Burr-Feinstein Encryption Bill Discussion Draft

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data information communication court order service covered entity

<p>BAG16392 
l l 4TH CONGRESS
2D SESSION
Discussion Draft 
S.L.C. 
s. 
To require the provision of data in an intelligible format to a government
pursuant to a court order, and for other purposes. 
IN THE SENATE OF THE UNITED STATES 
introdnced the following bill; which was read twice 
and referred to the Committee on 
-------~ 
A BILL 
To reqmre the provision of data in an intelligible format 
to a government pursuant 
to a court order, 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 "Compliance with Court 
5 Orders Act of 2016". 
6 SEC. 2. SENSE OF CONGRESS. 
7 
It is the sense of Congress that-
8 
( 1) no person or entity is above the law; 
Discussion 
Draft 
S.L.C.
2
l 
(2) economic growth
prosperity
security,
sta-
2 
bility, and liberty require 
adherence 
to the rule of 
3 
law; 
4 
(3)
the Constitution 
and laws of the United
5 
States provide for the safety, security,
and civil lib-
6 
erties of all l: UnitedStates persons and the protec-
7 
tions and obligations of these laws apply to all per-
8 
sons within UUnitedStates jurisdiction;
9 
( 4) all providers of communications services and
10 
products
(including software) should protect the pri-
11 
vacy of United States persons through implementa-
12 
tion of appropriate data security and still respect the 
13 
rule of law and comply with all legal requirements 
14 
and court orders; 
15 
( (5) to uphold both the rule of law and protect
16 
the interests
and security of the United States, all 
17 
persons receiving an authorized judicial order for in-
18 
formation or data mnst provide,e, in a timely manner. 
19 
responsive, intelligible information or data, or appro-
20 
priate technical assistance 
to obtain such informa-
21 
tion or clata; ancl 
22 
( (6)covered entities must provide responsive, in-
23 
telligible
information or data, or appropriate 
tech-
24 
25 
nical assistance to a government pursuant 
order. 
a court 
BAG16392
Discussion Draft 
S.L.C. 
3 
1 SEC. 3. REQUIREMENT FOR PROVIDING DATA IN AN INTEL-
2 
LIGIBLE 
FORMAT UPON RECEIPT 
OF A 
3 
COURT ORDER. 
4 
(a) REQUIREMENT.„
5 
(1) IN GENERAL.„ Notwithstanding any other 
6 
provision of law and except as provided in paragraph 
7 
(2), a covered entity that receives a court order from 
8 
a government for information or data shall-
9 
(A) provide such information or data to 
10 
such government in an intelligible format; or 
11 
(B) provide such technical assistance as is 
12 
necessary to obtain such information or data in 
13 
an intelligible format or to achieve the purpose 
14 
of the court order. 
15 
(2) SCOPE OF REQUIREMENT.„ Acovered enti-
16 
ty that receives a court order referred to in para-
17 
graph (l)(A) shall be responsible only for providing 
18 
data in an intelligible format if such data has been 
19 
made unintelligible by a feature, product, or service 
20 
owned, controlled, created, or provided, by the cov-
21 
ered entity or by a third party on behalf of the cov-
22 
ered entity. 
23 
(3) COMPENSATIONFOR TECHNICALASSIST-
24 
ANCE.„ A covered entity that receives a court order 
25 
from a government as described in paragraph 
( 1) 
26 
and furnishes technical assistance under subpara-
Discussion 
Draft 
S.L.C. 
4 
1 
graph (B) of such paragraph pursuant 
to such order 
2 
shall be compensated
for such costs as are reason-
3 
ably necessary and which have been directly incurred 
4 
iu providing such technical assistance or such data 
5 
in an intelligible format. 
6 
(b) DESIGN LIMITATIONS.„ Nothing in this Act may 
7 be construed to anthorize any government officer to re-
8 quire or prohibit any specific design or operating system 
9 to be adopted by any covered entity. 
10 
(c) LICENSE DISTRIBUTORS.„ 
provider of remote 
11 computing service or electronic communication service to 
12 the public that distributes 
licenses for products, services, 
13 applications, or software of or by a covered entity shall 
14 ensure that any such products, services, applications, or 
15 software distributed by such person be capable of com-
16 plying with subsection (a). 
17 SEC. 4. DEFINITIONS. 
In this Act: 
18 
19 
20 
(1) COMMUNICATION 
IDENTIFYING 
INFORMA-
TION.„ The term "communication 
identifying infor-
t'"1 
21 
mation" means dialing, 
routing, 
addressing, 
sig-
22 
naling, switching, processing, transmitting, 
or other 
23 
information that-
24 
(A) does uot constitute 
the contents of a 
25 
communication: 
BAG16392
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3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
Discussion Draft 
S.L.C. 
