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116TH CONGRESS

2D SESSION

S. ll

To improve the ability of law enforcement agencies to access encrypted data,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

llllllllll

Mr. GRAHAM (for himself, Mr. COTTON, and Mrs. BLACKBURN) introduced

the following bill; which was read twice and referred to the Committee

on llllllllll

A BILL

To improve the ability of law enforcement agencies to access

encrypted data, and for other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the

‘‘Lawful Access to

Encrypted Data Act’’.

SEC. 2. TABLE OF CONTENTS.

The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—DATA AT REST

Sec. 101. Data at rest.

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TITLE II—DATA IN MOTION

Sec. 201. Assistance.

Sec. 202. Capability.

Sec. 203. CALEA amendment.

TITLE III—ASSISTANCE CAPABILITY DIRECTIVES

Sec. 301. Assistance capability directives.

TITLE IV—PEN REGISTER AND TRAP AND TRACE AMENDMENTS

Sec.

401.

Capability requirements.

Sec.

402.

Defining technical assistance.

TITLE V—FISA AMENDMENTS

Sec.

501.

Electronic surveillance within the United States for foreign intel-

ligence purposes.

Sec.

502.

Physical searches within the United States for foreign intelligence

purposes.

Sec.

503.

Pen register; trap and trace.

Sec.

504.

Business records.

Sec.

505.

Certain acquisitions inside the United States targeting United States

persons outside the United States.

TITLE VI—PRIZE COMPETITION

Sec.

601.

Findings.

Sec.

602.

Definitions.

Sec.

603.

Prize competition.

Sec.

604.

Implementation.

Sec.

605.

Judges.

Sec.

606.

Report to Congress.

Sec.

607.

Authorization of appropriations.

Sec.

608.

Termination of authority.

TITLE VII—LAWFUL ACCESS TRAINING

Sec.

701.

Lawful access training program.

TITLE VIII—EFFECTIVE DATE

Sec.

801.

Effective date.

TITLE I—DATA AT REST

SEC. 101. DATA AT REST.

(a) IN GENERAL.—Chapter 205 of title 18, United

States Code, is amended by adding at the end the fol-

lowing:

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‘‘§ 3119. Assistance orders to third parties and capa-

bility requirements

‘‘(a) DEFINITIONS.—In this section—

‘‘(1) the term

‘consumer electronic device’

means a device that—

‘‘(A) may be purchased by a member of

the general public; and

‘‘(B) can be configured to store 1 gigabyte

of data or more;

‘‘(2) the term ‘court of competent jurisdiction’

means—

‘‘(A) a district court of the United States

(including a magistrate judge of such a court)

or a United States court of appeals; and

‘‘(B) a court of general criminal jurisdic-

tion of a State authorized by the law of that

State to issue search warrants;

‘‘(3) the term

‘device manufacturer’ means a

person who designs, manufactures, fabricates, or as-

sembles a finished consumer electronic device;

‘‘(4) the term

‘governmental entity’ has the

meaning given the term in section 2711;

‘‘(5) the term

‘operating system provider’

means a person who designs, markets, or sells soft-

ware that—

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‘‘(A) controls the operation of a consumer

electronic device; and

‘‘(B) directs the processing of programs on

the consumer electronic device (such as by as-

signing storage space in memory and control-

ling input and output functions);

‘‘(6) the term

‘remote computing service’ has

the meaning given the term in section 2711; and

‘‘(7) the term ‘State’ means any State of the

United States, the District of Columbia, the Com-

monwealth of Puerto Rico, and any territory or pos-

session of the United States.

‘‘(b) COURT ORDER FOR ASSISTANCE.—

‘‘(1) IN GENERAL.—A court of competent juris-

diction, in support of a search warrant based upon

probable cause issued by the court that authorizes

the search of an electronic device or remotely stored

electronic information, shall, upon receiving a mo-

tion described in paragraph (3) that states reason-

able grounds to believe that the assistance required

by the order will aid in the execution of the warrant,

order a device manufacturer, an operating system

provider, a provider of remote computing service, or

another person to furnish all information, facilities,

and assistance necessary to access information

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stored on an electronic device or to access remotely

stored electronic information, as authorized by the

search warrant.

‘‘(2) ASSISTANCE.—The information, facilities,

and assistance ordered to be furnished under para-

graph (1) shall include—

‘‘(A) isolating the information authorized

to be searched;

‘‘(B) decrypting or decoding information

on the electronic device or remotely stored elec-

tronic information that is authorized to be

searched, or otherwise providing such informa-

tion in an intelligible format, unless the inde-

pendent actions of an unaffiliated entity make

it technically impossible to do so; and

‘‘(C) providing technical support as nec-

essary to ensure effective execution of the war-

rant for the electronic devices particularly de-

scribed by the warrant.

‘‘(3) MOTION.—An attorney for a governmental

entity may move that the court issue an order under

this subsection—

‘‘(A) after a search warrant that author-

izes the search of an electronic device or re-

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motely stored electronic information has been

issued; or

‘‘(B) concurrently with an application for a

search warrant described in subparagraph (A).

‘‘(4) COMPENSATION AND EXEMPTION FROM LI-

ABILITY.—

‘‘(A) IN GENERAL.—Subject to subpara-

graph

(B), a device manufacturer, operating

system provider, provider of remote computing

service, or other person furnishing information,

facilities, or assistance pursuant to an order

issued under this subsection—

‘‘(i) shall be compensated for reason-

able expenses directly incurred in com-

plying with the order; and

‘‘(ii) may not be held civilly liable to

any party for any action taken that is rea-

sonably necessary to comply with the

order.

‘‘(B) LIMITATION.—Reasonable expenses

under subparagraph (A) may not exceed $300.

‘‘(c) CAPABILITY TO ASSIST.—

‘‘(1) DEVICE MANUFACTURERS.—A device man-

ufacturer that sold more than 1,000,000 consumer

electronic devices in the United States in 2016 or

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any calendar year thereafter, or that has received an

assistance capability directive under section

3513,

shall ensure that the manufacturer has the ability to

provide the assistance described in subsection (b)(2)

for any consumer electronic device that the manufac-

turer—

‘‘(A) designs, manufactures, fabricates, or

assembles; and

‘‘(B) intends for sale or distribution in the

United States.

