I 115TH CONGRESS 2D SESSION H R 4943 To amend title 18 United States Code to improve law enforcement access to data stored across borders and for other purposes IN THE HOUSE OF REPRESENTATIVES FEBRUARY 6 2018 Mr COLLINS of Georgia for himself Mr JEFFRIES Mr ISSA Ms DELBENE Mr MARINO Mr RUTHERFORD and Mrs DEMINGS introduced the following bill which was referred to the Committee on the Judiciary and in addition to the Committee on Rules for a period to be subsequently determined by the Speaker in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend title 18 United States Code to improve law enforcement access to data stored across borders and for other purposes 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled 3 SECTION 1 SHORT TITLE 4 This Act may be cited as the ''Clarifying Lawful lotter on DSKBCFDHB2PROD with BILLS 5 Overseas Use of Data Act'' or the ''CLOUD Act'' 6 SEC 2 CONGRESSIONAL FINDINGS 7 VerDate Sep 11 2014 03 37 Feb 08 2018 Congress finds the following Jkt 079200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 lotter on DSKBCFDHB2PROD with BILLS 2 1 1 Timely access to electronic data held by 2 communications-service providers is an essential 3 component of government efforts to protect public 4 safety and combat serious crime including ter- 5 rorism 6 2 Such efforts by the United States Govern- 7 ment are being impeded by the inability to access 8 data stored outside the United States that is in the 9 custody control or possession of communications- 10 service providers that are subject to jurisdiction of 11 the United States 12 3 Foreign governments also increasingly seek 13 access to electronic data held by communications- 14 service providers in the United States for the pur- 15 pose of combating serious crime 16 4 Communications-service providers face po- 17 tential conflicting legal obligations when a foreign 18 government orders production of electronic data that 19 United States law may prohibit providers from dis- 20 closing 21 5 Foreign law may create similarly conflicting 22 legal obligations when chapter 121 of title 18 23 United States Code commonly known as the 24 ''Stored Communications Act'' requires disclosure oHR 4943 IH VerDate Sep 11 2014 05 52 Feb 08 2018 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 3 1 of electronic data that foreign law prohibits commu- 2 nications-service providers from disclosing 3 6 International agreements provide a mecha- 4 nism for resolving these potential conflicting legal 5 obligations where the United States and the relevant 6 foreign government share a common commitment to 7 the rule of law and the protection of privacy and 8 civil liberties 9 SEC 3 PRESERVATION OF RECORDS COMITY ANALYSIS OF 10 11 LEGAL PROCESS a REQUIRED PRESERVATION AND DISCLOSURE OF 12 COMMUNICATIONS AND RECORDS -- 13 1 AMENDMENT --Chapter 121 of title 18 14 United States Code is amended by adding at the 15 end the following 16 '' 2713 Required preservation and disclosure of com17 18 munications and records ''A provider of electronic communication service or 19 remote computing service shall comply with the obligations 20 of this chapter to preserve backup or disclose the con21 tents of a wire or electronic communication and any record 22 or other information pertaining to a customer or sub- lotter on DSKBCFDHB2PROD with BILLS 23 scriber within such provider's possession custody or con24 trol regardless of whether such communication record or oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 4 1 other information is located within or outside of the 2 United States '' 3 2 TABLE OF SECTIONS --The table of sections 4 for chapter 121 of title 18 United States Code is 5 amended by inserting after the item relating to sec- 6 tion 2712 the following ''2713 Required preservation and disclosure of communications and records '' 7 b COMITY ANALYSIS 8 CONTENTS 9 OF TION --Section WIRE OF OR LEGAL PROCESS SEEKING ELECTRONIC COMMUNICA- 2703 of title 18 United States Code is 10 amended by adding at the end the following 11 '' h COMITY ANALYSIS 12 MATION 13 TENTS OF 14 DISCLOSURE OF INFOR- REGARDING LEGAL PROCESS SEEKING CONWIRE OR ELECTRONIC COMMUNICATION -- '' 1 DEFINITIONS --In this subsection-- 15 '' A the term 'qualifying foreign govern- 16 lotter on DSKBCFDHB2PROD with BILLS AND ment' means a foreign government-- 17 '' i with which the United States has 18 an executive agreement that has entered 19 into force under section 2523 and 20 '' ii the laws of which provide to elec- 21 tronic communication service providers and 22 remote computing service providers sub- 23 stantive and procedural opportunities simi- 24 lar to