II
Calendar No. 200
118th CONGRESS
1st Session
S. 1080
IN THE SENATE OF THE UNITED STATES
March 30, 2023
Mr. Marshall (for himself, Mrs. Shaheen, Mr. Durbin, Mr. Grassley, Ms. Klobuchar, and Mr. Young) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
September 5, 2023
Reported by Mr. Durbin, with an amendment
Strike out all after the enacting clause and insert the part printed in italic
A BILL
To amend the Controlled Substances Act to require electronic communication service providers and remote computing services to report to the Attorney General certain controlled substances violations.
Short title
This Act may be cited as the Cooper Davis Act
.
Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations
Amendments to Controlled Substances Act
In general
Part E of the Controlled Substances Act (21 U.S.C. 871 et seq.) is amended by adding at the end the following:
Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations
Definitions
In this section, the terms electronic communication service, electronic mail address, provider, remote computing service, and website have the meanings given those terms in section 2258E of title 18, United States Code.
Duty To report
In general
Duty
In order to reduce the proliferation of the unlawful sale, distribution, or manufacture (as applicable) of counterfeit controlled substances and certain controlled substances, a provider—
shall, as soon as reasonably possible after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(A), take the actions described in subparagraph (B);
may, after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(B), take the actions described in subparagraph (B);
may, if the provider reasonably believes that any facts or circumstances described in paragraph (2)(A) exist, take the actions described in subparagraph (B); and
shall, if a submission to the provider by a user, subscriber, or customer of the provider alleges facts or circumstances described in paragraph (2) and the provider upon review has a reasonable belief that the alleged facts or circumstances exist, take the actions described in subparagraph (B).
Actions described
The actions described in this subparagraph are—
providing to the Drug Enforcement Administration the mailing address, telephone number, facsimile number, and electronic mailing address of, and individual point of contact for, such provider; and
making a report of such facts or circumstances to the Drug Enforcement Administration.
Facts and circumstances
Violations
The facts or circumstances described in this subparagraph are any facts or circumstances that indicate a violation has occurred involving—
the unlawful sale or distribution of—
fentanyl; or
methamphetamine; or
the unlawful sale, distribution, or manufacture of a counterfeit controlled substance.
Imminent violations
The facts or circumstances described in this subparagraph are any facts or circumstances that indicate that a violation described in subparagraph (A) may be planned or imminent.
Contents of report
In general
In an effort to prevent future violations described in subsection (b)(2)(A), and to the extent the information is within the custody or control of a provider, the facts and circumstances included in each report under subsection (b)(1) may, at the sole discretion of the provider, except as provided in paragraph (2), include the following information:
Information about the involved individual
Information relating to the identity of any individual who has committed a violation or plans to commit a violation described in subsection (b)(2)(A), which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, uniform resource locator, payment information (excluding personally identifiable information), screen names or monikers for the account used or any other accounts associated with the individual, or any other identifying information, including self-reported identifying information.
Historical reference
Information relating to when and how a customer or subscriber of a provider uploaded, transmitted, or received content relating to the report or when and how content relating to the report was reported to or discovered by the provider, including a date and time stamp and time zone.
Geographic location information
Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified address, or, if not reasonably available, at least one form of geographic identifying information, including area code or ZIP Code, provided by the customer or subscriber, or stored or obtained by the provider, and any information as to whether a virtual private network was used.
Data relating to certain controlled substances violations
Any data, including symbols, photos, video, icons, or direct messages, relating to activity involving a violation described in subsection (b)(2)(A) or other content relating to the incident such report is regarding.
Complete communication
The complete communication containing the intent to commit a violation described in subsection (b)(2)(A), including—
any data or information regarding the transmission of the communication; and
any data or other digital files contained in, or attached to, the communication.
Exception
In the case of a report under subsection (b)(1) that is mandated under subparagraph (A)(iv) of that subsection—
the provider shall include in the report the information submitted to the provider by the user, subscriber, or customer; and
the provider may include in the report any information described in paragraph (1) that the user, subscriber, or customer did not submit to the provider.
Forwarding of report to other Federal law enforcement agencies, State and local law enforcement agencies, and foreign law enforcement agencies
The Drug Enforcement Administration shall make available each report made under subsection (b)(1) to other Federal law enforcement agencies, State and local law enforcement agencies, and foreign law enforcement agencies involved in the investigation of violations described in subsection (b)(2)(A), unless the Drug Enforcement Administration will conduct the investigation of the report.
Attorney general responsibilities
In general
The Attorney General shall enforce this section.