‘‘(2) PROVIDERS OF REMOTE COMPUTING SERV-

ICE; OPERATING SYSTEM PROVIDERS.—A provider of

remote computing service or operating system pro-

vider that provided service to more than 1,000,000

subscribers or users in the United States in 2016 or

any calendar year thereafter, or that has received an

assistance capability directive under section

3513,

shall ensure that the provider has the ability to pro-

vide the assistance described in subparagraphs (A)

and (B) of subsection (b)(2) for any remotely stored

data that the provider processes or stores.

‘‘(3) CONTRACTING AUTHORIZED.—A device

manufacturer, provider of remote computing service,

or operating system provider may satisfy the obliga-

tions under this subsection by contracting with any

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other United States person or entity to provide the

required assistance.

‘‘(4) COSTS.—A device manufacturer, provider

of remote computing service, or operating system

provider to which this subsection applies shall bear

the costs associated with the development of the ca-

pability required under this subsection, including

any contracting costs incurred by the device manu-

facturer, provider of remote computing service, or

operating system provider under paragraph (3), un-

less the manufacturer or provider has received an

assistance capability directive under section 3513.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—

The table of sections for chapter 205 of title 18, United

States Code, is amended by adding at the end the fol-

lowing:

‘‘3119. Assistance orders to third parties and capability requirements.’’.

3119(c)(1) of title 18, United States Code, as added by

subsection (a), shall apply with respect to a consumer elec-

tronic device manufactured on or after the effective date

in section 801 of this Act.

TITLE II—DATA IN MOTION

SEC. 201. ASSISTANCE.

Section 2518(4) of title 18, United States Code, is

amended, in the undesignated matter following paragraph

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(e), by striking ‘‘with a minimum of interference with the

services that such service provider, landlord, custodian, or

person is according the person whose communications are

to be intercepted. Any provider of wire or electronic com-

munication service, landlord, custodian or other person

furnishing such facilities or technical assistance shall be

compensated therefor by the applicant for reasonable ex-

penses incurred in providing such facilities or assistance.’’

and inserting the following: ‘‘in a manner designed to up-

hold the nondisclosure obligations under section

2511(2)

(a)(ii).

Such furnishing of information, facilities, and technical as-

sistance shall include—

‘‘(i) isolating all communications au-

thorized to be intercepted;

‘‘(ii) decrypting, decoding, or other-

wise providing in an intelligible format the

communications authorized to be inter-

cepted, unless the independent actions of

an unaffiliated entity make it technically

impossible to do so; and

‘‘(iii) delivering all communications

authorized to be intercepted securely, reli-

ably, and concurrently with their trans-

mission.

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Any provider of wire or electronic communication service,

landlord, custodian, or other person furnishing such infor-

mation, facilities, or technical assistance shall be com-

pensated therefor by the applicant for reasonable expenses

directly incurred in providing such information, facilities,

or assistance.’’.

SEC. 202. CAPABILITY.

(a) IN GENERAL.—Chapter 119 of title 18, United

States Code, is amended by adding at the end the fol-

lowing:

‘‘§ 2524. Capability requirements

‘‘(a) IN GENERAL.—A provider of wire or electronic

communication service that had more than

1,000,000

monthly active users in the United States in January 2016

or any month thereafter, or has received an assistance ca-

pability directive under section 3513, shall ensure that the

provider has the ability to provide the information, facili-

ties, and technical assistance described in section 2518(4).

‘‘(b) CALCULATION OF MONTHLY ACTIVE USERS.—

For purposes of subsection (a), the number of monthly

active users of a wire or electronic communication service

shall be calculated by taking the average of the number

of individual users or subscribers of the service that are

active per month in any calendar year.

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‘‘(c) COSTS.—A provider of wire or electronic commu-

nication service to which subsection (a) applies shall bear

any costs associated with the development of the capability

required under that subsection, unless the provider has re-

ceived an assistance capability directive under section

3513.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—

The table of sections for chapter 119 of title 18, United

States Code, is amended by adding at the end the fol-

lowing:

‘‘2524. Capability requirements.’’.

SEC. 203. CALEA AMENDMENT.

(a) IN GENERAL.—Section 103(b)(3) of the Commu-

nications Assistance for Law Enforcement Act (47 U.S.C.

1002(b)(3)) is amended—

(1) by striking ‘‘, or ensuring the government’s

ability to decrypt,’’;

(2) by striking ‘‘the encryption was provided’’

and inserting ‘‘the means of encryption or other en-

coding was implemented by or facilitated’’; and

(3) by striking ‘‘and the carrier possesses the

information necessary to decrypt the communica-

tion’’.

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TITLE III—ASSISTANCE

CAPABILITY DIRECTIVES

SEC. 301. ASSISTANCE CAPABILITY DIRECTIVES.

(a) IN GENERAL.—Chapter 223 of title 18, United

States Code, is amended by adding at the end the fol-

lowing:

‘‘§ 3513. Assistance capability directives

‘‘(a) DEFINITIONS.—The definitions in sections 2510

and 3119 shall apply to this section.

‘‘(b) CONTENTS OF DIRECTIVES AND PROCEDURE

FOR ISSUING.—

‘‘(1) AUTHORITY.—

‘‘(A) IN GENERAL.—If the Attorney Gen-

eral makes the applicable finding with respect

to a person under paragraph (3), the Attorney

General may direct the person to create or

maintain any of the assistance capabilities de-

scribed in section 2518, 2524, 3119, 3127, or

3128.

‘‘(B) WRITTEN DIRECTIVE.—A directive

issued under subparagraph (A) shall be in writ-

ing.

