Criminal surveillance orders

(a) In general Part II of title 18, United States Code, is amended by inserting after chapter 206 the following: 206A Criminal surveillance orders Sec. 3131. Definitions. 3132. Criminal surveillance orders. 3133. Request for unsealing or challenging redactions. 3131. Definitions In this chapter: (1) Application The term application — (A) means an application for a criminal surveillance order; and (B) includes all supporting affidavits and exhibits. (2) Pen register; trap and trace device The terms pen register, and trap and trace device have the meanings given the terms in section 3127. (3) Criminal surveillance order The term criminal surveillance order means— (A) an order authorizing or approving the interception of a wire communication, oral communication, or electronic communication under chapter 119 or under an equivalent State law; (B) an order authorizing or approving the installation and use of a pen register or a trap and trace device under chapter 206 or under an equivalent State law; (C) an order for the installation of a mobile tracking device under section 3117; (D) an order for disclosure under chapter 121; (E) an order for a delay of notification or nondisclosure under section 2705; (F) a search or seizure warrant issued using the procedures described in the Federal Rules of Criminal Procedure or in the case of a State or Tribal court, issued using State or Tribal warrant procedures; (G) in the case of a court-martial or other proceeding under chapter 47 of title 10 (Uniform Code of Military Justice), a warrant or order issued under section 846 of that title; (H) a warrant under section 3103a; (I) an order under section 1651 of title 28; (J) an order for third party assistance under section 2518(4) or section 3124; or (K) an order to enforce the assistance capability and capacity requirements under section 2522. (4) Electronic communication; oral communication; wire communication The terms electronic communication, oral communication, and wire communication have the meanings given the terms in section 2510. (5) Indian Tribe The term Indian Tribe has the meaning given such term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130). (6) Inventory The term inventory means the inventory and other materials— (A) returned to a Federal, State, or Tribal court or a court-martial or other proceeding under chapter 47 of title 10 (Uniform Code of Military Justice) in connection with the execution of a criminal surveillance order (including under paragraph (1)(D) or (2)(B) of rule 41(f) of the Federal Rules of Criminal Procedure, under comparable State warrant procedures, or under procedures applicable to a court-martial or other proceeding under chapter 47 of title 10); or (B) provided to persons and other parties described in section 2518(8)(d). (7) State The term State means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the United States Virgin Islands. (8) Substantially prevails The term substantially prevails has the meaning given the term in section 552(a)(4)(E) of title 5. 3132. Criminal surveillance orders (a) Limitation on sealing (1) In general Except as provided in paragraph (2), a court may not seal a criminal surveillance order, application, or inventory for a period that extends after the later of— (A) date the order is executed; or (B) the date on which the authorized surveillance ends. (2) Exceptions (A) In general An applicant for a criminal surveillance order may file a written request for the court to seal the criminal surveillance order, the application, or the inventory for a period not to exceed 180 days after the later of the date the order is executed or the date on which the authorized surveillance ends, which request the court shall grant if the applicant certifies that there is reason to believe that failure to seal will have an adverse result described in subparagraph (B). (B) Adverse result (i) In general An adverse result described in this subparagraph is— (I) endangering the life or physical safety of an individual; (II) flight from prosecution; (III) destruction of or tampering with evidence; (IV) intimidation of potential witnesses; or (V) otherwise seriously jeopardizing the investigation to which the criminal surveillance order relates or unduly delaying a trial resulting from the investigation. (ii) Other requirements (I) In general When certifying an adverse result, the applicant shall certify that there is reason to believe that the person whose information is targeted by the order does not know— (aa) about the investigation; and (bb) that they are a target or person of interest in the investigation. (II) Failure to certify If the applicant does not satisfy the requirements of subclause (I)— (aa) the applicant must follow the higher standard of judicial review required by subparagraph (C)(ii); and (bb) the failure to satisfy such requirements shall be disclosed in both the criminal surveillance order and any preclusion of notice order issued for that criminal surveillance order. (iii) Review by court The court may, in its discretion, require the government to provide the factual basis for the certification described in clause (i) and may review that factual basis for sufficiency. (iv) Notification (I) In general For any criminal surveillance order, application, or inventory that is sealed at the Government’s request, the Government shall promptly notify the court if the Government no longer has reason to believe that removal of a seal will have an adverse result described in this subparagraph. (II) Unsealing After being notified by the Government under subclause (I), the court shall unseal the criminal surveillance order, application, or inventory. (C) Extensions (i) In general The court may grant a single extension of a sealing order for up to 180 days, upon the applicant’s motion, based on a renewed certification that failure to extend the sealing period will have an adverse result described in subparagraph (B). (ii) Heightened judicial review of subsequent extensions (I) In general For any extension after an extension under clause (i), the court may grant an extension of a sealing order for up to 180 days, upon the applicant’s