other, the legitimate need 7 for the government to gain access to the most inti- 8 mate spaces in citizens’ lives in order to protect the 9 public from criminal actors. 10 (5) The Framers of the Constitution provided 11 specific barriers to government intrusion into the in- 12 dividual’s private, intimate space—namely, that the 13 government must show by probable cause that evi- 14 dence of a crime exists in that intimate space, and 15 must have a neutral magistrate, detached from the 16 law enforcement interest, approve law enforcement’s 17 request and issue a warrant. 18 (6) Once the government satisfies the burden of 19 showing probable cause to a neutral magistrate, the 20 government is entitled to search and seize evidence 21 of a crime in an individual’s private space. 22 (7) That careful balancing of interests estab- 23 lished by the Framers has continued to be calibrated 24 throughout the history of the United States as dif- 25 ferent challenges have arisen, including, most nota- V4Y R5 T6Z OLL20597 S.L.C. 32 1 bly, technological advances in daily life. For exam- 2 ple, Congress has imposed additional statutory re- 3 quirements that the government must meet and that 4 a judge must find satisfied before a court can au- 5 thorize interception of communications. But the in- 6 dividual’s right to privacy has never been absolute. 7 (8) If not addressed, criminal anonymity actu- 8 ated by end-to-end encryption technology will con- 9 tinue to pose a serious risk to the public. 10 (9) Nevertheless, advances in technology con- 11 tinue without due consideration of issues of lawful 12 access. 13 (10) Moreover, very little, if any, resources 14 from the private sector or from educational and re- 15 search institutions are devoted to finding techno- 16 logical solutions to providing lawful access within 17 different encrypted technological platforms. 18 (11) More resources should be devoted to 19 incentivizing the best minds in the United States to 20 research the issues described in this section and de- 21 cide how to best provide the most secure products 22 and services to customers while also providing law 23 enforcement access to information the government 24 needs to investigate criminals seeking to do the pub- 25 lic harm and to protect national security. V4Y R5 T6Z OLL20597 S.L.C. 33 1 SEC. 602. DEFINITIONS. 2 In this title: 3 (1) APPLICANT.—The term ‘‘applicant’’ means 4 an individual, group of individuals, organization, 5 nonprofit, or university that applies to participate in 6 the prize competition under this title. 7 (2) APPROPRIATE CONGRESSIONAL COMMIT- 8 TEES.—The 9 mittees’’ means the Committee on the Judiciary of 10 the Senate and the Committee on the Judiciary of 11 the House of Representatives. 12 term ‘‘appropriate congressional com- (3) ATTORNEY GENERAL.—Except as otherwise 13 provided, the term ‘‘Attorney General’’ means the 14 Attorney General, acting through the Director of the 15 National Institute of Justice. 16 17 18 (4) PRIZE.—The term ‘‘prize’’ means a cash prize. (5) PRIZE COMPETITION.—The term ‘‘prize 19 competition’’ means the prize competition estab- 20 lished under section 603. 21 SEC. 603. PRIZE COMPETITION. 22 (a) ESTABLISHMENT.—Not later than 180 days after 23 the date of enactment of this Act, the Attorney General 24 shall, subject to the availability of funds appropriated 25 under this title, establish in accordance with section 24 V4Y R5 T6Z OLL20597 S.L.C. 34 1 of the Stevenson-Wydler Technology Innovation Act of 2 1980 (15 U.S.C. 3719) a prize competition— 3 (1) to incentivize and encourage research and 4 innovation into solutions providing law enforcement 5 access to encrypted data pursuant to legal process; 6 and 7 (2) to award 1 or more prizes, not later than 8 1 year after the establishment of the prize competi- 9 tion, for technological solutions that provide law en- 10 forcement access to encrypted data pursuant to legal 11 process. 12 (b) REQUIREMENTS.—Technological solutions de- 13 scribed in subsection (a)(2) shall include— 14 (1) providing maximum security for the device, 15 platform, or system, consistent with the lawful ac- 16 cess solution, to reduce the opportunity for unlawful 17 hacking; and 18 (2) reducing or eliminating broad surveillance 19 capabilities not targeted at specified facilities or in- 20 dividuals pursuant to a warrant or order within the 21 lawful access solution. 22 (c) ELIGIBILITY.— 23 24 (1) IN GENERAL.