‘‘(2) REQUIRED REPORTING.—Not later than

30 days after the date on which a person receives a

directive from the Attorney General under para-

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graph (1), the person shall report to the Attorney

General, or a designee of the Attorney General, on,

at a minimum—

‘‘(A) any technical capabilities that the

person knows or expects to be necessary to im-

plement and comply with an anticipated court

order or other lawful authorization under sec-

tion 2518, 3119, or 3123; and

‘‘(B) the timeline of the person for devel-

oping and deploying the technical capabilities

described in subparagraph (A).

‘‘(3) FINDINGS.—The Attorney General may

issue a directive to a person under paragraph (1)

only if the Attorney General finds—

‘‘(A) in the case of assistance capabilities

described in section 2518, 2524, or 3128 that

during the preceding calendar year, communica-

tions occurring over services the person offers,

provides, or has access to were subject to not

fewer than 5 court orders issued under—

‘‘(i) chapter 119 of this title; or

‘‘(ii) the Foreign Intelligence Surveil-

lance Act of

1978

(50 U.S.C.

1801 et

seq.); or

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‘‘(B) in the case of assistance capabilities

described in section 3119, that, during the pre-

ceding calendar year, data stored in any device,

service, or operating system sold or licensed by

the person was subject to not fewer than 5 Fed-

eral or State search warrants.

‘‘(4) RELEASE FROM LIABILITY.—No civil

cause of action shall lie in any court against a per-

son who receives a directive under paragraph (1) for

any action or omission reasonably necessary to com-

ply with the directive.

‘‘(5) EFFECTIVE DATE AND EXPIRATION DATE

OF DIRECTIVES.—

‘‘(A) IN GENERAL.—Subject to subpara-

graph (B), a directive issued under paragraph

(1) shall contain—

‘‘(i) a date on which the directive

takes effect; and

‘‘(ii) a date when the directive expires.

‘‘(B) LIMITS.—A directive issued under

paragraph (1) may not—

‘‘(i) take effect earlier than 180 days

after the date on which the directive is

issued; or

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‘‘(ii) expire later than

2 years after

the date on which the directive takes ef-

fect.

‘‘(6) REPORTING.—Not later than 30 days after

the date on which a directive issued under para-

graph (1) takes effect, the Attorney General shall

submit to the Committee on the Judiciary of the

Senate and the Committee on the Judiciary of the

House of Representatives a copy of the directive.

‘‘(7) NO TECHNICAL DEMANDS.—A directive

issued to a person under paragraph

(1) may not

specify technical means by which the person is re-

quired to implement the required capabilities.

‘‘(c) CHALLENGES OF DIRECTIVES AND APPEAL.—

‘‘(1) PETITION.—Not later than 30 days after

the date on which the Attorney General issues a di-

rective to a person under subsection (b), the person

may file a petition to modify or set aside the direc-

tive in the United States District Court for the Dis-

trict of Columbia.

‘‘(2) CONSIDERATION OF PETITION.—

‘‘(A) GRANT.—The court may grant a pe-

tition filed under paragraph (1) only if—

‘‘(i) the directive does not meet the

requirements of this section;

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‘‘(ii) the person filing the petition

demonstrates, by clear and convincing evi-

dence, that it is technically impossible for

the person to make any change to the way

the hardware, software, or other property

of the person behaves in order to comply

with the directive; or

‘‘(iii) the directive is otherwise unlaw-

ful.

‘‘(B) DENIAL.—If none of the bases for

granting a petition under subparagraph (A) are

met, the court shall deny the petition.

‘‘(C) EX PARTE REVIEW.—

‘‘(i) IN GENERAL.—In considering a

petition filed under paragraph

(1), the

court may review any information that the

Attorney General, upon filing an affidavit

under oath that disclosure of the informa-

tion would harm the national security of

the United States or harm the enforcement

of criminal law, chooses to provide to the

court solely for ex parte review.

‘‘(ii) NO WAIVER OF PRIVILEGE.—The

exercise of the authority under clause

(i)

does not waive any applicable privilege.

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‘‘(3) INITIAL REVIEW.—

‘‘(A) DEADLINE.—Not later than 30 days

after the date on which a petition is filed under

paragraph (1), the court shall conduct an initial

review of the petition.

‘‘(B) REVIEW.—If the court determines

that the petition does not consist of claims, de-

fenses, or other legal contentions that are war-

ranted by existing law or by a non-frivolous ar-

gument for extending, modifying, or reversing

existing law or for establishing new law, the

court shall immediately—

‘‘(i) deny the petition;

‘‘(ii) affirm the directive or any part

of the directive that is the subject of the

petition; and

‘‘(iii) order the recipient to comply

with the directive or part thereof.

‘‘(C) WRITTEN STATEMENT.—Upon mak-

ing a determination under subparagraph (B) or

promptly thereafter, the court shall provide a

written statement for the record of the reasons

for the determination.

‘‘(4) PLENARY REVIEW.—

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‘‘(A) DEADLINE.—If the court determines

that a petition filed under paragraph

(1) re-

quires plenary review—

‘‘(i) not later than 60 days after the

petition is filed, the court shall affirm,

modify, or set aside the directive that is

the subject of the petition; or

‘‘(ii) if the court does not set aside

the directive by the date specified under

clause (i), the court shall immediately, or

in any event not later than 5 days there-

after—

‘‘(I) affirm or affirm with modi-

fications the directive; and

‘‘(II) order the person who re-

ceived the directive to comply with the

directive in its entirety or as modified.

‘‘(B) WRITTEN STATEMENT.—Upon mak-

ing a determination under subparagraph (A) or

promptly thereafter, the court shall provide a

written statement for the record of the reasons

for the determination.

‘‘(5) APPEALS.—

‘‘(A) RIGHT OF APPEAL.—The Attorney

General or a person who receives a directive

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under subsection (b) may appeal a final order

of the district court under this subsection not

later than 30 days after entry of the order.

‘‘(B) PROCEDURE.—The United States

Court of Appeals for the District of Columbia

Circuit shall expedite the consideration of any

appeal brought under this paragraph, and the

expense or effort required to comply with a di-

rective issued under subsection (b) shall not be

a basis for staying a final order of the district

court under this subsection pending appeal.