motion, if the applicant— (aa) demonstrates— (AA) a particularized showing that failure to extend the sealing period will have an adverse result described in subparagraph (B); and (BB) a particularized showing that the adverse result would not be avoided by redaction of specified words, phrases, or passages in the criminal surveillance order, application, or inventory; and (bb) details— (AA) the nature of the investigation; (BB) the suspected crimes; (CC) the name of the target; and (DD) specific facts that substantiate the need for the extension. (II) Redacted documents (aa) In general If the court determines that an applicant has met the requirements of subitem (AA) of subclause (I)(aa), but not the requirements of subitem (BB) of subclause (I)(aa), the court shall order the applicant to submit proposed redactions to each sealed document. (bb) Disposition After considering the proposed redactions of the applicant, if any, the court may order the applicant to refile 1 or more sealed documents with such redactions as the court finds appropriate, direct the clerk to unseal the entirety of 1 or more sealed documents, or order that 1 or more sealed documents remain under seal. (D) Sealing of rejected applications and unexecuted criminal surveillance orders A court may, pursuant to subparagraph (A), seal an unexecuted criminal surveillance order, or a rejected application. (E) Challenge of adverse result certification or extension (i) In general Any person seeking to unseal a surveillance order, application, or inventory may challenge— (I) a certification of the adverse result under this paragraph; or (II) the particularized showings and detailed information necessary for a second and subsequent extension. (ii) Heightened standard If an order under this paragraph is issued earlier than 1 year before the date on which a challenge under clause (i) is made, the requirements of subparagraph (C)(ii) shall apply to a warrant or order sealed in accordance with chapter 206A. (iii) Costs If a person substantially prevails in a challenge under this subparagraph, the court shall order the applicant for the criminal surveillance order at issue to pay the litigation costs of the person (including reasonable attorney's fees). (b) Docketing and publication of criminal surveillance orders, applications, inventories, and associated docket records (1) Docket records Except as provided in paragraph (2), regardless of whether a court seals a criminal surveillance order or application under this section, the public docket record for any criminal surveillance case shall— (A) be made available as an open Government data asset and under an open license, as such terms are defined in section 3502 of title 44, and in a manner that facilitates downloading docket records in bulk, in accordance with rules promulgated by the Judicial Conference of the United States, after consultation with the National Institute of Standards and Technology, the Administrator of General Services, the Electronic Public Access Public User Group, private entities offering electronic case management software, the National Center for State Courts, and the National American Indian Court Judges Association, on the website of the court; and (B) include, at a minimum— (i) the date and time the application was filed, the order was entered, and the warrant was returned to the court, where applicable; (ii) the type of order, including— (I) the statutory authority under which the order was issued; (II) the type of crime under investigation; (III) the investigating agency; (IV) the duration of the requested surveillance if any; (V) whether sealing and deferred notice were requested, if so for how long; (VI) whether an order for third party assistance was requested; and (VII) disposition by the court, whether granted, modified, or denied; (iii) an index describing any subsequent filings or orders related to the case; (iv) the unique case number in accordance with paragraph (3); and (v) the date on which the seal will expire (unless extended pursuant to subsection (a)(2)(C)). (2) Showing of adverse result If an applicant in a sealed case demonstrates that public disclosure of any docket item listed in paragraph (1)(B)(ii) will have an adverse result described in subsection (a)(2)(B), the court may direct the clerk to withhold that item from the public docket record until the sealing order expires. (3) Case number and caption (A) In general A court shall assign for each application— (i) a unique case number for every identified target, including for each unique street address, parcel, person, phone number, device, or account targeted; and (ii) a case caption providing only generic information about the type of order sought and the target of the order. (B) Requirements A court shall assign a case number and case caption under subparagraph (A) in accordance with rules promulgated by the Judicial Conference of the United States, in consultation with the Electronic Public Access Public User Group, or in the case of a State court, in accordance with rules promulgated by the highest court of the State, and in the case of a Tribal court, in accordance with rules promulgated by the highest court of the Indian Tribe. (4) Compliance with the Rehabilitation Act of 1973 Each criminal surveillance order, application, inventory, and public docket record for any criminal surveillance case required under this subsection shall be published in a form that complies with section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d). (5) Nondisclosure orders When applying for an order for nondisclosure under section 2705, to prevent the disclosure of a subpoena— (A) the applicant for the order shall include a copy of the subpoena; and (B) the court shall docket the subpoena as part of the application for the order. (6) Automatic unsealing and notification The court shall employ a technical mechanism to automatically— (A) unseal criminal surveillance orders not later than the end of the next business day after the seal expires; and (B) provide notice, 10 business days before scheduled unsealing, to the law enforcement agency that filed the application for the criminal surveillance order. (c) Filing An application and the inventory shall be filed electronically. 