—To be eligible to win a prize under the prize competition, an applicant— 25 (A) shall have complied with— V4Y R5 T6Z OLL20597 S.L.C. 35 1 (i) the requirements of the competi- 2 tion as described in the announcement for 3 the competition; and 4 (ii) subsections (g), (h), and (i) of sec- 5 tion 24 of the Stevenson-Wydler Tech- 6 nology Innovation Act of 1980 (15 U.S.C. 7 3719) (relating to eligibility); 8 (B) in the case of a private entity, shall be 9 incorporated in the United States and maintain 10 a primary place of business in the United 11 States; and 12 (C) in the case of an individual, whether 13 participating singly or in a group, shall be a cit- 14 izen of, or an alien lawfully admitted for perma- 15 nent residence in, the United States. 16 (2) EXCLUSIONS.—The following entities and 17 individuals shall not be eligible to win a prize under 18 the prize competition: 19 (A) A Federal entity. 20 (B) A Federal employee acting within the 21 22 scope of employment. (d) PRIORITIZATION.—In selecting the winner or win- 23 ners of the prize competition, the Attorney General shall 24 give priority to projects that— V4Y R5 T6Z OLL20597 S.L.C. 36 1 (1) incorporate a robust proof of concept model 2 demonstrating the feasibility of the proposed tech- 3 nology achieving the intended goals of the competi- 4 tion as described in paragraph (a); and 5 (2) include a strategy, submitted with the appli- 6 cation or proposal, to move the new technology, 7 hardware, or other processes to market-scale deploy- 8 ment. 9 10 SEC. 604. IMPLEMENTATION. (a) DUTIES.—In implementing the prize competition, 11 the Attorney General shall— 12 (1) advertise the prize competition; 13 (2) solicit participants; 14 (3) use amounts made available under section 15 607(a)— 16 17 (A) to administer the prize competition; and 18 (B) to award 1 or more prizes; 19 (4) develop criteria for the selection of winners; 20 (5) select judges under section 605 based on 21 22 23 criteria developed by the Attorney General; (6) announce, and award a prize to, 1 or more winners; V4Y R5 T6Z OLL20597 S.L.C. 37 1 (7) protect against unauthorized use or disclo- 2 sure of any trade secret or confidential business in- 3 formation of a participant; and 4 (8) promulgate any rules and regulations nec- 5 essary to carry out this title, including rules and 6 regulations for submitting and reviewing applica- 7 tions. 8 (b) AWARD.— 9 (1) RECOMMENDATION BY JUDGES.—After con- 10 ducting a thorough review of each of the applicant 11 submissions for the prize competition, the judges ap- 12 pointed under section 605 shall— 13 (A) submit in writing to the Attorney Gen- 14 eral a recommendation for an award to 1 or 15 more winners of the prize competition; or 16 (B) if the judges determine that none of 17 the applicant submissions merit an award, sub- 18 mit in writing to the Attorney General a rec- 19 ommendation that no applicant be awarded a 20 prize, including a detailed explanation stating 21 the reasons why no applicant merits an award. 22 (2) SELECTION 23 (A) IN BY ATTORNEY GENERAL.— GENERAL.—Not later than 1 year 24 after the date on which the Attorney General 25 establishes the prize competition, and after re- V4Y R5 T6Z OLL20597 S.L.C. 38 1 viewing the recommendation submitted under 2 paragraph (1), the Attorney General shall select 3 1 or more winners of the prize competition and 4 award a prize to each winner. 5 (B) RECOMMENDATION OF NO PRIZE.—If 6 the judges recommend under paragraph (1)(B) 7 that no applicant be awarded a prize, the Attor- 8 ney General may— 9 (i) select 1 or more award winners, 10 notwithstanding the recommendation of 11 the judges, and award a prize to each win- 12 ner; or 13 (ii) award no prize to any applicant. 14 (C) NOTIFICATION OF NO PRIZE.—If the 15 Attorney General determines not to award a 16 prize to any applicant under subparagraph 17 (B)(ii), the Attorney General shall notify the 18 appropriate congressional committees not later 19 than 90 days after that determination. 20 21 22 (c) ASSISTANCE FROM OTHER PARTIES.— (1) ADMINISTRATION BY THIRD PARTY ORGANI- ZATION.— 23 (A) IN GENERAL.—The Attorney General 24 may enter into an agreement, including a grant, 25 contract, or cooperative agreement, with a non- V4Y R5 T6Z OLL20597 S.L.C. 39 1 profit or for-profit third party organization, 2 under which the third-party organization ad- 3 ministers the prize competition. 4 (B) CONSULTATION; DIVISION OF AUTHOR- 5 ITY.