‘‘(d) ENFORCEMENT OF DIRECTIVES.—

‘‘(1) FAILURE TO COMPLY.—If a person fails to

comply with a directive issued under subsection (b),

the Attorney General may file a petition for an order

to compel the person to comply with the directive in

the United States District Court for the District of

Columbia, which shall have jurisdiction to review the

petition.

‘‘(2) EX PARTE REVIEW.—

‘‘(A) IN GENERAL.—In considering a peti-

tion filed under paragraph (1), the court may

review any information that the Attorney Gen-

eral, upon filing an affidavit under oath that

disclosure of the information would harm the

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national security of the United States or harm

the enforcement of criminal law, chooses to pro-

vide to the court solely for ex parte review.

‘‘(B) NO WAIVER OF PRIVILEGE.—The ex-

ercise of the authority under subparagraph (A)

does not waive any applicable privilege.

‘‘(3) ORDER TO COMPLY.—

‘‘(A) IN GENERAL.—Not later than

days after a petition is filed under paragraph

(1), the court shall issue an order requiring the

person to comply with the directive or any part

of the directive, as issued or as modified, if the

court finds that the directive meets the require-

ments of this section and is otherwise lawful.

‘‘(B) WRITTEN STATEMENT.—Upon mak-

ing a determination under subparagraph (A) or

promptly thereafter, the court shall provide a

written statement for the record of the reasons

for the determination.

‘‘(4) PENALTY.—Failure to obey an order

issued under paragraph

(3) shall constitute con-

tempt of court.

‘‘(5) PROCESS.—Any process under this sub-

section may be served in any judicial district in

which the recipient may be found or does business.

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‘‘(6) APPEALS.—

‘‘(A) RIGHT OF APPEAL.—The Attorney

General or a person who receives a directive

under subsection (b) may appeal a final order

of the district court under this subsection not

later than 30 days after entry of the order.

‘‘(B) PROCEDURE.—The United States

Court of Appeals for the District of Columbia

Circuit shall expedite the consideration of any

appeal brought under this paragraph, and the

expense or effort required to comply with a di-

rective issued under subsection (b) shall not be

a basis for staying a final order of the district

court order under this subsection pending ap-

peal.

‘‘(e) COST REIMBURSEMENT.—

‘‘(1) IN GENERAL.—Subject to paragraph (3), a

person who receives a directive under subsection (b)

shall be compensated therefor by the United States

for reasonable expenses directly incurred in com-

plying with the directive.

‘‘(2) AMOUNT.—The amount of compensation

provided under paragraph (1)—

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‘‘(A) shall be mutually agreed upon by the

Attorney General and the person complying

with the directive; or

‘‘(B) in the absence of an agreement under

subparagraph (A), shall be determined by the

United States District Court for the District of

Columbia.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—

The table of sections for chapter 223 of title 18, United

States Code, is amended by adding at the end the fol-

lowing:

‘‘3513. Assistance capability directives.’’.

TITLE IV—PEN REGISTER AND

TRAP AND TRACE AMENDMENTS

SEC. 401. CAPABILITY REQUIREMENTS.

(a) IN GENERAL.—Chapter 206 of title 18, United

States Code, is amended by adding at the end the fol-

lowing:

‘‘§ 3128. Capability requirements

‘‘(a) PEN REGISTER CAPABILITY.—

‘‘(1) IN GENERAL.—A wire or electronic com-

munication service provider that had more than

1,000,000 monthly active users in the United States

in January 2016 or any month thereafter shall en-

sure that the provider has the ability to provide the

information described in paragraphs (3) and (7) of

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section 3127 directly to law enforcement agencies in

an intelligible format unobtrusively and in a manner

designed to uphold the nondisclosure obligations

under section 3123(d)(2).

‘‘(2) CALCULATION OF MONTHLY ACTIVE

USERS.—For purposes of paragraph (1), the number

of monthly active users of a wire or electronic com-

munication service shall be calculated by taking the

average of the number of individual users or sub-

scribers of the service that are active per month in

any calendar year.

‘‘(b) TRAP AND TRACE CAPABILITY.—

‘‘(1) IN GENERAL.—A provider of wire or elec-

tronic communication service that had more than

1,000,000 monthly users in the United States in

January 2016 or any month thereafter shall ensure

that the provider has the ability to provide the infor-

mation described in paragraphs (4) and (7) of sec-

tion 3127 directly to law enforcement agencies in an

intelligible format unobtrusively and in a manner de-

signed to uphold the nondisclosure obligations under

section 3123(d)(2).

‘‘(2) CALCULATION OF MONTHLY ACTIVE

USERS.—For purposes of paragraph (1), the number

of monthly active users of a wire or electronic com-

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munication service shall be calculated by taking the

average of the number of individual users or sub-

scribers of the service that are active per month in

any calendar year.

‘‘(c) COMPENSATION.—

‘‘(1) IN GENERAL.—Subject to paragraph (2), a

provider of wire or electronic communication service

that provides the information described in paragraph

(3), (4), or (7) of section 3127 directly to a law en-

forcement agency shall be compensated for reason-

able expenses directly incurred in providing the in-

formation.

‘‘(2) LIMITATION.—Reasonable expenses under

paragraph (1) may not exceed $150.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—

The table of sections for chapter 206 of title 18, United

States Code, is amended by adding at the end the fol-

lowing:

‘‘3128. Capability requirements.’’.

SEC. 402. DEFINING TECHNICAL ASSISTANCE.

Section

3127 of title

18, United States Code, is

amended—

(1) in paragraph (5), by striking ‘‘and’’ at the

end;

(2) in paragraph (6), by striking the period at

the end and inserting ‘‘; and’’; and

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(3) by adding at the end the following:

‘‘(7) the term ‘technical assistance’ includes—

‘‘(A) isolating all dialing, routing, address-

ing, and signaling information authorized to be

acquired;

‘‘(B) decrypting, decoding, or otherwise

providing in an intelligible format the dialing,

routing, addressing, and signaling information

authorized to be acquired, unless the inde-

pendent actions of an unaffiliated entity make

it technically impossible to do so; and

‘‘(C) delivering all dialing, routing, ad-

dressing, and signaling information authorized

to be acquired securely, reliably, and concur-

rently with its transmission.’’.