Designation of federal agencies
The Attorney General may designate a Federal law enforcement agency or agencies to which the Drug Enforcement Administration shall forward a report under subsection (d).
Designation of foreign agencies
The Attorney General may—
in consultation with the Secretary of State, designate foreign law enforcement agencies to which a report may be forwarded under subsection (d);
establish the conditions under which such a report may be forwarded to such agencies; and
develop a process for foreign law enforcement agencies to request assistance from Federal law enforcement agencies in obtaining evidence related to a report referred under subsection (d).
Reporting designated foreign agencies
The Attorney General may maintain and make available to the Department of State, providers, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives a list of the foreign law enforcement agencies designated under paragraph (3).
Notification to providers
In general
The Drug Enforcement Administration may notify a provider of the information described in subparagraph (B), if—
a provider notifies the Drug Enforcement Administration that the provider is making a report under this section as the result of a request by a foreign law enforcement agency; and
the Drug Enforcement Administration forwards the report described in clause (i) to—
the requesting foreign law enforcement agency; or
another agency in the same country designated by the Attorney General under paragraph (3).
Information described
The information described in this subparagraph is—
the identity of the foreign law enforcement agency to which the report was forwarded; and
the date on which the report was forwarded.
Notification of inability to forward report
If a provider notifies the Drug Enforcement Administration that the provider is making a report under this section as the result of a request by a foreign law enforcement agency and the Drug Enforcement Administration is unable to forward the report as described in subparagraph (A)(ii), the Drug Enforcement Administration shall notify the provider that the Drug Enforcement Administration was unable to forward the report.
Failure To report
A provider that knowingly and willfully fails to make a report required under subsection (b)(1) shall be fined—
in the case of an initial knowing and willful failure to make a report, not more than $190,000; and
in the case of any second or subsequent knowing and willful failure to make a report, not more than $380,000.
Protection of privacy
Nothing in this section shall be construed to require a provider to—
monitor any user, subscriber, or customer of that provider;
monitor the content of any communication of any person described in paragraph (1); or
affirmatively search, screen, or scan for facts or circumstances described in subsections (b) and (c).
Conditions of disclosure of information contained within report
In general
Except as provided in paragraph (2), a law enforcement agency that receives a report under subsection (d) shall not disclose any information contained in that report.
Permitted disclosures by law enforcement
A law enforcement agency may disclose information in a report received under subsection (d)—
to an attorney for the government for use in the performance of the official duties of that attorney;
to such officers and employees of that law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions;
to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law;
if the report discloses a violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law;
to a defendant in a criminal case or the attorney for that defendant to the extent the information relates to a criminal charge pending against that defendant;
to a provider if necessary to facilitate response to legal process issued in connection to a criminal investigation, prosecution, or post-conviction remedy relating to that report; and
as ordered by a court upon a showing of good cause and pursuant to any protective orders or other conditions that the court may impose.
Preservation
In general
Request to preserve contents
In general
Subject to clause (ii), for the purposes of this section, a completed submission by a provider of a report to the Drug Enforcement Administration under subsection (b)(1) shall be treated as a request to preserve the contents provided in the report, and any data or other digital files that are reasonably accessible and may provide context or additional information about the reported material or person, for 90 days after the submission to the Drug Enforcement Administration.
Limitations on extension of preservation period
Notification that DEA has forwarded report to foreign law enforcement agency
The Drug Enforcement Administration may not extend the required period of preservation under clause (i) on the basis of a notification by the Drug Enforcement Administration to the provider under subsection (e)(5)(A).
Stored Communications Act
The Drug Enforcement Administration may not submit a request to a provider to continue preservation of the contents of a report or other data described in clause (i) under section 2703(f) of title 18, United States Code, beyond the required period of preservation under clause (i) of this subparagraph unless the Drug Enforcement Administration intends in good faith to investigate the user, subscriber, or customer account at issue in the report or make the report available to another Federal, State, or local law enforcement agency.
Rule of construction
Nothing in subclause (II) shall preclude another Federal, State, or local law enforcement agency from seeking continued preservation of the contents of a report or other data described in clause (i) under section 2703(f) of title 18, United States Code.
Notification to user
A provider may not notify a user, subscriber, or customer of the provider of a preservation request described in subparagraph (A) unless—
the provider has notified the Drug Enforcement Administration of its intent to provide that notice; and
5 business days have elapsed since the notification under clause (i).
Protection of preserved materials
A provider preserving materials under this section shall maintain the materials in a secure location and take appropriate steps to limit access to the materials by agents or employees of the service to that access necessary to comply with the requirements of this subsection.