3133. Request for unsealing or challenging redactions (a) In general Any person may submit a request to a court to— (1) unseal an application for a criminal surveillance order, a criminal surveillance order, or an inventory; or (2) challenge a redaction under section 3132(a)(2)(C)(ii)(II). (b) Form A request described in subsection (a) may be submitted as part of— (1) the particular criminal surveillance matter, including as a motion to unseal; or (2) as a stand-alone, separate case. (c) Multiple applications and orders unsealed A request described in subsection (a) may include more than 1 application for a criminal surveillance order, criminal surveillance order, or an inventory.. (b) Technical and conforming amendments (1) In general Title 18, United States Code, is amended— (A) in section 2518(8)— (i) by striking paragraph (b); and (ii) by redesignating paragraphs (c) and (d) as subparagraphs (b) and (c), respectively; (B) in section 3123, by striking subsection (d); and (C) in section 3103a(b)(1)— (i) by striking 2705 and inserting 3132); and (ii) by striking trial) and inserting trial. (2) E-Government Act of 2002 (A) In general Section 205 of the E-Government Act of 2002 (44 U.S.C. 3501 note) is amended— (i) in subsection (a), by adding at the end the following: (8) Access to the substance of all applications for criminal surveillance orders, criminal surveillance orders, and inventories in a text searchable format in accordance with chapter 206A of title 18, United States Code.; and (ii) in subsection (c)— (I) by striking paragraph (2) and inserting the following: (2) Exceptions (A) In general Documents that are filed that are not otherwise available to the public, such as documents filed under seal, shall not be made available online. (B) Criminal surveillance orders Subparagraph (A) shall not apply to applications for criminal surveillance orders, criminal surveillance orders, and inventories that are publicly available in accordance with chapter 206A of title 18, United States Code.; and (II) in paragraph (3), by adding at the end the following: (D) The Supreme Court shall update the rules prescribed under subparagraph (A) to address personal information included in criminal surveillance orders, applications, and inventories that are made available to the public.. (3) Table of chapters The table of chapters for part II of title 18, United States Code, is amended by inserting after the item relating to chapter 206 the following: 206A. Criminal surveillance orders 3121. (c) Effective date (1) In general Except as provided in paragraphs (2) and (3), the amendments made by this section shall take effect on the date that is 2 years after the date of enactment of this Act. (2) Delayed applicability for certain State and Tribal courts (A) In general Subsections (b)(1)(A) and (c) of section 3132 of title 18, United States Code, as added by subsection (a) of this section, shall apply on and after the date that is 4 years after the date of enactment of this Act— (i) to a State or Tribal court that, on the date of enactment of this Act, does not offer electronic docketing or public online access to dockets; or (ii) any State or Tribal court that certifies that the court needs more time to comply with the requirements of those subsections. (3) Authority to delay electronic filing (A) Certification (i) Federal courts The application of subsection (c) of section 3132 of title 18, United States Code, as added by subsection (a) of this section, to Federal courts under paragraph (1) of this subsection shall be delayed for 1 year if the Director of the Administrative Office of the United States Courts certifies that the system used by Federal courts for electronic filing is not sufficiently secure. (ii) State and Tribal courts The application of subsection (c) of section 3132 of title 18, United States Code, as added by subsection (a) of this section, to a State or Tribal court under paragraph (1) or (2) of this subsection, as applicable, shall be delayed for 1 year if the chief judge of the highest court of the State or Tribe certifies that the system used by the State or Tribal court for electronic filing is not sufficiently secure. (B) Contents A certification under subparagraph (A) shall include an estimate of the date by which the electronic filing system of the applicable court will be sufficiently secure. (C) Renewal of delay The delay of the application of subsection (c) of section 3132 of title 18, United States Code, as added by subsection (a) of this section, to Federal courts or to a State or Tribal court may be delayed for 1 or more additional 1-year periods if the Director of the Administrative Office of the United States Courts or the chief judge of the highest court of the State or Tribe, respectively, submits an additional certification in accordance with subparagraphs (A) and (B). (D) Publication Any certification under this paragraph shall be— (i) made available on the website of the court system with respect to which the certification is submitted; and (ii) submitted to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives. (d) Applicability (1) Definitions In this subsection, the terms application, criminal surveillance order, and inventory have the meanings given such terms in section 3131 of title 18, United States Code, as added by subsection (a). (2) Application The amendments made by this section shall apply to— (A) any application filed or inventory returned on or after the date described in subsection (d); and (B) any criminal surveillance order entered on or after the date described in subsection (d). (3) Rule of construction regarding unsealing Nothing in the amendments made by this section shall be construed to prohibit a court from unsealing— (A) a criminal surveillance order entered or inventory returned before the date described in subsection (d); or (B) an application for a criminal surveillance order made before the date described in subsection (d). (4) Rule of construction regarding interpretation The amendments made by this section shall be liberally construed in favor of public access to documents, to the extent possible.