TITLE V—FISA AMENDMENTS

SEC.

501. ELECTRONIC SURVEILLANCE WITHIN THE

UNITED STATES FOR FOREIGN INTEL-

LIGENCE PURPOSES.

Title I of the Foreign Intelligence Surveillance Act

of 1978 (50 U.S.C. 1801 et seq.) is amended—

(1) in section 101 (50 U.S.C. 1801), by adding

at the end the following:

‘‘(q) ‘Technical assistance’ includes—

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‘‘(1) isolating all communications or informa-

tion authorized to be acquired;

‘‘(2) decrypting, decoding, or otherwise pro-

viding in an intelligible format the communications

or information authorized to be acquired, unless the

independent actions of an unaffiliated entity make it

technically impossible to do so; and

‘‘(3) delivering all communications or informa-

tion authorized to be acquired securely, reliably, and

concurrently with their transmission.’’; and

(2) in section

105(c)(2)(B), by striking

‘‘produce a minimum of interference with the serv-

ices that such carrier, landlord, custodian, or other

person is providing that target of electronic surveil-

lance’’ and inserting ‘‘in a manner designed to mini-

mize the possibility of alerting the target whose com-

munications are to be intercepted’’.

SEC.

502. PHYSICAL SEARCHES WITHIN THE UNITED

STATES FOR FOREIGN INTELLIGENCE PUR-

POSES.

Title III of the Foreign Intelligence Surveillance Act

of 1978 (50 U.S.C. 1821 et seq.) is amended—

(1) in section 301 (50 U.S.C. 1821), by adding

at the end the following:

‘‘(6) ‘Assistance’ includes—

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‘‘(A) isolating all information, material, or

property to be seized, reproduced, or altered;

‘‘(B) decrypting, decoding, or otherwise

providing in an intelligible format the informa-

tion, material, or property to be seized, repro-

duced, or altered, unless the independent ac-

tions of an unaffiliated entity make it tech-

nically impossible to do so; and

‘‘(C) providing technical support as nec-

essary to ensure effective execution of an order

under this title.’’; and

(2) in section

304(c)(2)(B)

(50 U.S.C.

1824(c)(2)(B)), by striking ‘‘produce a minimum of

interference with the services that such landlord,

custodian, or other person is providing the target of

the physical search’’ and inserting ‘‘in a manner de-

signed to minimize the possibility of alerting the tar-

get of the physical search’’.

SEC. 503. PEN REGISTER; TRAP AND TRACE.

Section 401 of the Foreign Intelligence Surveillance

Act of 1978 (50 U.S.C. 1841) is amended by adding at

the end the following:

‘‘(5) The term ‘technical assistance’ includes—

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‘‘(A) isolating all dialing, routing, address-

ing, and signaling information authorized to be

acquired;

‘‘(B) decrypting, decoding, or otherwise

providing in an intelligible format the dialing,

routing, addressing, and signaling information

authorized to be acquired, unless the inde-

pendent actions of an unaffiliated entity make

it technically impossible to do so; and

‘‘(C) delivering all dialing, routing, ad-

dressing, and signaling information authorized

to be acquired securely, reliably, and concur-

rently with its transmission.’’.

SEC. 504. BUSINESS RECORDS.

Section 501(k) of the Foreign Intelligence Surveil-

lance Act of 1978 (50 U.S.C. 1861(k)) is amended by add-

ing at the end the following:

‘‘(5) TECHNICAL ASSISTANCE.—The term ‘tech-

nical assistance’ includes—

‘‘(A) isolating the tangible things (includ-

ing call detail records) required to be produced;

‘‘(B) decrypting, decoding, or otherwise

providing in an intelligible format the tangible

things required to be produced, unless the inde-

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pendent actions of an unaffiliated entity make

it technically impossible to do so; and

‘‘(C) delivering all tangible things required

to be produced securely, reliably, and no later

than the date on which an order under this title

requires their production.’’.

SEC.

505. CERTAIN ACQUISITIONS INSIDE THE UNITED

STATES TARGETING UNITED STATES PER-

SONS OUTSIDE THE UNITED STATES.

Section 703 of the Foreign Intelligence Surveillance

Act of 1978 (50 U.S.C. 1881b) is amended by adding at

the end the following:

‘‘(h) ASSISTANCE DEFINED.— For purposes of this

section, the term ‘assistance’ includes—

‘‘(1) isolating all communications or informa-

tion authorized to be acquired;

‘‘(2) decrypting, decoding, or otherwise pro-

viding in an intelligible format the communications

or information authorized to be acquired, unless the

independent actions of an unaffiliated entity make it

technically impossible to do so;

‘‘(3) delivering the communications or informa-

tion authorized to be acquired securely, reliably, and

concurrently with their transmission; and

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‘‘(4) providing technical support as necessary to

ensure effective execution of an order under this sec-

tion.’’.

TITLE VI—PRIZE COMPETITION

SEC. 601. FINDINGS.

Congress finds the following:

(1) The rapidly growing use of warrant-proof

encryption in everyday devices, platforms, and sys-

tems allows illegal actors engaged in dangerous

criminal activity—including child sexual abuse, ter-

rorism, and international narcotics trafficking—to

use encryption to shield their illicit activities from

authorities.

(2) Because of warrant-proof encryption, the

government often cannot obtain the electronic evi-

dence and intelligence necessary to investigate and

prosecute threats to public safety and national secu-

rity, even with a warrant or court order. This pro-

vides a

‘‘lawless space’’ that criminals, terrorists,

and other bad actors can exploit for their nefarious

ends.

(3) Many service providers, device manufactur-

ers, and application developers who use encryption

fail to implement technology that would allow the

government to obtain electronic evidence necessary

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to investigate and prosecute threats to public safety

and national security.

