Subpoena Abuse Prevention Act
Officially: “Subpoena Abuse Prevention Act” Read the full text
What it does
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1Short title
This section would allow the Act to be known as the Subpoena Abuse Prevention Act.
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1. Short title This Act may be cited as the Subpoena Abuse Prevention Act .
2Reforming subpoenas
This section would change how a governmental entity can use administrative, grand jury, and trial subpoenas to get customer and subscriber records from communications service providers under section 2703 of title 18, United States Code. It would remove one of the categories of information a governmental entity can currently obtain through a subpoena under section 2703(c)(2), listed there as subparagraph (C), and renumber the categories that come after it to fill the gap. It would add a requirement that for any administrative, grand jury, or trial subpoena seeking this subscriber or customer information, the governmental entity must identify the specific subscriber or customer by name, address, temporarily assigned network address, or an account identifier such as a username, so a subpoena could not be used to sweep up subscriber records in bulk without naming an individual account. It would bar a governmental entity from using a subpoena to get this subscriber or customer information if a purpose of the subpoena is to investigate, monitor, or otherwise gather information about a person's exercise of free speech, press, religion, assembly, petition, or any other activity protected by the Constitution, or to retaliate against a person for engaging in such activity. It would require a governmental entity using such a subpoena on a service provider to certify, under penalty of perjury, that the subpoena is for a legitimate and lawful purpose and not for one of those prohibited purposes, giving that certification to the service provider and, when it applies to a court for an order under section 2705(b) letting it withhold notice of the subpoena from the customer, giving the certification to the court as well; a subpoena would not be valid, and a section 2705(b) notice-withholding order could not be issued, unless the subpoena includes that certification. It would establish that, unless a governmental entity has obtained a section 2705(b) notice-withholding order, a service provider may notify its customer or subscriber that a subpoena was received and may consult an attorney for legal advice or assistance about the subpoena, and the governmental entity must tell the service provider that it is not directing the provider to withhold notice from any other person, that the provider may notify the customer or subscriber, and that the provider may consult an attorney. If the governmental entity does obtain a section 2705(b) notice-withholding order, that order may limit the provider's right to notify the customer or subscriber, and the governmental entity must adjust what it tells the provider about withholding notice from others and about notifying the customer so that it matches the terms of the order; the provider's right to consult an attorney is not part of that required adjustment. Finally, it would require each federal governmental entity that uses an administrative subpoena to obtain this information to publish a public report each year, covering the one-year period before the report, stating the number of administrative subpoenas it issued, broken down by the legal authority used to issue them, and the number of customer accounts for which it received information through an administrative subpoena, also broken down by the legal authority used.
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2. Reforming subpoenas (a) Consistent protections for phone and app-Based call and texting records Section 2703(c)(2) of title 18, United States Code, is amended— (1) by striking subparagraph (C); and (2) by redesignating subparagraphs (D), (E), and (F) as subparagraphs (C), (D), and (E), respectively. (b) Prohibiting the use of subpoenas for bulk collection of certain subscriber information Section 2703(c)(2) of title 18, United States Code, as amended by subsection (a), is further amended in the matter following subparagraph (E), as so redesignated, by inserting provided that for any administrative, grand jury, or trial subpoena, the governmental entity identifies the subscriber or customer by name, address, temporarily assigned network address, or account identifier (such as a username) before the period at the end. (c) Prohibiting the use of subpoenas with a purpose To investigate constitutionally protected activities Section 2703(c) of title 18, United States Code, is further amended by adding at the end the following: (4) Protections for constitutionally protected activities (A) In general A governmental entity may not use a subpoena to require the disclosures described in paragraph (2) if a purpose of the subpoena is to— (i) investigate, monitor, or otherwise acquire information about activities, or any person's engagement in activities, that are exercises of free speech, press, religion, assembly, or petition, or are otherwise protected by the Constitution of the United States; or (ii) retaliate against any person for their engagement in activities that are exercises of free speech, press, religion, assembly, or petition, or are otherwise protected by the Constitution of the United States. (B) Required certification (i) In general A governmental entity using a subpoena to require the disclosures described in paragraph (2) from a service provider shall provide a certification under penalty of perjury attesting that the subpoena is being made for a legitimate and lawful purpose, and not with a purpose described in subparagraph (A)— (I) to the service provider; and (II) when applying for a preclusion of notice order under section 2705(b), to the court in such application. (ii) Absence of certification A subpoena to require the disclosures described in paragraph (2) from a service provider shall not be valid, and a preclusion of notice order under section 2705(b) for such subpoena shall not issue, unless the subpoena includes the certification described in clause (i). . (d) Required disclosures Section 2703(c) of title 18, United States Code, is further amended by adding at the end the following: (5) Required disclosures to service provider (A) In general Except as provided in subparagraph (B)— (i) the service provider— (I) may notify a customer or subscriber of the receipt of the subpoena; and (II) may consult with an attorney in order to obtain legal advice or assistance regarding the subpoena; and (ii) the government entity shall inform the service provider that it— (I) is not being directed to not notify any other person of the existence of the subpoena; (II) may notify the customer or subscriber of the receipt of the subpoena; and (III) may consult with an attorney in order to obtain legal advice or assistance regarding the subpoena. (B) Exception for nondisclosure orders If a governmental entity described in subparagraph (A) obtains a preclusion of notice order under section 2705(b)— (i) such order may limit the right of the service provider described in subparagraph (A)(i)(I); and (ii) the governmental entity shall modify the required disclosures described in subclauses (I) and (II) of subparagraph (A)(ii) to be consistent with the terms of the order. . (e) Public reporting of use of administrative subpoenas Section 2703(c) of title 18, United States Code, is further amended by adding at the end the following: (6) Reporting of Federal use of administrative subpoenas Each Federal governmental entity that uses an administrative subpoena to require the disclosure of information under this subsection shall annually publicly publish a report containing, for the 1-year period preceding the date of the report— (A) the number of administrative subpoenas issued by the governmental entity, disaggregated by the statutory authority under which the administrative subpoenas were issued; and (B) the number of accounts for which the governmental entity received information through an administrative subpoena, disaggregated by the statutory authority under which the administrative subpoenas were issued. .
Where it is
In the House.