those provided under paragraphs 2 25 and 5 and oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 5 1 2 the meaning given the term in section 2523 3 '' 2 MOTIONS TO QUASH OR MODIFY -- A provider of electronic communication service to the 5 public or remote computing service that is being re- 6 quired to disclose pursuant to legal process issued 7 under this section the contents of a wire or elec- 8 tronic communication of a subscriber or customer 9 may file a motion to modify or quash the legal process where the provider reasonably believes-- 11 '' i that the customer or subscriber is not 12 a United States person and does not reside in 13 the United States and 14 '' ii that the required disclosure would 15 create a material risk that the provider would 16 violate the laws of a qualifying foreign govern- 17 ment 18 Such a motion shall be filed not later than 14 days 19 after the date on which the provider was served with 20 the legal process absent agreement with the govern- 21 ment or permission from the court to extend the 22 deadline based on an application made within the 14 23 days The right to move to quash is without preju- 24 dice to any other grounds to move to quash or de- 25 fenses thereto but it shall be the sole basis for mov- oHR 4943 IH VerDate Sep 11 2014 A 4 10 lotter on DSKBCFDHB2PROD with BILLS '' B the term 'United States person' has 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 lotter on DSKBCFDHB2PROD with BILLS 6 1 ing to quash on the grounds of a conflict of law re- 2 lated to a qualifying foreign government 3 '' B Upon receipt of a motion filed pursuant to 4 subparagraph A the court shall afford the govern- 5 mental entity that applied for or issued the legal 6 process under this section the opportunity to re- 7 spond The court may modify or quash the legal 8 process as appropriate only if the court finds 9 that-- 10 '' i the required disclosure would cause 11 the provider to violate the laws of a qualifying 12 foreign government 13 '' ii based on the totality of the cir- 14 cumstances the interests of justice dictate that 15 the legal process should be modified or quashed 16 and 17 '' iii the customer or subscriber is not a 18 United States person and does not reside in the 19 United States 20 '' 3 COMITY ANALYSIS --For purposes of mak- 21 ing a determination under paragraph 2 B ii the 22 court shall take into account as appropriate-- 23 '' A the interests of the United States in- 24 cluding the investigative interests of the govern- 25 mental entity seeking to require the disclosure oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 7 1 '' B the interests of the qualifying foreign 2 government in preventing any prohibited disclo- 3 sure 4 '' C the likelihood extent and nature of 5 penalties to the provider or any employees of 6 the provider as a result of inconsistent legal re- 7 quirements imposed on the provider 8 '' D the location and nationality of the 9 subscriber or customer whose communications 10 are being sought if known and the nature and 11 extent of the subscriber or customer's connec- 12 tion to the United States or if the legal process 13 has been sought on behalf of a foreign authority 14 pursuant to section 3512 the nature and extent 15 of the subscriber or customer's connection to 16 the foreign authority's country 17 '' E the nature and extent of the pro- 18 vider's ties to and presence in the United 19 States 20 '' F the importance to the investigation of lotter on DSKBCFDHB2PROD with BILLS 21 the information required to be disclosed 22 '' G the likelihood of timely and effective 23 access to the information required to be dis- 24 closed through means that would cause less se- 25 rious negative consequences and oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 8 1 '' H if the legal process has been sought 2 on behalf of a foreign authority pursuant to 3 section 3512 the investigative interests of the 4 foreign authority making the request for assist- 5 ance 6 '' 4 DISCLOSURE 7 ENCY OF CHALLENGE --A 8 serve but not be obligated to produce information 9 sought during the pendency of a motion brought 10 under this subsection unless the court finds that im- 11 mediate production is necessary to prevent an ad- 12 verse result identified in section 2705 a 2 13 lotter on DSKBCFDHB2PROD with BILLS OBLIGATIONS DURING PEND- '' 5 DISCLOSURE service provider shall pre- TO QUALIFYING 14 GOVERNMENT -- A 15 tion of a protective order issued under section 2705 16 for a provider of electronic communication service to 17 the public or remote computing service to disclose to 18 the entity within a qualifying foreign