Authorities and duties not affected
Nothing in this section shall be construed as replacing, amending, or otherwise interfering with the authorities and duties under section 2703 of title 18, United States Code.
.
Technical and conforming amendment
The table of contents for the Controlled Substances Act (21 U.S.C. 801 et seq.) is amended by inserting after the item relating to section 520 the following:
Sec. 521. Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations.
.
Conforming amendments to Stored Communications Act
In general
Section 2702 of title 18, United States Code, is amended—
in subsection (b)—
in paragraph (8), by striking or
at the end;
in paragraph (9), by striking the period at the end and inserting ; or
; and
by adding at the end the following:
to a law enforcement agency, in connection with a report submitted thereto under section 521 of the Controlled Substances Act.
; and
in subsection (c)—
in paragraph (6), by striking or
at the end;
in paragraph (7), by striking the period at the end and inserting ; or
; and
by adding at the end the following:
to a law enforcement agency, in connection with a report submitted thereto under section 521 of the Controlled Substances Act.
.
Technical amendment
Paragraph (7) of section 2702(b) of title 18, United States Code, is amended to read as follows:
to a law enforcement agency if the contents—
were inadvertently obtained by the service provider; and
appear to pertain to the commission of a crime;
.
Short title
This Act may be cited as the Cooper Davis Act
.
Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations
Amendments to controlled substances act
In general
Part E of the Controlled Substances Act (21 U.S.C. 871 et seq.) is amended by adding at the end the following:
Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations
Definitions
In this section—
the term electronic communication service has the meaning given that term in section 2510 of title 18, United States Code;
the term electronic mail address has the meaning given that term in section 3 of the CAN-SPAM Act of 2003 (15 U.S.C. 7702);
the term Internet has the meaning given that term in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 151 note);
the term provider means an electronic communication service provider or remote computing service;
the term remote computing service has the meaning given that term in section 2711 of title 18, United States Code; and
the term website means any collection of material placed in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.
Duty to report
General duty
In order to reduce the proliferation of the unlawful sale, distribution, or manufacture (as applicable) of counterfeit substances and certain controlled substances, a provider shall, as soon as reasonably possible after obtaining actual knowledge of any facts or circumstances described in paragraph (2), and in any event not later than 60 days after obtaining such knowledge, submit to the Drug Enforcement Administration a report containing—
the mailing address, telephone number, facsimile number, and electronic mailing address of, and individual point of contact for, such provider;
information described in subsection (c) concerning such facts or circumstances; and
for purposes of subsection (j), information indicating whether the facts or circumstances were discovered through content moderation conducted by a human or via a non-human method, including use of an algorithm, machine learning, or other means.
Facts or circumstances
The facts or circumstances described in this paragraph are any facts or circumstances establishing that a crime is being or has already been committed involving—
creating, manufacturing, distributing, dispensing, or possession with intent to manufacture, distribute, or dispense—
fentanyl; or
methamphetamine;
creating, manufacturing, distributing, dispensing, or possession with intent to manufacture, distribute, or dispense a counterfeit substance, including a counterfeit substance purporting to be a prescription drug; or
offering, dispensing, or administering an actual or purported prescription pain medication or prescription stimulant by any individual or entity that is not a practitioner or online pharmacy, including an individual or entity that falsely claims to be a practitioner or online pharmacy.
Permitted actions based on reasonable belief
In order to reduce the proliferation of the unlawful sale, distribution, or manufacture (as applicable) of counterfeit substances and certain controlled substances, if a provider has a reasonable belief that facts or circumstances described in paragraph (2) exist, the provider may submit to the Drug Enforcement Administration a report described in paragraph (1).
Contents of report
In general
To the extent the information is within the custody or control of a provider, the facts or circumstances included in each report under subsection (b)(1)—
shall include, to the extent that it is applicable and reasonably available, information relating to the account involved in the commission of a crime described in subsection (b)(2), such as the name, address, electronic mail address, user or account identification, Internet Protocol address, uniform resource locator, screen names or monikers for the account used or any other accounts associated with the account user, or any other identifying information, including self-reported identifying information, but not including the contents of a wire communication or electronic communication, as those terms are defined in section 2510 of title 18, United States Code, except as provided in subparagraph (B) of this paragraph; and
may, at the sole discretion of the provider, include the information described in paragraph (2) of this subsection.
Other information
The information referred to in paragraph (1)(B) is the following:
Historical reference
Information relating to when and how a user, subscriber, or customer of a provider uploaded, transmitted, or received content relating to the report or when and how content relating to the report was reported to or discovered by the provider, including a date and time stamp and time zone.