(4) The Fourth Amendment to the Constitution

of the United States strikes a balance between the

individual citizen’s reasonable expectation of privacy

on one hand, and on the other, the legitimate need

for the government to gain access to the most inti-

mate spaces in citizens’ lives in order to protect the

public from criminal actors.

(5) The Framers of the Constitution provided

specific barriers to government intrusion into the in-

dividual’s private, intimate space—namely, that the

government must show by probable cause that evi-

dence of a crime exists in that intimate space, and

must have a neutral magistrate, detached from the

law enforcement interest, approve law enforcement’s

request and issue a warrant.

(6) Once the government satisfies the burden of

showing probable cause to a neutral magistrate, the

government is entitled to search and seize evidence

of a crime in an individual’s private space.

(7) That careful balancing of interests estab-

lished by the Framers has continued to be calibrated

throughout the history of the United States as dif-

ferent challenges have arisen, including, most nota-

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bly, technological advances in daily life. For exam-

ple, Congress has imposed additional statutory re-

quirements that the government must meet and that

a judge must find satisfied before a court can au-

thorize interception of communications. But the in-

dividual’s right to privacy has never been absolute.

(8) If not addressed, criminal anonymity actu-

ated by end-to-end encryption technology will con-

tinue to pose a serious risk to the public.

(9) Nevertheless, advances in technology con-

tinue without due consideration of issues of lawful

access.

(10) Moreover, very little, if any, resources

from the private sector or from educational and re-

search institutions are devoted to finding techno-

logical solutions to providing lawful access within

different encrypted technological platforms.

(11) More resources should be devoted to

incentivizing the best minds in the United States to

research the issues described in this section and de-

cide how to best provide the most secure products

and services to customers while also providing law

enforcement access to information the government

needs to investigate criminals seeking to do the pub-

lic harm and to protect national security.

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SEC. 602. DEFINITIONS.

In this title:

(1) APPLICANT.—The term ‘‘applicant’’ means

an individual, group of individuals, organization,

nonprofit, or university that applies to participate in

the prize competition under this title.

(2) APPROPRIATE CONGRESSIONAL COMMIT-

TEES.—The term ‘‘appropriate congressional com-

mittees’’ means the Committee on the Judiciary of

the Senate and the Committee on the Judiciary of

the House of Representatives.

(3) ATTORNEY GENERAL.—Except as otherwise

provided, the term

‘‘Attorney General’’ means the

Attorney General, acting through the Director of the

National Institute of Justice.

(4) PRIZE.—The term ‘‘prize’’ means a cash

prize.

(5) PRIZE COMPETITION.—The term

‘‘prize

competition’’ means the prize competition estab-

lished under section 603.

SEC. 603. PRIZE COMPETITION.

(a) ESTABLISHMENT.—Not later than 180 days after

the date of enactment of this Act, the Attorney General

shall, subject to the availability of funds appropriated

under this title, establish in accordance with section 24

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of the Stevenson-Wydler Technology Innovation Act of

1980 (15 U.S.C. 3719) a prize competition—

(1) to incentivize and encourage research and

innovation into solutions providing law enforcement

access to encrypted data pursuant to legal process;

and

(2) to award 1 or more prizes, not later than

1 year after the establishment of the prize competi-

tion, for technological solutions that provide law en-

forcement access to encrypted data pursuant to legal

process.

(b) REQUIREMENTS.—Technological solutions de-

scribed in subsection (a)(2) shall include—

(1) providing maximum security for the device,

platform, or system, consistent with the lawful ac-

cess solution, to reduce the opportunity for unlawful

hacking; and

(2) reducing or eliminating broad surveillance

capabilities not targeted at specified facilities or in-

dividuals pursuant to a warrant or order within the

lawful access solution.

(1) IN GENERAL.—To be eligible to win a prize

under the prize competition, an applicant—

(A) shall have complied with—

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(i) the requirements of the competi-

tion as described in the announcement for

the competition; and

(ii) subsections (g), (h), and (i) of sec-

tion

24 of the Stevenson-Wydler Tech-

nology Innovation Act of 1980 (15 U.S.C.

3719) (relating to eligibility);

(B) in the case of a private entity, shall be

incorporated in the United States and maintain

a primary place of business in the United

States; and

participating singly or in a group, shall be a cit-

izen of, or an alien lawfully admitted for perma-

nent residence in, the United States.

(2) EXCLUSIONS.—The following entities and

individuals shall not be eligible to win a prize under

the prize competition:

(A) A Federal entity.

(B) A Federal employee acting within the

scope of employment.

(d) PRIORITIZATION.—In selecting the winner or win-

ners of the prize competition, the Attorney General shall

give priority to projects that—

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(1) incorporate a robust proof of concept model

demonstrating the feasibility of the proposed tech-

nology achieving the intended goals of the competi-

tion as described in paragraph (a); and

(2) include a strategy, submitted with the appli-

cation or proposal, to move the new technology,

hardware, or other processes to market-scale deploy-

ment.

SEC. 604. IMPLEMENTATION.

(a) DUTIES.—In implementing the prize competition,

the Attorney General shall—

(1) advertise the prize competition;

(2) solicit participants;

(3) use amounts made available under section

607(a)—

(A) to administer the prize competition;

and

(B) to award 1 or more prizes;

(4) develop criteria for the selection of winners;

(5) select judges under section

605 based on

criteria developed by the Attorney General;

(6) announce, and award a prize to, 1 or more

winners;

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(7) protect against unauthorized use or disclo-

sure of any trade secret or confidential business in-

formation of a participant; and

(8) promulgate any rules and regulations nec-

essary to carry out this title, including rules and

regulations for submitting and reviewing applica-

tions.

(b) AWARD.—

(1) RECOMMENDATION BY JUDGES.—After con-

ducting a thorough review of each of the applicant

submissions for the prize competition, the judges ap-

pointed under section 605 shall—

(A) submit in writing to the Attorney Gen-

eral a recommendation for an award to 1 or

more winners of the prize competition; or

(B) if the judges determine that none of

the applicant submissions merit an award, sub-

mit in writing to the Attorney General a rec-

ommendation that no applicant be awarded a

prize, including a detailed explanation stating

the reasons why no applicant merits an award.