government 19 designated in an executive agreement under section 20 2523 the fact of the existence of legal process 21 issued under this section seeking the contents of a 22 wire or electronic communication of a customer or 23 subscriber who is a national or resident of the quali- 24 fying foreign government It shall not constitute a viola- oHR 4943 IH VerDate Sep 11 2014 FOREIGN 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 9 1 '' B Nothing in this paragraph shall be con- 2 strued to modify or otherwise affect any other au- 3 thority to make a motion to modify or quash a pro- 4 tective order issued under section 2705 '' 5 c RULE OF CONSTRUCTION --Nothing in this sec- 6 tion or an amendment made by this section shall be con7 strued to modify or otherwise affect the common law 8 standards governing the availability or application of com9 ity analysis to other types of compulsory process or to in10 stances of compulsory process issued under section 2703 11 of title 18 United States Code as amended by this sec12 tion and not covered under subsection h 2 of such sec13 tion 2703 14 SEC 4 ADDITIONAL AMENDMENTS TO CURRENT COMMU- 15 16 NICATIONS LAWS Title 18 United States Code is amended-- 17 1 in chapter 119-- 18 A in section 2511 2 by adding at the 19 20 end the following '' j It shall not be unlawful under this chapter for 21 a provider of electronic communication service to the pub22 lic or remote computing service to intercept or disclose the lotter on DSKBCFDHB2PROD with BILLS 23 contents of a wire or electronic communication in response 24 to an order from a foreign government that is subject to 25 an executive agreement that the Attorney General has deoHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 10 1 termined and certified to Congress satisfies section 2 2523 '' and 3 B in section 2520 d by amending para- 4 graph 3 to read as follows 5 '' 3 a good faith determination that section 6 2511 3 2511 2 i or 2511 2 j of this title per- 7 mitted the conduct complained of '' 8 2 in chapter 121-- 9 A in section 2702-- 10 i in subsection b -- 11 I in paragraph 8 by striking 12 the period at the end and inserting '' 13 or'' and 14 II by adding at the end the fol- 15 lowing 16 '' 9 to a foreign government pursuant to an 17 order from a foreign government that is subject to 18 an executive agreement that the Attorney General 19 has determined and certified to Congress satisfies 20 section 2523 '' and 21 ii in subsection c -- 22 I in paragraph 5 by striking lotter on DSKBCFDHB2PROD with BILLS 23 ''or'' at the end oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 11 1 II in paragraph 6 by striking 2 the period at the end and inserting '' 3 or'' and 4 III by adding at the end the 5 following 6 '' 7 to a foreign government pursuant to an 7 order from a foreign government that is subject to 8 an executive agreement that the Attorney General 9 has determined and certified to Congress satisfies 10 section 2523 '' and 11 B in section 2707 e by amending para- 12 graph 3 to read as follows 13 '' 3 a good faith determination that section 14 2511 3 section 2702 b 9 or section 2702 c 7 15 of this title permitted the conduct complained of '' 16 and lotter on DSKBCFDHB2PROD with BILLS 17 3 in chapter 206-- 18 A in section 3121 a by inserting before 19 the period at the end the following ''or an 20 order from a foreign government that is subject 21 to an executive agreement that the Attorney 22 General has determined and certified to Con- 23 gress satisfies section 2523'' and 24 B in section 3124-- oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 12 1 i by amending subsection d to read 2 3 as follows '' d NO CAUSE OF ACTION AGAINST A PROVIDER 4 DISCLOSING INFORMATION UNDER THIS CHAPTER --No 5 cause of action shall lie in any court against any provider 6 of a wire or electronic communication service its officers 7 employees agents or other specified persons for providing 8 information facilities or assistance in accordance with a 9 court order under this chapter request pursuant to section 10 3125 of this title or an order from a foreign government 11 that is subject to an executive agreement that the Attor12 ney General has determined and certified to Congress sat13 isfies section 2523 '' and 14 ii by amending subsection e to 15 16 read as follows '' e DEFENSE --A good faith reliance on a court 17 order under this chapter a request pursuant to section 18 3125 of this title a legislative authorization a statutory 19 authorization or a good faith determination that the con20 duct complained of was permitted by an order from a for21 eign government that is subject to