Geographic location information
Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified address, or, if not reasonably available, at least one form of geographic identifying information, including area code or ZIP Code, provided by the user, subscriber, or customer, or stored or obtained by the provider, and any information as to whether a virtual private network was used.
Data relating to facts or circumstances
Any data, including symbols, photos, video, icons, or direct messages, relating to activity involving the facts or circumstances described in subsection (b)(2) or other content relating to the crime.
Complete communication
The complete communication containing the information of the crime described in subsection (b)(2), including—
any data or information regarding the transmission of the communication; and
any data or other digital files contained in, or attached to, the communication.
User, subscriber, or customer submitted reports
In the case of a report under subsection (b)(3), the provider may, at its sole discretion, include in the report information submitted to the provider by a user, subscriber, or customer alleging facts or circumstances described in subsection (b)(2) if the provider, upon review, has a reasonable belief that the alleged facts or circumstances exist.
Handling of reports
Upon receipt of a report submitted under subsection (b), the Drug Enforcement Administration—
shall conduct a preliminary review of such report; and
after completing the preliminary review, shall—
conduct further investigation of the report, which may include making the report available to other Federal, State, or local law enforcement agencies involved in the investigation of crimes described in subsection (b)(2), if the Drug Enforcement Administration determines that the report facially contains sufficient information to warrant and permit further investigation; or
conclude that no further investigative steps are warranted or possible, or that insufficient evidence exists to make a determination, and close the report.
Attorney general responsibilities
In general
The Attorney General shall enforce this section.
Designation of federal agencies
The Attorney General may designate a Federal law enforcement agency or agencies to which the Drug Enforcement Administration may forward a report under subsection (d).
Data minimization requirements
The Attorney General shall take reasonable measures to—
limit the storage of a report submitted under subsection (b) and its contents to the amount that is necessary to carry out the investigation of crimes described in subsection (b)(2); and
store a report submitted under subsection (b) and its contents only as long as is reasonably necessary to carry out an investigation of crimes described in subsection (b)(2) or make the report available to other agencies under subsection (d)(2)(A), after which time the report and its contents shall be deleted unless the preservation of a report has future evidentiary value.
Failure to comply with requirements
Criminal penalty
Offense
It shall be unlawful for a provider to knowingly fail to submit a report required under subsection (b)(1).
Penalty
A provider that violates subparagraph (A) shall be fined—
in the case of an initial violation, not more than $190,000; and
in the case of any second or subsequent violation, not more than $380,000.
Civil penalty
In addition to any other available civil or criminal penalty, a provider shall be liable to the United States Government for a civil penalty in an amount not less than $50,000 and not more than $100,000 if the provider knowingly submits a report under subsection (b) that—
contains materially false or fraudulent information; or
omits information described in subsection (c)(1)(A) that is reasonably available.
Protection of privacy
Nothing in this section shall be construed to—
require a provider to monitor any user, subscriber, or customer of that provider;
require a provider to monitor the content of any communication of any person described in paragraph (1);
require a provider to affirmatively search, screen, or scan for facts or circumstances described in subsection (b)(2); or
permit actual knowledge to be proven based solely on a provider’s decision not to engage in additional verification or investigation to discover facts and circumstances that are not readily apparent, so long as the provider does not deliberately blind itself to those violations.
Conditions of disclosure of information contained within report
In general
Except as provided in paragraph (2), a law enforcement agency that receives a report under subsection (d) shall not disclose any information contained in that report.
Permitted disclosures by law enforcement
A law enforcement agency may disclose information in a report received under subsection (d)—
to an attorney for the government for use in the performance of the official duties of that attorney, including providing discovery to a defendant;
to such officers and employees of that law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions;
to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law;
if the report discloses an apparent violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law;
to a defendant in a criminal case or the attorney for that defendant to the extent the information relates to a criminal charge pending against that defendant;
to a provider if necessary to facilitate response to legal process issued in connection to a criminal investigation, prosecution, or post-conviction remedy relating to that report;
as ordered by a court upon a showing of good cause and pursuant to any protective orders or other conditions that the court may impose; and
in order to facilitate the enforcement of the penalties authorized under subsection (f).
Preservation
In general
Request to preserve contents
In general
Subject to clause (ii), for the purposes of this section, a completed submission by a provider of a report to the Drug Enforcement Administration under subsection (b)(1) shall be treated as a request to preserve the contents provided in the report, and any data or other digital files that are reasonably accessible and may provide context or additional information about the reported material or person, for 90 days after the submission to the Drug Enforcement Administration.