—If 6 tract with a third party organization under sub- 7 paragraph (A), the third party organization 8 shall consult with the Attorney General on, and 9 the Attorney General shall have the authority to 10 the Attorney General enters into a con- make the final decision with respect to— 11 (i) the development of criteria for the 12 selection of prize competition winners 13 under subsection (a)(4); and 14 (ii) the selection of judges under sec- 15 tion 605. 16 (2) NON-FEDERAL FUNDS.—The Attorney Gen- 17 eral may solicit and receive non-Federal funds to ad- 18 minister the prize competition and award a prize. 19 20 SEC. 605. JUDGES. (a) APPOINTMENT.— The Attorney General shall ap- 21 point not fewer than 3 judges who shall, except as pro22 vided in section 604(b)(1)(B), recommend 1 or more win23 ners of the prize competition. 24 (b) QUALIFICATIONS.—Each judge appointed under 25 subsection (a) shall— V4Y R5 T6Z OLL20597 S.L.C. 40 1 (1) have subject matter expertise in cryptology 2 and encryption-related technology, including relevant 3 devices, platforms, and systems; 4 (2) have an understanding of— 5 (A) protections afforded to United States 6 citizens by the Constitution of the United 7 States against unreasonable searches and sei- 8 zures by the government; and 9 (B) the legal authorities that permit the 10 government to search and seize the personal ef- 11 fects of United States citizens, particularly with 12 respect to— 13 (i) the search and seizure of individ- 14 uals’ data from technological devices, plat- 15 forms, or systems; and 16 (ii) the interception of communica- 17 tions over technological devices, platforms, 18 or systems; and 19 (3) have experience with law enforcement capa- 20 bilities for lawful access to data and limitations on 21 lawful access to data across various technological de- 22 vices, platforms, and systems that use encrypted 23 technology. V4Y R5 T6Z OLL20597 S.L.C. 41 1 2 SEC. 606. REPORT TO CONGRESS. Not later than 90 days after the date on which the 3 Attorney General awards 1 or more prizes under section 4 604(b)(2), the Attorney General shall submit to the appro5 priate congressional committees a report on the prize com6 petition that includes— 7 (1) a statement by the Attorney General that 8 describes the activities carried out by the Attorney 9 General with respect to the duties described in sec- 10 tion 604(a); 11 (2) if the Attorney General has entered into an 12 agreement with a third party organization under 13 section 604(c)(1), a statement by the Attorney Gen- 14 eral that describes the activities carried out by the 15 third party organization with respect to the duties 16 described in section 604(c); and 17 (3) a statement by the Attorney General ex- 18 plaining the basis on which each winner of the prize 19 competition was selected. 20 21 22 SEC. 607. AUTHORIZATION OF APPROPRIATIONS. (a) AUTHORIZATION.— (1) IN GENERAL.—There are authorized to be 23 appropriated such sums as may be necessary, not to 24 exceed $50,000,000, to carry out this title. 25 26 (2) MINIMIZATION PENSES.—The V4Y R5 T6Z OF ADMINISTRATIVE EX- Attorney General shall make all rea- OLL20597 S.L.C. 42 1 sonable efforts to control the administrative ex- 2 penses of the prize competition so that the majority 3 of the amounts made available under paragraph (1) 4 are used for the prize or prizes awarded to the win- 5 ner or winners of the prize competition under section 6 603. 7 (b) APPROVAL OF CERTAIN AWARDS.—The value of 8 a prize awarded to a winner of the prize competition under 9 section 603 may not exceed $1,000,000 without the ap10 proval of the Attorney General or the Director of the Na11 tional Institute of Justice. 12 (c) REIMBURSEMENT OF EXPENSES.—A judge ap- 13 pointed under section 605 shall serve without pay, but 14 may be reimbursed for actual and necessary traveling and 15 subsistence expenses. 16 17 SEC. 608. TERMINATION OF AUTHORITY. The prize competition and all authority provided 18 under this title shall terminate on December 31, 2022. 19 20 21 22 23 TITLE VII—LAWFUL ACCESS TRAINING SEC. 701. LAWFUL ACCESS TRAINING PROGRAM. (a) DEFINITIONS.—In this section: (1) COOPERATIVE AGREEMENT.—The term ‘‘co- 24 operative agreement’’ means a legal instrument of fi- 25 nancial assistance between a Federal awarding agen- V4Y R5 T6Z OLL20597 S.L.C. 43 1 cy or pass-through entity and a non-Federal entity, 2 consistent with sections 6302 and 6305 of title 31, 3 United States Code. 4 (2) PROVIDER.