executive agreement 22 that the Attorney General has determined and certified lotter on DSKBCFDHB2PROD with BILLS 23 to Congress satisfies section 2523 is a complete defense 24 against any civil or criminal action brought under this 25 chapter or any other law '' oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 13 1 SEC 5 EXECUTIVE AGREEMENTS ON ACCESS TO DATA BY 2 3 FOREIGN GOVERNMENTS a IN GENERAL --Chapter 119 of title 18 United 4 States Code is amended by adding at the end the fol5 lowing 6 '' 2523 Executive agreements on access to data by 7 foreign governments 8 '' a DEFINITIONS --In this section-- 9 '' 1 the term 'lawfully admitted for permanent 10 residence' has the meaning given the term in section 11 101 a of the Immigration and Nationality Act 8 12 U S C 1101 a and 13 '' 2 the term 'United States person' means a 14 citizen or national of the United States an alien 15 lawfully admitted for permanent residence an unin- 16 corporated association a substantial number of mem- 17 bers of which are citizens of the United States or 18 aliens lawfully admitted for permanent residence or 19 a corporation that is incorporated in the United 20 States 21 '' b EXECUTIVE AGREEMENT REQUIREMENTS -- 22 For purposes of this chapter chapter 121 and chapter lotter on DSKBCFDHB2PROD with BILLS 23 206 an executive agreement governing access by a foreign 24 government to data subject to this chapter chapter 121 25 or chapter 206 shall be considered to satisfy the require26 ments of this section if the Attorney General with the conoHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 14 1 currence of the Secretary of State determines and sub2 mits a written certification of such determination to Con- lotter on DSKBCFDHB2PROD with BILLS 3 gress that-- 4 '' 1 the domestic law of the foreign govern- 5 ment including the implementation of that law af- 6 fords robust substantive and procedural protections 7 for privacy and civil liberties in light of the data col- 8 lection and activities of the foreign government that 9 will be subject to the agreement if-- 10 '' A such a determination under this sec- 11 tion takes into account as appropriate credible 12 information and expert input and 13 '' B the factors to be considered in mak- 14 ing such a determination include whether the 15 foreign government-- 16 '' i has adequate substantive and pro- 17 cedural laws on cybercrime and electronic 18 evidence as demonstrated by being a party 19 to the Convention on Cybercrime done at 20 Budapest November 23 2001 and entered 21 into force January 7 2004 or through do- 22 mestic laws that are consistent with defini- 23 tions and the requirements set forth in 24 chapters I and II of that Convention oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 15 1 '' ii demonstrates respect for the rule 2 of law and principles of nondiscrimination 3 '' iii adheres to applicable inter- 4 national human rights obligations and 5 commitments or demonstrates respect for 6 international universal human rights in- 7 cluding-- 8 '' I protection from arbitrary 9 and unlawful interference with pri- 10 vacy 11 '' II fair trial rights 12 '' III freedom of expression as- 13 sociation and peaceful assembly 14 '' IV prohibitions on arbitrary lotter on DSKBCFDHB2PROD with BILLS 15 arrest and detention and 16 '' V prohibitions against torture 17 and cruel inhuman or degrading 18 treatment or punishment 19 '' iv has clear legal mandates and 20 procedures governing those entities of the 21 foreign government that are authorized to 22 seek data under the executive agreement 23 including procedures through which those 24 authorities collect retain use and share oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 16 1 data and effective oversight of these ac- 2 tivities 3 '' v has sufficient mechanisms to pro- 4 vide accountability and appropriate trans- 5 parency regarding the collection and use of 6 electronic data by the foreign government 7 and 8 '' vi demonstrates a commitment to 9 promote and protect the global free flow of 10 information and the open distributed and 11 interconnected nature of the Internet 12 '' 2 the foreign government has adopted appro- 13 priate procedures to minimize the acquisition reten- 14 tion and dissemination of information concerning 15 United States persons subject to the agreement and 16 '' 3 the agreement requires that with respect lotter on DSKBCFDHB2PROD with BILLS 17 to any order that is subject to the agreement-- 18 '' A the foreign government may not in- 19 tentionally target a United States person or a 20 person located in the United States and shall 21 adopt targeting procedures