(2) SELECTION BY ATTORNEY GENERAL.—

(A) IN GENERAL.—Not later than 1 year

after the date on which the Attorney General

establishes the prize competition, and after re-

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viewing the recommendation submitted under

paragraph (1), the Attorney General shall select

1 or more winners of the prize competition and

award a prize to each winner.

(B) RECOMMENDATION OF NO PRIZE.—If

the judges recommend under paragraph (1)(B)

that no applicant be awarded a prize, the Attor-

ney General may—

(i) select

1 or more award winners,

notwithstanding the recommendation of

the judges, and award a prize to each win-

ner; or

(ii) award no prize to any applicant.

Attorney General determines not to award a

prize to any applicant under subparagraph

(B)(ii), the Attorney General shall notify the

appropriate congressional committees not later

than 90 days after that determination.

(1) ADMINISTRATION BY THIRD PARTY ORGANI-

ZATION.—

(A) IN GENERAL.—The Attorney General

may enter into an agreement, including a grant,

contract, or cooperative agreement, with a non-

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profit or for-profit third party organization,

under which the third-party organization ad-

ministers the prize competition.

(B) CONSULTATION; DIVISION OF AUTHOR-

ITY.—If the Attorney General enters into a con-

tract with a third party organization under sub-

paragraph

(A), the third party organization

shall consult with the Attorney General on, and

the Attorney General shall have the authority to

make the final decision with respect to—

(i) the development of criteria for the

selection of prize competition winners

under subsection (a)(4); and

(ii) the selection of judges under sec-

tion 605.

(2) NON-FEDERAL FUNDS.—The Attorney Gen-

eral may solicit and receive non-Federal funds to ad-

minister the prize competition and award a prize.

SEC. 605. JUDGES.

(a) APPOINTMENT.— The Attorney General shall ap-

point not fewer than 3 judges who shall, except as pro-

vided in section 604(b)(1)(B), recommend 1 or more win-

ners of the prize competition.

(b) QUALIFICATIONS.—Each judge appointed under

subsection (a) shall—

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(1) have subject matter expertise in cryptology

and encryption-related technology, including relevant

devices, platforms, and systems;

(2) have an understanding of—

(A) protections afforded to United States

citizens by the Constitution of the United

States against unreasonable searches and sei-

zures by the government; and

(B) the legal authorities that permit the

government to search and seize the personal ef-

fects of United States citizens, particularly with

respect to—

(i) the search and seizure of individ-

uals’ data from technological devices, plat-

forms, or systems; and

(ii) the interception of communica-

tions over technological devices, platforms,

or systems; and

(3) have experience with law enforcement capa-

bilities for lawful access to data and limitations on

lawful access to data across various technological de-

vices, platforms, and systems that use encrypted

technology.

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SEC. 606. REPORT TO CONGRESS.

Not later than 90 days after the date on which the

Attorney General awards 1 or more prizes under section

604(b)(2), the Attorney General shall submit to the appro-

priate congressional committees a report on the prize com-

petition that includes—

(1) a statement by the Attorney General that

describes the activities carried out by the Attorney

General with respect to the duties described in sec-

tion 604(a);

(2) if the Attorney General has entered into an

agreement with a third party organization under

section 604(c)(1), a statement by the Attorney Gen-

eral that describes the activities carried out by the

third party organization with respect to the duties

described in section 604(c); and

(3) a statement by the Attorney General ex-

plaining the basis on which each winner of the prize

competition was selected.

SEC. 607. AUTHORIZATION OF APPROPRIATIONS.

(a) AUTHORIZATION.—

(1) IN GENERAL.—There are authorized to be

appropriated such sums as may be necessary, not to

exceed $50,000,000, to carry out this title.

(2) MINIMIZATION OF ADMINISTRATIVE EX-

PENSES.—The Attorney General shall make all rea-

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sonable efforts to control the administrative ex-

penses of the prize competition so that the majority

of the amounts made available under paragraph (1)

are used for the prize or prizes awarded to the win-

ner or winners of the prize competition under section

603.

(b) APPROVAL OF CERTAIN AWARDS.—The value of

a prize awarded to a winner of the prize competition under

section 603 may not exceed $1,000,000 without the ap-

proval of the Attorney General or the Director of the Na-

tional Institute of Justice.

pointed under section 605 shall serve without pay, but

may be reimbursed for actual and necessary traveling and

subsistence expenses.

SEC. 608. TERMINATION OF AUTHORITY.

The prize competition and all authority provided

under this title shall terminate on December 31, 2022.

TITLE VII—LAWFUL ACCESS

TRAINING

SEC. 701. LAWFUL ACCESS TRAINING PROGRAM.

(a) DEFINITIONS.—In this section:

(1) COOPERATIVE AGREEMENT.—The term ‘‘co-

operative agreement’’ means a legal instrument of fi-

nancial assistance between a Federal awarding agen-

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cy or pass-through entity and a non-Federal entity,

consistent with sections 6302 and 6305 of title 31,

United States Code.

(2) PROVIDER.—The term ‘‘provider’’ means—

(A) a device manufacturer, an operating

system provider, and a provider of remote com-

puting service, as those terms are defined in

section 3119 of title 18, United States Code, as

added by title I of this Act; and

(B) a provider of electronic communication

service, as defined in section 2510 of title 18,

United States Code.

(3) TRAINING PROGRAM.—The term ‘‘Training

Program’’ means the lawful access training and as-

sistance program established under subsection (b).

(b) ESTABLISHMENT.—The Attorney General shall

establish a lawful access training and real-time assistance

program that draws upon the resources of the National

Domestic Communications Center (commonly known as

the ‘‘NDCAC’’) and other relevant components of the De-

partment of Justice as appropriate.

