S.Amdt. 1827

SA 1827. Mr. WYDEN submitted an amendment intended to be proposed by
him to the bill H.R. 7888, to reform the Foreign Intelligence
Surveillance Act of 1978; which was ordered to lie on the table; as
follows:

At the appropriate place, insert the following:

SEC. ___. WARRANT PROTECTIONS FOR LOCATION INFORMATION, WEB
BROWSING RECORDS, AND SEARCH QUERY RECORDS.

(a) Historical Location, Web Browsing, and Search
Queries.--
(1) In general.--Section 2703 of title 18, United States
Code, is amended--
(A) in subsection (a)--
(i) in the subsection heading, by striking ``Contents of
Wire or Electronic Communications'' and inserting ``Location
Information, Web Browsing Records, Search Query Records, or
Contents of Wire or Electronic Communications''; and
(ii) in the first sentence, by inserting ``location
information, a web browsing record, a search query record,
or'' before ``the contents of a wire''; and
(B) in subsection (c)(1), in the matter preceding
subparagraph (A), by inserting ``location information, a web
browsing record, a search query record, or'' before ``the
contents''.
(2) Definition.--Section 2711 of title 18, United States
Code, is amended--
(A) in the matter preceding paragraph (1), by inserting
``(a) In General.--'' before ``As used'';
(B) in subsection (a), as so designated--
(i) in paragraph (3)(C), by striking ``and'' at the end;
(ii) in paragraph (4), by striking the period at the end
and inserting a semicolon; and
(iii) by adding at the end the following:
``(5) the term `location information' means information
derived or otherwise calculated from the transmission or
reception of a radio signal that reveals the approximate or
actual geographic location of a customer, subscriber, user,
or device;
``(6) the term `web browsing record'--
``(A) means a record that reveals, in part or in whole, the
identity of a service provided by an online service provider,
or the identity of a customer, subscriber, user, or device,
for any attempted or successful communication or transmission
between an online service provider and such a customer,
subscriber, user, or device;
``(B) includes a record that reveals, in part or in whole--
``(i) the domain name, uniform resource locator, internet
protocol address, or other identifier for a service provided
by an online service provider with which a customer,
subscriber, user, or device has exchanged or attempted to
exchange a communication or transmission; or
``(ii) the network traffic generated by an attempted or
successful communication or transmission between a service
provided by an online service provider and a customer,
subscriber, user, or device; and
``(C) does not include a record that reveals information
about an attempted or successful communication or
transmission between a known service and a particular, known
customer, subscriber, user, or device, if the record is
maintained by the known service and is limited to revealing
additional identifying information about the particular,
known customer, subscriber, user, or device; and
``(7) the term `search query record'--
``(A) means a record that reveals a query term or
instruction submitted, in written, verbal, or other format,
by a customer, subscriber, user, or device to any service
provided by an online service provider, including a search
engine, voice assistant, chat bot, or navigation service; and
``(B) includes a record that reveals the response provided
by any service provided by an online service provider to a
query term or instruction by a customer, subscriber, user, or
device,''; and
(C) by adding at the end the following:
``(b) Rule of Construction.--Nothing in this section or
section 2510 shall be construed to mean that a record may not
be more than 1 of the following types of record:
``(1) The contents of a communication.
``(2) Location information.
``(3) A web browsing record.
``(4) A search query record.''.
(b) Real-Time Surveillance of Location Information.--
(1) In general.--Section 3117 of title 18, United States
Code, is amended--
(A) in the section heading, by striking ``Mobile tracking
devices'' and inserting ``Tracking orders'';
(B) by striking subsection (b);
(C) by redesignating subsection (a) as subsection (c);
(D) by inserting before subsection (c), as so redesignated,
the following:
``(a) In General.--No officer or employee of a governmental
entity may install or direct the installation of a tracking
device, except pursuant to a warrant issued using the