—The term ‘‘provider’’ means— 5 (A) a device manufacturer, an operating 6 system provider, and a provider of remote com- 7 puting service, as those terms are defined in 8 section 3119 of title 18, United States Code, as 9 added by title I of this Act; and 10 (B) a provider of electronic communication 11 service, as defined in section 2510 of title 18, 12 United States Code. 13 (3) TRAINING PROGRAM.—The term ‘‘Training 14 Program’’ means the lawful access training and as- 15 sistance program established under subsection (b). 16 (b) ESTABLISHMENT.—The Attorney General shall 17 establish a lawful access training and real-time assistance 18 program that draws upon the resources of the National 19 Domestic Communications Center (commonly known as 20 the ‘‘NDCAC’’) and other relevant components of the De21 partment of Justice as appropriate. 22 (c) ACTIVITIES.— 23 (1) TRAINING.— 24 (A) IN 25 GENERAL.—The primary purpose of the Training Program shall be to provide train- V4Y R5 T6Z OLL20597 S.L.C. 44 1 ing and assistance for law enforcement per- 2 sonnel, with a particular emphasis on State and 3 local personnel, on relevant technology and 4 communications platforms, including how to 5 submit appropriately tailored applications for 6 digital evidence, consistent with existing legal 7 requirements and protections for privacy and 8 civil liberties. 9 (B) CONSULTATION.—The Attorney Gen- 10 eral may consult with providers regarding the 11 training and assistance under subparagraph 12 (A). 13 14 (C) CONTENTS.—Training and assistance under the Training Program shall include— 15 (i) designing and providing training to 16 distribute knowledge and expertise, includ- 17 ing— 18 (I) consulting with the most 19 qualified experts in law enforcement 20 and the technology industry to assist 21 in the development of all Training 22 Program materials; 23 (II) identifying current effective 24 law enforcement training programs 25 and tools; V4Y R5 T6Z OLL20597 S.L.C. 45 1 (III) identifying gaps in current 2 law enforcement training programs 3 and tools; 4 (IV) producing and maintaining 5 training materials and curricula that 6 will be used in classroom training ses- 7 sions as well as for distribution to law 8 enforcement agencies for reference; 9 (V) in coordination with pro- 10 viders, 11 guidance on accessing digital evidence 12 from specific providers to improve 13 outcomes with regard to particular 14 technology devices, platforms, or sys- 15 tems; and delivering information and 16 (VI) establishing and promoting 17 the use of a consistent set of clear 18 standards for securing and minimizing 19 data collected by law enforcement; 20 (ii) serving as a centralized repository 21 of knowledge and expertise about provider 22 systems and procedures for submitting re- 23 quests for data; 24 (iii) coordinating with Federal, State, 25 and international training programs, as V4Y R5 T6Z OLL20597 S.L.C. 46 1 well as any private-sector and nonprofit 2 initiatives; 3 (iv) building and maintaining analytic 4 and forensic tools to assist law enforce- 5 ment agencies in interpreting data that has 6 been obtained from service providers and 7 devices; 8 (v) hiring and employing technical 9 specialists that can help develop and main- 10 tain analytic and forensic tools; 11 (vi) conducting relevant research and 12 analysis to identify the greatest challenges 13 with respect to the ability of law enforce- 14 ment agencies to access and analyze digital 15 evidence; and 16 (vii) providing a call center for law en- 17 forcement officials to seek advice and as- 18 sistance regarding accessing and analyzing 19 digital evidence. 20 (2) OTHER FUNCTIONS.—In carrying out the 21 Training Program, the Attorney General shall de- 22 velop and coordinate additional functions to improve 23 lawful access to digital evidence, including the fol- 24 lowing: V4Y R5 T6Z OLL20597 S.L.C. 47 1 2 (A) IDENTIFYING SOURCES.—The AND PROVIDING RE- Attorney General shall— 3 (i) work with the Office of Justice 4 Programs to identify grants and other 5 grant-making bodies to support law en- 6 forcement access to digital evidence; and 7 (ii) include programs in the training 8 activities that inform law enforcement 9 agencies of the grants described in clause 10 (i) and other resources that support— 11 (I) training programs; 12 (II) development and distribution 13 of analytical tools; and 14 (III) maintenance of crime labs. 15 (B) DEVELOPMENT OF AUTHENTICATION 16 SYSTEM.