(1) TRAINING.—

(A) IN GENERAL.—The primary purpose of

the Training Program shall be to provide train-

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ing and assistance for law enforcement per-

sonnel, with a particular emphasis on State and

local personnel, on relevant technology and

communications platforms, including how to

submit appropriately tailored applications for

digital evidence, consistent with existing legal

requirements and protections for privacy and

civil liberties.

(B) CONSULTATION.—The Attorney Gen-

eral may consult with providers regarding the

training and assistance under subparagraph

(A).

under the Training Program shall include—

(i) designing and providing training to

distribute knowledge and expertise, includ-

ing—

(I) consulting with the most

qualified experts in law enforcement

and the technology industry to assist

in the development of all Training

Program materials;

(II) identifying current effective

law enforcement training programs

and tools;

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(III) identifying gaps in current

law enforcement training programs

and tools;

(IV) producing and maintaining

training materials and curricula that

will be used in classroom training ses-

sions as well as for distribution to law

enforcement agencies for reference;

(V) in coordination with pro-

viders, delivering information and

guidance on accessing digital evidence

from specific providers to improve

outcomes with regard to particular

technology devices, platforms, or sys-

tems; and

(VI) establishing and promoting

the use of a consistent set of clear

standards for securing and minimizing

data collected by law enforcement;

(ii) serving as a centralized repository

knowledge and expertise about provider

systems and procedures for submitting re-

quests for data;

(iii) coordinating with Federal, State,

and international training programs, as

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well as any private-sector and nonprofit

initiatives;

(iv) building and maintaining analytic

and forensic tools to assist law enforce-

ment agencies in interpreting data that has

been obtained from service providers and

devices;

(v) hiring and employing technical

specialists that can help develop and main-

tain analytic and forensic tools;

(vi) conducting relevant research and

analysis to identify the greatest challenges

with respect to the ability of law enforce-

ment agencies to access and analyze digital

evidence; and

(vii) providing a call center for law en-

forcement officials to seek advice and as-

sistance regarding accessing and analyzing

digital evidence.

(2)

OTHER FUNCTIONS.—In carrying out the

Training Program, the Attorney General shall de-

velop and coordinate additional functions to improve

lawful access to digital evidence, including the fol-

lowing:

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(A) IDENTIFYING AND PROVIDING RE-

SOURCES.—The Attorney General shall—

(i) work with the Office of Justice

Programs to identify grants and other

grant-making bodies to support law en-

forcement access to digital evidence; and

(ii) include programs in the training

activities that inform law enforcement

agencies of the grants described in clause

(i) and other resources that support—

(I) training programs;

(II) development and distribution

of analytical tools; and

(III) maintenance of crime labs.

(B) DEVELOPMENT OF AUTHENTICATION

SYSTEM.—The Attorney General shall work

with providers and law enforcement agencies

from Federal, State, and local systems to iden-

tify options for, and develop, a system for

verifying that an individual requesting data

from a provider is a law enforcement official en-

titled to such access pursuant to lawful author-

ity.

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FORTS.—The Attorney General shall coordinate

with international partners to—

(i) help set baseline standards and

practices to lawfully access digital evi-

dence;

(ii) promote standards to ensure the

protection of privacy and civil liberties, and

to the extent practical and helpful, har-

monize efforts across borders.

(D) DEVELOPING MASTER DATABASE.—

The Attorney General shall—

(i) develop a master database to track

investigations in the United States in

which a law enforcement agency secured

the legal authority to access digital data

but otherwise cannot gain access to that

data in an intelligible format due to

encryption; and

(ii) through the training activities de-

scribed in paragraph (1), encourage the ro-

bust participation from State and local au-

thorities that is necessary to populate the

database described in clause (i) of this sub-

paragraph.

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(E) OTHER ACTIVITIES.—The Attorney

General, in carrying out the Training Program,

shall provide any additional activities and serv-

ices determined appropriate by the Attorney

General.

(d) FUNDING.—

(1) AUTHORIZATION OF APPROPRIATIONS.—

There is authorized to be appropriated to the Attor-

ney General to carry out this section $50,000,000

for fiscal year

2020, which shall remain available

until expended.

(2) LIMITATION.—Not more than 5 percent of

the amount appropriated under paragraph (1) may

be used to carry out activities under subsection

(e)(2).

(e) COOPERATIVE AGREEMENT.—

(1) ASSISTANCE.—The Attorney General may

enter into a cooperative agreement with providers or

other persons to—

(A) provide regular training to law enforce-

ment agencies through the Training Program

on information that is potentially available from

devices, operating systems, remote computing

services, or electronic communication services,

and on provider policies, in order to facilitate

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tailored and specific applications from law en-

forcement agencies;

(B) maintain up-to-date and comprehen-

sive guidance for law enforcement agencies re-

garding accessing information from providers;

to—

(i) receive law enforcement requests

for data; and

(ii) provide dated, electronic confirma-

tion of receipt of a request described in

clause (i); and

(D) assist with other tasks as determined

necessary by the NDCAC.

(2) DONATIONS.—

(A) IN GENERAL.—The NDCAC may so-

licit and accept donations for the Training Pro-

gram from providers or other persons to be

used to carry out this section.

(B) PRIVATE FUNDING REQUIREMENT.—

The NDCAC may not carry out the Training

Program during a fiscal year, including fiscal

year 2020, unless and until the NDCAC has re-

ceived funding for that fiscal year under sub-

paragraph

(A) in an amount equal to the

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amount authorized to be appropriated for fiscal

year 2020 under subsection (d)(1).

(f) REPORT.—

(1) IN GENERAL.—Not later than 1 year after

the effective date in section

801 of this Act, and

once thereafter not later than 2 years after that ef-

fective date, the NDCAC shall submit to the Com-

mittee on the Judiciary of the Senate and the Com-

mittee on the Judiciary of the House of Representa-

tives a report on the Training Program.

(2) CONTENTS.— The report submitted under

paragraph (1) shall include—

(A) ongoing efforts to identify and respond

to gaps in training and distribution of technical

tools;

(B) the state of cooperation with providers;

(D) any new policies and best practices

being seriously considered or adopted; and

(E) funding contributed by private individ-

uals, organizations, and entities.

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