[[Page S2895]]

procedures described in the Federal Rules of Criminal
Procedure (or, in the case of a State court, issued using
State warrant procedures and, in the case of a court-martial
or other proceeding under chapter 47 of title 10 (the Uniform
Code of Military Justice), issued under section 846 of that
title, in accordance with regulations prescribed by the
President) by a court of competent jurisdiction.
``(b) Emergencies.--
``(1) In general.--Subject to paragraph (2), the
prohibition under subsection (a) does not apply in a instance
in which an investigative or law enforcement officer
reasonably determines that--
``(A) a circumstance described in subparagraph (i), (ii),
or (iii) of section 2518(7)(a) exists; and
``(B) there are grounds upon which a warrant could be
issued to authorize the installation of the tracking device.
``(2) Application deadline.--If a tracking device is
installed under the authority under paragraph (1), an
application for a warrant shall be made within 48 hours after
the installation.
``(3) Termination absent warrant.--In the absence of a
warrant, use of a tracking device under the authority under
paragraph (1) shall immediately terminate when the
investigative information sought is obtained or when the
application for the warrant is denied, whichever is earlier.
``(4) Limitation.--In the event an application for a
warrant described in paragraph (2) is denied, or in any other
case where the use of a tracking device under the authority
under paragraph (1) is terminated without a warrant having
been issued, the information obtained shall be treated as
having been obtained in violation of this section, and an
inventory describing the installation and use of the tracking
device shall be served on the person named in the warrant
application.'';
(E) in subsection (c), as so redesignated--
(i) in the subsection heading, by striking ``In General''
and inserting ``Jurisdiction'';
(ii) by striking ``or other order'';
(iii) by striking ``mobile'';
(iv) by striking ``such order'' and inserting ``such
warrant''; and
(v) by adding at the end the following: ``For purposes of
this subsection, the installation of a tracking device occurs
within the jurisdiction in which the device is physically
located when the installation is complete.''; and
(F) by adding at the end the following:
``(d) Definitions.--As used in this section--
``(1) the term `computer' has the meaning given that term
in section 1030(e);
``(2) the terms `court of competent jurisdiction' and
`governmental entity' have the meanings given such terms in
section 2711;
``(3) the term `installation of a tracking device' means,
whether performed by an officer or employee of a governmental
entity or by a provider at the direction of a governmental
entity--
``(A) the physical placement of a tracking device;
``(B) the remote activation of the tracking software or
functionality of a tracking device; or
``(C) the acquisition of a radio signal transmitted by a
tracking device; and
``(4) the term `tracking device' means an electronic or
mechanical device which permits the tracking of the movement
of a person or object, including a phone, wearable device,
connected vehicle, or other computer owned, used, or
possessed by the target of surveillance.''.
(2) Conforming amendments.--
(A) The table of sections for chapter 205 of title 18,
United States Code, is amended by striking the item relating
to section 3117 and inserting the following:

``3117. Tracking orders.''.
(B) Section 2510(12)(C) of title 18, United States Code, is
amended to read as follows:
``(C) a communication from a lawfully installed tracking
device (as defined in section 3117 of this title), if--
``(i) the tracking device is physically placed; or
``(ii) the tracking software or functionality of the
tracking device is remotely activated and the communication
is transmitted by the tracking software or functionality as a
result of the remote activation; or''.
(c) Prospective Surveillance of Web Browsing Records and
Location Information.--Section 2703 of title 18, United
States Code, is amended by adding at the end the following:
``(i) Prospective Disclosure of Web Browsing Records.--
``(1) In general.--A governmental entity may require the
prospective disclosure by an online service provider of a web
browsing record only pursuant to a warrant issued using the
procedures described in subsection (a).
``(2) Time restrictions.--A warrant requiring the
prospective disclosure by an online service provider of web
browsing records may require disclosure of web browsing
records for only a period as is necessary to achieve the
objective of the disclosure, not to exceed 30 days from
issuance of the warrant. Extensions of such a warrant may be
granted, but only upon satisfaction of the showings necessary
for issuance of the warrant in the first instance.
``(j) Prospective Disclosure of Location Records.--A
governmental entity may require the prospective disclosure by
an online service provider of location information only
pursuant to a warrant issued using the procedures described
in subsection (a), that satisfies the restrictions imposed on
warrants for tracking devices imposed by section 3117 of this
title and rule 41 of the Federal Rules of Criminal
Procedure.''.
______