[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1080 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 1080
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.
_______________________________________________________________________
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
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Cooper Davis Act''.
SEC. 2. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION SERVICE
PROVIDERS AND REMOTE COMPUTING SERVICES FOR CERTAIN
CONTROLLED SUBSTANCES VIOLATIONS.
(a) Amendments to Controlled Substances Act.--
(1) 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:
``SEC. 521. REPORTING REQUIREMENTS OF ELECTRONIC COMMUNICATION SERVICE
PROVIDERS AND REMOTE COMPUTING SERVICES FOR CERTAIN
CONTROLLED SUBSTANCES VIOLATIONS.
``(a) 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.
``(b) Duty To Report.--
``(1) In general.--
``(A) 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--
``(i) 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);
``(ii) may, after obtaining actual
knowledge of any facts or circumstances
described in paragraph (2)(B), take the actions
described in subparagraph (B);
``(iii) 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
``(iv) 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).
``(B) Actions described.--The actions described in
this subparagraph are--
``(i) 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
``(ii) making a report of such facts or
circumstances to the Drug Enforcement
Administration.
``(2) Facts and circumstances.--
``(A) Violations.--The facts or circumstances
described in this subparagraph are any facts or
circumstances that indicate a violation has occurred
involving--
``(i) the unlawful sale or distribution
of--
``(I) fentanyl; or
``(II) methamphetamine; or
``(ii) the unlawful sale, distribution, or
manufacture of a counterfeit controlled
substance.
``(B) 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.
``(c) Contents of Report.--
``(1) 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:
``(A) 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.
``(B) 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.
``(C) 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.
``(D) 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.
``(E) Complete communication.--The complete
communication containing the intent to commit a
violation described in subsection (b)(2)(A),
including--
``(i) any data or information regarding the
transmission of the communication; and
``(ii) any data or other digital files
contained in, or attached to, the
communication.
``(2) Exception.--In the case of a report under subsection
(b)(1) that is mandated under subparagraph (A)(iv) of that
subsection--
``(A) the provider shall include in the report the
information submitted to the provider by the user,
subscriber, or customer; and
``(B) 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.
``(d) 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.
``(e) Attorney General Responsibilities.--
``(1) In general.--The Attorney General shall enforce this
section.
``(2) 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).
``(3) Designation of foreign agencies.--The Attorney
General may--
``(A) in consultation with the Secretary of State,
designate foreign law enforcement agencies to which a
report may be forwarded under subsection (d);
``(B) establish the conditions under which such a
report may be forwarded to such agencies; and
``(C) 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).
``(4) 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).
``(5) Notification to providers.--
``(A) In general.--The Drug Enforcement
Administration may notify a provider of the information
described in subparagraph (B), if--
``(i) 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
``(ii) the Drug Enforcement Administration
forwards the report described in clause (i)
to--
``(I) the requesting foreign law
enforcement agency; or
``(II) another agency in the same
country designated by the Attorney
General under paragraph (3).
``(B) Information described.--The information
described in this subparagraph is--
``(i) the identity of the foreign law
enforcement agency to which the report was
forwarded; and
``(ii) the date on which the report was
forwarded.
``(C) 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.
``(f) Failure To Report.--A provider that knowingly and willfully
fails to make a report required under subsection (b)(1) shall be
fined--
``(1) in the case of an initial knowing and willful failure
to make a report, not more than $190,000; and
``(2) in the case of any second or subsequent knowing and
willful failure to make a report, not more than $380,000.
``(g) Protection of Privacy.--Nothing in this section shall be
construed to require a provider to--
``(1) monitor any user, subscriber, or customer of that
provider;
``(2) monitor the content of any communication of any
person described in paragraph (1); or
``(3) affirmatively search, screen, or scan for facts or
circumstances described in subsections (b) and (c).
``(h) Conditions of Disclosure of Information Contained Within
Report.--
``(1) 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.
``(2) Permitted disclosures by law enforcement.--A law
enforcement agency may disclose information in a report
received under subsection (d)--
``(A) to an attorney for the government for use in
the performance of the official duties of that
attorney;
``(B) to such officers and employees of that law
enforcement agency, as may be necessary in the
performance of their investigative and recordkeeping
functions;
``(C) 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;
``(D) 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;
``(E) 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;
``(F) 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
``(G) 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.
``(i) Preservation.--
``(1) In general.--
``(A) Request to preserve contents.--
``(i) 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.
``(ii) Limitations on extension of
preservation period.--
``(I) 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).
``(II) 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.
``(III) 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.
``(B) 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--
``(i) the provider has notified the Drug
Enforcement Administration of its intent to
provide that notice; and
``(ii) 5 business days have elapsed since
the notification under clause (i).
``(2) 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.
``(3) 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.''.
(2) 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.''.
(b) Conforming Amendments to Stored Communications Act.--
(1) In general.--Section 2702 of title 18, United States
Code, is amended--
(A) in subsection (b)--
(i) in paragraph (8), by striking ``or'' at
the end;
(ii) in paragraph (9), by striking the
period at the end and inserting ``; or''; and
(iii) by adding at the end the following:
``(10) to a law enforcement agency, in connection with a
report submitted thereto under section 521 of the Controlled
Substances Act.''; and
(B) in subsection (c)--
(i) in paragraph (6), by striking ``or'' at
the end;
(ii) in paragraph (7), by striking the
period at the end and inserting ``; or''; and
(iii) by adding at the end the following:
``(8) to a law enforcement agency, in connection with a
report submitted thereto under section 521 of the Controlled
Substances Act.''.
(2) Technical amendment.--Paragraph (7) of section 2702(b)
of title 18, United States Code, is amended to read as follows:
``(7) to a law enforcement agency if the contents--
``(A) were inadvertently obtained by the service
provider; and
``(B) appear to pertain to the commission of a
crime;''.
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