Limitations on extension of preservation period
Stored communications act
The Drug Enforcement Administration may not submit a request to a provider to continue preservation of the contents of a report or other data described in clause (i) under section 2703(f) of title 18, United States Code, beyond the required period of preservation under clause (i) of this subparagraph unless the Drug Enforcement Administration has an active or pending investigation involving the user, subscriber, or customer account at issue in the report.
Rule of construction
Nothing in subclause (I) shall preclude another Federal, State, or local law enforcement agency from seeking continued preservation of the contents of a report or other data described in clause (i) under section 2703(f) of title 18, United States Code.
Notification to user
A provider may not notify a user, subscriber, or customer of the provider of a preservation request described in subparagraph (A) unless—
the provider has notified the Drug Enforcement Administration of its intent to provide that notice; and
45 business days have elapsed since the notification under clause (i).
Protection of preserved materials
A provider preserving materials under this section shall maintain the materials in a secure location and take appropriate steps to limit access to the materials by agents or employees of the service to that access necessary to comply with the requirements of this subsection.
Authorities and duties not affected
Nothing in this section shall be construed as replacing, amending, or otherwise interfering with the authorities and duties under section 2703 of title 18, United States Code.
Relation to reporting requirement
Submission of a report as required by subsection (b)(1) does not satisfy the obligations under this subsection.
Annual report
Not later than 1 year after the date of enactment of the Cooper Davis Act, and annually thereafter, the Drug Enforcement Administration shall publish a report that includes, for the reporting period—
the total number of reports received from providers under subsection (b)(1);
the number of reports received under subsection (b)(1) disaggregated by—
the provider on whose electronic communication service or remote computing service the crime for which there are facts or circumstances occurred; and
the subsidiary of a provider, if any, on whose electronic communication service or remote computing service the crime for which there are facts or circumstances occurred;
the number of reports received under subsection (b)(1) that led to convictions in cases investigated by the Drug Enforcement Administration;
the number of reports received under subsection (b)(1) that lacked actionable information;
the number of reports received under subsection (b)(1) where the facts or circumstances of a crime were discovered through—
content moderation conducted by a human; or
a non-human method including use of an algorithm, machine learning, or other means;
the number of reports received under subsection (b)(1) that were made available to other law enforcement agencies, disaggregated by—
the number of reports made available to Federal law enforcement agencies;
the number of reports made available to State law enforcement agencies; and
the number of reports made available to local law enforcement agencies; and
the number of requests to providers to continue preservation of the contents of a report or other data described in subsection (i)(1)(A)(i) submitted by the Drug Enforcement Administration under section 2703(f) of title 18, United States Code.
Prohibition on submission of user, subscriber, customer, or anonymous reports by law enforcement
In general
No Federal, Tribal, State, or local law enforcement officer acting in an official capacity may submit a report to a provider or arrange for another individual to submit a report to a provider on behalf of the officer under this section.
Remedy for violation
No part of the contents of a provider’s report made under subsection (b)(1) or (b)(3) and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if that provider report resulted from an action prohibited by paragraph (1) of this subsection.
Exemption for Providers of Broadband Internet Access Service
Subsections (b) through (k) shall not apply to a provider of broadband internet access service, as that term is defined in section 8.1(b) of title 47, Code of Federal Regulations (or any successor regulation), insofar as the provider is acting as a provider of such service.
.
Technical and conforming amendment
The table of contents for the Controlled Substances Act (21 U.S.C. 801 et seq.) is amended by inserting after the item relating to section 520 the following:
Sec. 521. Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations.
.
Conforming amendments to stored communications act
In general
Section 2702 of title 18, United States Code, is amended—
in subsection (b)—
in paragraph (8), by striking or
at the end;
in paragraph (9), by striking the period at the end and inserting ; or
; and
by adding at the end the following:
to the Drug Enforcement Administration, in connection with a report submitted thereto under section 521 of the Controlled Substances Act.
; and
in subsection (c)—
in paragraph (6), by striking or
at the end;
in paragraph (7), by striking the period at the end and inserting ; or
; and
by adding at the end the following:
to the Drug Enforcement Administration, in connection with a report submitted thereto under section 521 of the Controlled Substances Act.
.
Technical amendment
Paragraph (7) of section 2702(b) of title 18, United States Code, is amended to read as follows:
to a law enforcement agency if the contents—
were inadvertently obtained by the service provider; and
appear to pertain to the commission of a crime;
.
Severability
If any provision of this Act or 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 this Act and amendments made by this Act, and the application of such provision or amendment to any other person or circumstance, shall not be affected thereby.
September 5, 2023
Reported with an amendment