designed to meet 22 this requirement 23 '' B the foreign government may not tar- 24 get a non-United States person located outside 25 the United States if the purpose is to obtain in- oHR 4943 IH VerDate Sep 11 2014 05 52 Feb 08 2018 Jkt 079200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 17 1 formation concerning a United States person or 2 a person located in the United States 3 '' C the foreign government may not issue 4 an order at the request of or to obtain informa- 5 tion to provide to the United States Govern- 6 ment or a third-party government nor shall the 7 foreign government be required to share any in- 8 formation produced with the United States 9 Government or a third-party government 10 '' D an order issued by the foreign gov- lotter on DSKBCFDHB2PROD with BILLS 11 ernment-- 12 '' i shall be for the purpose of obtain- 13 ing information relating to the prevention 14 detection investigation or prosecution of 15 serious crime including terrorism 16 '' ii shall identify a specific person 17 account address or personal device or 18 any other specific identifier as the object of 19 the order 20 '' iii shall be in compliance with the 21 domestic law of that country and any obli- 22 gation for a provider of an electronic com- 23 munications service or a remote computing 24 service to produce data shall derive solely 25 from that law oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 18 1 '' iv shall be based on requirements 2 for a reasonable justification based on 3 articulable and credible facts particularity 4 legality and severity regarding the conduct 5 under investigation 6 '' v shall be subject to review or over- 7 sight by a court judge magistrate or 8 other independent authority and 9 '' vi in the case of an order for the 10 interception of wire or electronic commu- 11 nications and any extensions thereof shall 12 require that the interception order-- 13 '' I be for a fixed limited dura- lotter on DSKBCFDHB2PROD with BILLS 14 tion 15 '' II may not last longer than is 16 reasonably necessary to accomplish 17 the approved purposes of the order 18 and 19 '' III be issued only if the same 20 information could not reasonably be 21 obtained by another less intrusive 22 method 23 '' E an order issued by the foreign gov- 24 ernment may not be used to infringe freedom of 25 speech oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 lotter on DSKBCFDHB2PROD with BILLS 19 1 '' F the foreign government shall prompt- 2 ly review material collected pursuant to the 3 agreement and store any unreviewed commu- 4 nications on a secure system accessible only to 5 those persons trained in applicable procedures 6 '' G the foreign government shall using 7 procedures that to the maximum extent pos- 8 sible meet the definition of minimization proce- 9 dures in section 101 of the Foreign Intelligence 10 Surveillance Act of 1978 50 U S C 1801 seg- 11 regate seal or delete and not disseminate ma- 12 terial found not to be information that is or is 13 necessary to understand or assess the impor- 14 tance of information that is relevant to the pre- 15 vention detection investigation or prosecution 16 of serious crime including terrorism or nec- 17 essary to protect against a threat of death or 18 serious bodily harm to any person 19 '' H the foreign government may not dis- 20 seminate the content of a communication of a 21 United States person to United States authori- 22 ties unless the communication may be dissemi- 23 nated pursuant to subparagraph G and re- 24 lates to significant harm or the threat thereof 25 to the United States or United States persons oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 lotter on DSKBCFDHB2PROD with BILLS 20 1 including crimes involving national security 2 such as terrorism significant violent crime 3 child 4 crime or significant financial fraud exploitation transnational 5 '' I the foreign government shall afford 6 reciprocal rights of data access to include 7 where applicable removing restrictions on com- 8 munications service providers including pro- 9 viders subject to United States jurisdiction and 10 thereby allow them to respond to valid legal 11 process sought by a governmental entity as de- 12 fined in section 2711 if foreign law would oth- 13 erwise prohibit communications-service pro- 14 viders from disclosing the data 15 '' J the foreign government shall agree to 16 periodic review of compliance by the foreign 17 government with the terms of the agreement to 18 be conducted by the United States Government 19 and 20 '' K the United States Government shall 21 reserve the right to render the agreement inap- 