S.Amdt. 4163

SA 4163. Mr. WYDEN submitted an amendment intended to be proposed to
amendment SA 3867 submitted by Mr. Reed and intended to be proposed to
the bill H.R. 4350, to authorize appropriations for fiscal year 2022
for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:

At the appropriate place XV, insert the following:

SEC. 15__. REPORT ON PURCHASE AND USE BY DEPARTMENT OF
DEFENSE OF LOCATION DATA GENERATED BY
AMERICANS' PHONES AND THEIR INTERNET METADATA.

(a) Report Required.--Not later than 90 days after the date
of the enactment of this Act, the Secretary of Defense shall
submit to the congressional defense committees and make
available to the public on an internet website of the
Department of Defense a report that--
(1) identifies each covered entity that is currently, or
during the five year period ending on the date of the
enactment of this Act was, without a court order--
(A) obtaining in exchange for anything of value any covered
records; and
(B) intentionally retaining or intentionally using such
covered records; and
(2) for each covered entity identified pursuant to
paragraph (1), identifies--
(A) each category of covered record the covered entity,
without a court order, is obtaining or obtained, in exchange
for anything of value;
(B) whether the covered entity intentionally retained or is
intentionally retaining each category of covered records
pursuant to subparagraph (A);
(C) whether the covered entity intentionally uses or used
each category of covered records identified pursuant to
subparagraph (A); and
(D) whether such obtaining, retention, and use ceased
before the date of the enactment of this Act or is ongoing.
(b) Form.--The report submitted under subsection (a) shall
be submitted in unclassified form.
(c) Determination of Parties to a Communication.--In
determining under this section whether a party to a
communication is likely to be located inside or outside the
United States, the Secretary shall consider the Internet
Protocol (IP) address used by the party to the communication,
but may also consider other information known to the
Secretary.
(d) Definitions.--In this section:
(1) The term ``covered entities'' means the Defense
Agencies, Department of Defense activities, and components of
the Department that--
(A) are under the authority, direction, and control of the
Under Secretary of Defense for Intelligence and Security; or
(B) over which the Under Secretary exercises planning,
policy, funding, or strategic oversight authority.
(2) The term ``covered records'' includes the following:
(A) Location data generated by phones that are likely to be
located in the United States.
(B) Domestic phone call records.
(C) International phone call records.
(D) Domestic text message records.
(E) International text message records.
(F) Domestic netflow records.
(G) International netflow records.
(H) Domestic Domain Name System records.
(I) International Domain Name System records.
(J) Other types of domestic internet metadata.
(K) Other types of international internet metadata.
(3) The term ``domestic'' means a telephone or an internet
communication in which all parties to the communication are
likely to be located in the United States.
(4)(A) The term ``international'' means a telephone or an
internet communication in which one or more parties to the
communication are likely to be located in the United States
and one or more parties to the communication are likely to be
located outside the United States.
(B) The term ``international'' does not include a telephone
or an internet communication in which all parties to the
communication are likely to be located outside the United
States.
(5) The term ``obtain in exchange for anything of value''
means to obtain by purchasing, to receive in connection with
services being provided for consideration, or to otherwise
obtain in exchange for consideration, including an access
fee, service fee, maintenance fee, or licensing fee.
(6)(A) Except as provided in su bparagraph (B), the term
``retain'' means the storage of a covered record.
(B) The term ``retain'' does not include the temporary
storage of a covered record that will be, but has not yet
been, subjected to a process in which the covered record,
which is part of a larger compilation containing records that
are not covered records, are identified and deleted.
(7)(A) Except as provided in subparagraph (B), the term
``use'', with respect to a covered record, includes
analyzing, processing, or sharing the covered record.
(B) The term ``use'' does not include subjecting the
covered record to a process in which the covered record,
which is part of a larger compilation containing records that
are not covered records, are identified and deleted.

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