—The 17 with providers and law enforcement agencies 18 from Federal, State, and local systems to iden- 19 tify options for, and develop, a system for 20 verifying that an individual requesting data 21 from a provider is a law enforcement official en- 22 titled to such access pursuant to lawful author- 23 ity. V4Y R5 T6Z Attorney General shall work OLL20597 S.L.C. 48 1 (C) COORDINATING INTERNATIONAL EF- 2 FORTS.—The 3 with international partners to— Attorney General shall coordinate 4 (i) help set baseline standards and 5 practices to lawfully access digital evi- 6 dence; 7 (ii) promote standards to ensure the 8 protection of privacy and civil liberties, and 9 to the extent practical and helpful, har- 10 monize efforts across borders. 11 (D) DEVELOPING 12 MASTER DATABASE.— The Attorney General shall— 13 (i) develop a master database to track 14 investigations in the United States in 15 which a law enforcement agency secured 16 the legal authority to access digital data 17 but otherwise cannot gain access to that 18 data in an intelligible format due to 19 encryption; and 20 (ii) through the training activities de- 21 scribed in paragraph (1), encourage the ro- 22 bust participation from State and local au- 23 thorities that is necessary to populate the 24 database described in clause (i) of this sub- 25 paragraph. V4Y R5 T6Z OLL20597 S.L.C. 49 1 (E) OTHER ACTIVITIES.—The Attorney 2 General, in carrying out the Training Program, 3 shall provide any additional activities and serv- 4 ices determined appropriate by the Attorney 5 General. 6 7 (d) FUNDING.— (1) AUTHORIZATION OF APPROPRIATIONS.— 8 There is authorized to be appropriated to the Attor- 9 ney General to carry out this section $50,000,000 10 for fiscal year 2020, which shall remain available 11 until expended. 12 (2) LIMITATION.—Not more than 5 percent of 13 the amount appropriated under paragraph (1) may 14 be used to carry out activities under subsection 15 (e)(2). 16 (e) COOPERATIVE AGREEMENT.— 17 (1) ASSISTANCE.—The Attorney General may 18 enter into a cooperative agreement with providers or 19 other persons to— 20 (A) provide regular training to law enforce- 21 ment agencies through the Training Program 22 on information that is potentially available from 23 devices, operating systems, remote computing 24 services, or electronic communication services, 25 and on provider policies, in order to facilitate V4Y R5 T6Z OLL20597 S.L.C. 50 1 tailored and specific applications from law en- 2 forcement agencies; 3 (B) maintain up-to-date and comprehen- 4 sive guidance for law enforcement agencies re- 5 garding accessing information from providers; 6 7 (C) develop or maintain online mechanisms to— 8 (i) receive law enforcement requests 9 for data; and 10 (ii) provide dated, electronic confirma- 11 tion of receipt of a request described in 12 clause (i); and 13 (D) assist with other tasks as determined 14 necessary by the NDCAC. 15 (2) DONATIONS.— 16 (A) IN GENERAL.—The NDCAC may so- 17 licit and accept donations for the Training Pro- 18 gram from providers or other persons to be 19 used to carry out this section. 20 (B) PRIVATE FUNDING REQUIREMENT.— 21 The NDCAC may not carry out the Training 22 Program during a fiscal year, including fiscal 23 year 2020, unless and until the NDCAC has re- 24 ceived funding for that fiscal year under sub- 25 paragraph (A) in an amount equal to the V4Y R5 T6Z OLL20597 S.L.C. 51 1 amount authorized to be appropriated for fiscal 2 year 2020 under subsection (d)(1). 3 4 (f) REPORT.— (1) IN GENERAL.—Not later than 1 year after 5 the effective date in section 801 of this Act, and 6 once thereafter not later than 2 years after that ef- 7 fective date, the NDCAC shall submit to the Com- 8 mittee on the Judiciary of the Senate and the Com- 9 mittee on the Judiciary of the House of Representa- 10 11 12 tives a report on the Training Program. (2) CONTENTS.— The report submitted under paragraph (1) shall include— 13 (A) ongoing efforts to identify and respond 14 to gaps in training and distribution of technical 15 tools; 16 (B) the state of cooperation with providers; 17 (C) novel uses of legal authorities; 18 (D) any new policies and best practices 19 being seriously considered or adopted; and 20 21 (E) funding contributed by private individuals, organizations, and entities. V4Y R5 T6Z OLL20597 S.L.C. 52 1 2 3 TITLE VIII—EFFECTIVE DATE SEC. 801. EFFECTIVE DATE. Titles I through V of this Act, and the amendments 4 made by those titles, shall take effect 1 year after the date 5 of enactment of this Act. V4Y R5 T6Z