22 plicable as to any order for which the United 23 States Government concludes the agreement 24 may not properly be invoked oHR 4943 IH VerDate Sep 11 2014 organized 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 21 1 '' c LIMITATION ON JUDICIAL REVIEW --A deter- 2 mination or certification made by the Attorney General 3 under subsection b shall not be subject to judicial or ad4 ministrative review lotter on DSKBCFDHB2PROD with BILLS 5 '' d EFFECTIVE DATE OF CERTIFICATION -- 6 '' 1 NOTICE --Not later than 7 days after the 7 date on which the Attorney General certifies an ex- 8 ecutive agreement under subsection b the Attorney 9 General shall provide notice of the determination 10 under subsection b and a copy of the executive 11 agreement to Congress including-- 12 '' A the Committee on the Judiciary and 13 the Committee on Foreign Relations of the Sen- 14 ate and 15 '' B the Committee on the Judiciary and 16 the Committee on Foreign Affairs of the House 17 of Representatives 18 '' 2 ENTRY INTO FORCE --An executive agree- 19 ment that is determined and certified by the Attor- 20 ney General to satisfy the requirements of this sec- 21 tion shall enter into force not earlier than the date 22 that is 90 days after the date on which notice is pro- 23 vided under paragraph 1 unless Congress enacts 24 a joint resolution of disapproval in accordance with 25 paragraph 4 oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 22 1 '' 3 CONSIDERATION 2 '' A IN GENERAL --During the 60-day pe- 3 riod beginning on the date on which notice is 4 provided under paragraph 1 each congres- 5 sional committee described in paragraph 1 6 may-- 7 '' i hold one or more hearings on the 8 lotter on DSKBCFDHB2PROD with BILLS BY COMMITTEES -- executive agreement and 9 '' ii submit to their respective House 10 of Congress a report recommending wheth- 11 er the executive agreement should be ap- 12 proved or disapproved 13 '' B REQUESTS FOR INFORMATION -- 14 Upon request by the Chairman or Ranking 15 Member of a congressional committee described 16 in paragraph 1 the head of an agency shall 17 promptly furnish a summary of factors consid- 18 ered in determining that the foreign govern- 19 ment satisfies the requirements of this section 20 '' 4 CONGRESSIONAL 21 '' A JOINT REVIEW -- RESOLUTION DEFINED --In 22 this paragraph the term 'joint resolution' 23 means only a joint resolution-- 24 '' i introduced during the 90-day pe- 25 riod described in paragraph 2 oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 lotter on DSKBCFDHB2PROD with BILLS 23 1 '' ii which does not have a preamble 2 '' iii the title of which is as follows 3 'Joint resolution disapproving the executive 4 agreement signed by the United States and 5 ll ' the blank space being appropriately 6 filled in and 7 '' iv the matter after the resolving 8 clause of which is as follows 'That Con- 9 gress disapproves the executive agreement 10 governing access by lll to certain elec- 11 tronic data as submitted by the Attorney 12 General on lll' the blank spaces being 13 appropriately filled in 14 '' B JOINT RESOLUTION ENACTED --Not- 15 withstanding any other provision of this section 16 if not later than 90 days after the date on 17 which notice is provided to Congress under 18 paragraph 1 there is enacted into law a joint 19 resolution disapproving of an executive agree- 20 ment under this section the executive agree- 21 ment shall not enter into force 22 '' C INTRODUCTION --During the 90-day 23 period described in subparagraph B a joint 24 resolution of disapproval may be introduced-- oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 24 1 '' i in the House of Representatives 2 by the majority leader or the minority 3 leader and 4 '' ii in the Senate by the majority 5 leader or the majority leader's designee 6 or the minority leader or the minority 7 leader's designee 8 '' 5 FLOOR 9 REPRESENTATIVES --If IN HOUSE a committee of the House of Representatives to which a joint resolution of dis- 11 approval has been referred has not reported the joint 12 resolution within 60 days after the date of referral 13 that committee shall be discharged from further con- 14 sideration of the joint resolution '' 6 CONSIDERATION 16 IN THE SENATE -- '' A COMMITTEE REFERRAL --A joint res- 17 olution of disapproval introduced in the Senate 18 shall be-- 19 '' i referred to the Committee on the 20 Judiciary and 21 '' ii referred to the Committee on 22 Foreign Relations 23 '' B REPORTING AND DISCHARGE --If a 24 committee to which a joint resolution of dis- 25 approval was referred has not reported the joint oHR 4943 IH VerDate Sep 11 2014 OF 10 15 