5
(B) identifies or assists m the identifica-
tion of the origin, direction, destination, elate, 
time, duration, 
termination, or status of each 
communication 
generated, 
received, or con-
trolled by a user; and 
(C) includes the following information or 
the equivalent function thereof: 
(i) Public and local source and des-
tination addressing, including-
(I)
the local network and public 
Internet 
Protocol addresses or any 
similar or successor protocol; and 
(II) addressing information that 
may be dynamically or privately as-
signed, including port numbers or any 
successor addressing method. 
(ii) Addresses or other information 
that uniquely identifies the equipment, fa-
cility, or service used to access a provider 
or network by each party to the commu-
nication. 
(iii) Service addresses and identifiers 
generated or received by each party to the 
communication. 
BAG16392
Discussion 
Draft 
S.L.C. 
6
1 
(iv) Information 
identifying quantity 
2 
or quality of the communication, 
including 
3 
packet size, quality of service information, 
4 
or other information from which the size or 
5 
priority 
of 
the 
communication 
can be 
6 
ascertained. 
7 
(v) Specification of the time zone as 
8 
an offset from Coordinated 
Universal Time 
9 
(UTC). 
10 
(2) COMMUNICATIONS.„ The 
term "communica-
11 
tions" has the same meaning as the terms "wire 
12 
communication", 
"oral communication", 
and "elec- 
13 
tronic communication" 
in section 2510 of title 18, 
14 
United States Code. 
15 
(3) COURTORDER.„ The
term "court order" 
16 
means any order or warrant 
issued by a court of 
17 
competent jurisdiction. 
18 
(4) COVERED ENTITY.„ The
term 
"covered en-
19 
tity" means a device manufacturer, 
a software man-
20 
ufacturer, an electronic communication 
service, a re- 
21 
mote computing service, a provider of wire or elec- 
22 
tronic communication service, a provider of a remote 
23 
computing 
service, 
or any person who provides a 
24 
product or method to facilitate a communication 
or 
25 
the processing or storage of data. 
Discussion Draft 
S.L.C. 
7 
1 
(5) DATA.„ The term "data" includes-
2 
(A) communications and any information 
3 
concerning the identity of the parties to such 
4 
communications or the existence, substance, 
5 
purport, or meaning of such communications; 
6 
(B) information stored remotely or on a 
7 
device provided, designed, licensed, or manufac-
8 
tured by a covered entity; 
9 
( C) communication identifying information; 
10 
and 
11 
(D) information identifying a specific de-
12 
vice. 
13 
( 6) ELECTRONIC COMMUNICATION SERVICE.„
SERVICE.-
14 
The term "electronic communication service" has 
15 
the meaning given such term in section 2510 of title 
16 
18, United States Code. 
17 
(7) FEATt;RE.-The 
term "feature" means a 
18 
property or function of a device or software applica-
19 
tion. 
20 
(8) GOVERNMENT.„ The term "government" 
21 
means the Government of the United States and the 
22 
government of the District of Columbia, or any com-
23 
monwealth, territory, or possession of the United 
24 
States, of an Indian tribe, or of any State or polit-
25 
ical subdivision thereof. 
BAG16392
Discussion Draft 
S.L.C. 
8 
1 
(9) INDIAN TRIBE.„ The term "Indian tribe" 
2 
has the meaning given such term in section 4 of the 
3 
Indian Self-Determination and Education Assistance 
4 
Act (25 U.S.C. 450b). 
5 
(10) INTELLIGIBLE.„ The term "intelligible", 
6 
with respect to information or data, mcans-
7 
(A) the information or data has never been 
8 
encrypted, enciphered, encoded, modulated, or 
9 
obfuscated; or 
10 
(B) 
the information or data has been 
11 
encrypted, enciphered, encoded, modulated, or 
12 
obfuscated and then decrypted, deciphered, de-
13 
coded, demodulated, or deobfuscated 
to its 
14 
original form. 
15 
(11) REMOTE COMPUTING SERVICE.„ The term 
16 
"remote computing service" has the meaning given 
17 
such term in section 2711 of title 18, United States 
18 
Code. 
19 
(12) 
TECHNICAL ASSISTANCE.„ The 
term 
20 
"technical assistance", with respect to a covered en-
21 
tity that receives a court order pursuant to a provi-
22 
sion of law for information or data described in sec-
23 
tion 3(a)(l), includes-
24 
(A) isolating such information or data; 
BAG16392
1 
2 
3 
4 
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6 
7 
8 
9 
10 
11 
Discussion Draft 
S.L.C. 
9 
(B) rendering such information or data in 
an intelligible format if the information or data 
has been made unintelligible by a feature, prod-
uct, or service owned, controlled, created, or 
provided by the covered entity or by a third 
party on behalf of the covered entity; and 
(C) delivering such information or data-
(i) concurrently ,vith its transmission; 
or 
(ii) expeditiously, if stored by a cov-
ered entity or on a device. 
</p>