lotter on DSKBCFDHB2PROD with BILLS CONSIDERATION 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 25 1 resolution within 60 days after the date of re- 2 ferral of the joint resolution that committee 3 shall be discharged from further consideration 4 of the joint resolution and the joint resolution 5 shall be placed on the appropriate calendar 6 '' C PROCEEDING 7 Notwithstanding rule XXII of the Standing 8 Rules of the Senate it is in order at any time 9 after either the Committee on the Judiciary or 10 the Committee on Foreign Relations as the 11 case may be reports a joint resolution of dis- 12 approval to the Senate or has been discharged 13 from consideration of such a joint resolution 14 even though a previous motion to the same ef- 15 fect has been disagreed to to move to proceed 16 to the consideration of the joint resolution and 17 all points of order against the joint resolution 18 and against consideration of the joint resolu- 19 tion are waived The motion is not subject to 20 a motion to postpone A motion to reconsider 21 the vote by which the motion is agreed to or 22 disagreed to shall not be in order 23 lotter on DSKBCFDHB2PROD with BILLS TO CONSIDERATION -- '' D RULINGS OF THE CHAIR ON PROCE- 24 DURE --Appeals 25 relating to the application of the rules of the from the decisions of the Chair oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 26 1 Senate as the case may be to the procedure re- 2 lating to a joint resolution of disapproval shall 3 be decided without debate 4 '' E OF VETO SAGES --Debate 6 sage with respect to a joint resolution of dis- 7 approval including all debatable motions and 8 appeals in connection with the joint resolution 9 shall be limited to 10 hours to be equally di- 10 vided between and controlled by the majority 11 leader and the minority leader or their des- 12 ignees 13 '' 7 RULES in the Senate of any veto mes- RELATING TO SENATE AND HOUSE OF REPRESENTATIVES -- 15 '' A TREATMENT OF SENATE JOINT RESO- 16 LUTION IN HOUSE --In 17 resentatives the following procedures shall 18 apply to a joint resolution of disapproval re- 19 ceived from the Senate unless the House has 20 already passed a joint resolution relating to the 21 same proposed action 22 the House of Rep- '' i The joint resolution shall be re- 23 ferred to the appropriate committees 24 '' ii If a committee to which a joint 25 resolution has been referred has not re- oHR 4943 IH VerDate Sep 11 2014 MES- 5 14 lotter on DSKBCFDHB2PROD with BILLS CONSIDERATION 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 lotter on DSKBCFDHB2PROD with BILLS 27 1 ported the joint resolution within 7 days 2 after the date of referral that committee 3 shall be discharged from further consider- 4 ation of the joint resolution 5 '' iii Beginning on the third legisla- 6 tive day after each committee to which a 7 joint resolution has been referred reports 8 the joint resolution to the House or has 9 been discharged from further consideration 10 thereof it shall be in order to move to pro- 11 ceed to consider the joint resolution in the 12 House All points of order against the mo- 13 tion are waived Such a motion shall not be 14 in order after the House has disposed of a 15 motion to proceed on the joint resolution 16 The previous question shall be considered 17 as ordered on the motion to its adoption 18 without intervening motion The motion 19 shall not be debatable A motion to recon- 20 sider the vote by which the motion is dis- 21 posed of shall not be in order 22 '' iv The joint resolution shall be con- 23 sidered as read All points of order against 24 the joint resolution and against its consid- 25 eration are waived The previous question oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 28 1 shall be considered as ordered on the joint 2 resolution to final passage without inter- 3 vening motion except 2 hours of debate 4 equally divided and controlled by the spon- 5 sor of the joint resolution or a designee 6 and an opponent A motion to reconsider 7 the vote on passage of the joint resolution 8 shall not be in order 9 '' B TREATMENT 10 LUTION IN SENATE -- 11 '' i If before the passage by the Sen- 12 ate of a joint resolution of disapproval the 13 Senate receives an identical joint resolution 14 from the House of Representatives the fol- 15 lowing procedures shall apply 16 '' I That joint resolution shall 17 not be referred to a committee 18 '' II With respect to that joint 19 lotter on DSKBCFDHB2PROD with BILLS OF HOUSE JOINT RESO- resolution-- 20 '' aa the procedure in the 21 Senate shall be the same as if no 22 joint resolution had been received 23 from the House of Representa- 24 tives but oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 29 1 '' bb the vote on passage 2 shall be on the joint resolution 3 from the House of Representa- 4 tives 5 '' ii If following passage of a joint 6 resolution of disapproval in the Senate the 7 Senate receives an identical joint resolution 8 from the House of Representatives that 9 joint resolution shall be placed on the ap- lotter on DSKBCFDHB2PROD with BILLS 10 propriate Senate calendar 11 '' iii If a joint resolution of dis- 12 approval is received from the House and 13 no companion joint resolution has been in- 14 troduced in the Senate the Senate proce- 15 dures under this subsection shall apply to 16 the House joint resolution 17 '' C APPLICATION TO REVENUE 18 URES --The 19 not apply in the House of Representatives to a 20 joint resolution of disapproval that is a revenue 21 measure 22 '' 8 RULES provisions of this paragraph shall OF HOUSE OF REPRESENTATIVES 23 AND SENATE --This 24 gress-- subsection is enacted by Con- oHR 4943 IH VerDate Sep 11 2014 MEAS- 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 30 1 '' A as an exercise of the rulemaking 2 power of the Senate and the House of Rep- 3 resentatives respectively and as such is deemed 4 a part of the rules of each House respectively 5 and supersedes other rules only to the extent 6 that it is inconsistent with such rules and 7 '' B with full recognition of the constitu- 8 tional right of either House to change the rules 9 so far as relating to the procedure of that 10 House at any time in the same manner and 11 to the same extent as in the case of any other 12 rule of that House 13 '' e RENEWAL OF DETERMINATION -- lotter on DSKBCFDHB2PROD with BILLS 14 '' 1 IN GENERAL --The Attorney General with 15 the concurrence of the Secretary of State shall 16 renew a determination under subsection b every 5 17 years 18 '' 2 REPORT --Upon renewing a determination 19 under subsection b the Attorney General shall file 20 a report with the Committee on the Judiciary and 21 the Committee on Foreign Relations of the Senate 22 and the Committee on the Judiciary and the Com- 23 mittee on Foreign Affairs of the House of Rep- 24 resentatives describing-- 25 '' A the reasons for the renewal oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 31 1 '' B any substantive changes to the agree- 2 ment or to the relevant laws or procedures of 3 the foreign government since the original deter- 4 mination or in the case of a second or subse- 5 quent renewal since the last renewal and 6 '' C how the agreement has been imple- 7 mented and what problems or controversies if 8 any have arisen as a result of the agreement 9 or its implementation 10 '' 3 NONRENEWAL --If a determination is not 11 renewed under paragraph 1 the agreement shall 12 no longer be considered to satisfy the requirements 13 of this section 14 '' f PUBLICATION --Any determination or certifi- 15 cation under subsection b regarding an executive agree16 ment under this section including any termination or re17 newal of such an agreement shall be published in the Fed18 eral Register as soon as is reasonably practicable 19 '' g MINIMIZATION PROCEDURES --A United States 20 authority that receives the content of a communication de21 scribed in subsection b 3 H from a foreign government 22 in accordance with an executive agreement under this sec- lotter on DSKBCFDHB2PROD with BILLS 23 tion shall use procedures that to the maximum extent pos24 sible meet the definition of minimization procedures in 25 section 101 of the Foreign Intelligence Surveillance Act oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E BILLS H4943 IH H4943 32 1 of 1978 50 U S C 1801 to appropriately protect non2 publicly available information concerning United States 3 persons '' 4 b TABLE OF SECTIONS AMENDMENT --The table of 5 sections for chapter 119 of title 18 United States Code 6 is amended by inserting after the item relating to section 7 2522 the following ''2523 Executive agreements on access to data by foreign governments '' 8 SEC 6 RULE OF CONSTRUCTION 9 Nothing in this Act or the amendments made by this 10 Act shall be construed to preclude any foreign authority 11 from obtaining assistance in a criminal investigation or 12 prosecution pursuant to section 3512 of title 18 United 13 States Code section 1782 of title 28 United States Code 14 or as otherwise provided by law lotter on DSKBCFDHB2PROD with BILLS AE oHR 4943 IH VerDate Sep 11 2014 03 37 Feb 08 2018 Jkt 079200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6301 E BILLS H4943 IH H4943 This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu