S1080-118

1. Short title This Act may be cited as the Cooper Davis Act.

2. Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations Part E of the Controlled Substances Act (21 U.S.C. 871 et seq.) is amended by adding at the end the following: In this section, the terms electronic communication service, electronic mail address, provider, remote computing service, and website have the meanings given those terms in section 2258E of title 18, United States Code. In order to reduce the proliferation of the unlawful sale, distribution, or manufacture (as applicable) of counterfeit controlled substances and certain controlled substances, a provider— shall, as soon as reasonably possible after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(A), take the actions described in subparagraph (B); may, after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(B), take the actions described in subparagraph (B); may, if the provider reasonably believes that any facts or circumstances described in paragraph (2)(A) exist, take the actions described in subparagraph (B); and shall, if a submission to the provider by a user, subscriber, or customer of the provider alleges facts or circumstances described in paragraph (2) and the provider upon review has a reasonable belief that the alleged facts or circumstances exist, take the actions described in subparagraph (B). The actions described in this subparagraph are— providing to the Drug Enforcement Administration the mailing address, telephone number, facsimile number, and electronic mailing address of, and individual point of contact for, such provider; and making a report of such facts or circumstances to the Drug Enforcement Administration. The facts or circumstances described in this subparagraph are any facts or circumstances that indicate a violation has occurred involving— the unlawful sale or distribution of— fentanyl; or methamphetamine; or the unlawful sale, distribution, or manufacture of a counterfeit controlled substance. The facts or circumstances described in this subparagraph are any facts or circumstances that indicate that a violation described in subparagraph (A) may be planned or imminent. In an effort to prevent future violations described in subsection (b)(2)(A), and to the extent the information is within the custody or control of a provider, the facts and circumstances included in each report under subsection (b)(1) may, at the sole discretion of the provider, except as provided in paragraph (2), include the following information: Information relating to the identity of any individual who has committed a violation or plans to commit a violation described in subsection (b)(2)(A), which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, uniform resource locator, payment information (excluding personally identifiable information), screen names or monikers for the account used or any other accounts associated with the individual, or any other identifying information, including self-reported identifying information. Information relating to when and how a customer or subscriber of a provider uploaded, transmitted, or received content relating to the report or when and how content relating to the report was reported to or discovered by the provider, including a date and time stamp and time zone. Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified address, or, if not reasonably available, at least one form of geographic identifying information, including area code or ZIP Code, provided by the customer or subscriber, or stored or obtained by the provider, and any information as to whether a virtual private network was used. Any data, including symbols, photos, video, icons, or direct messages, relating to activity involving a violation described in subsection (b)(2)(A) or other content relating to the incident such report is regarding. The complete communication containing the intent to commit a violation described in subsection (b)(2)(A), including— any data or information regarding the transmission of the communication; and any data or other digital files contained in, or attached to, the communication. In the case of a report under subsection (b)(1) that is mandated under subparagraph (A)(iv) of that subsection— the provider shall include in the report the information submitted to the provider by the user, subscriber, or customer; and the provider may include in the report any information described in paragraph (1) that the user, subscriber, or customer did not submit to the provider. The Drug Enforcement Administration shall make available each report made under subsection (b)(1) to other Federal law enforcement agencies, State and local law enforcement agencies, and foreign law enforcement agencies involved in the investigation of violations described in subsection (b)(2)(A), unless the Drug Enforcement Administration will conduct the investigation of the report. The Attorney General shall enforce this section. The Attorney General may designate a Federal law enforcement agency or agencies to which the Drug Enforcement Administration shall forward a report under subsection (d). The Attorney General may— in consultation with the Secretary of State, designate foreign law enforcement agencies to which a report may be forwarded under subsection (d); establish the conditions under which such a report may be forwarded to such agencies; and develop a process for foreign law enforcement agencies to request assistance from Federal law enforcement agencies in obtaining evidence related to a report referred under subsection (d). The Attorney General may maintain and make available to the Department of State, providers, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives a list of the foreign law enforcement agencies designated under paragraph (3). The Drug Enforcement Administration may notify a provider of the information described in subparagraph (B), if— a provider notifies the Drug Enforcement Administration that the provider is making a report under this section as the result of a request by a foreign law enforcement agency; and the Drug Enforcement Administration forwards the report described in clause (i) to— the requesting foreign law enforcement agency; or another agency in the same country designated by the Attorney General under paragraph (3). The information described in this subparagraph is— the identity of the foreign law enforcement agency to which the report was forwarded; and the date on which the report was forwarded. If a provider notifies the Drug Enforcement Administration that the provider is making a report under this section as the result of a request by a foreign law enforcement agency and the Drug Enforcement Administration is unable to forward the report as described in subparagraph (A)(ii), the Drug Enforcement Administration shall notify the provider that the Drug Enforcement Administration was unable to forward the report. A provider that knowingly and willfully fails to make a report required under subsection (b)(1) shall be fined— in the case of an initial knowing and willful failure to make a report, not more than $190,000; and in the case of any second or subsequent knowing and willful failure to make a report, not more than $380,000. Nothing in this section shall be construed to require a provider to— monitor any user, subscriber, or customer of that provider; monitor the content of any communication of any person described in paragraph (1); or affirmatively search, screen, or scan for facts or circumstances described in subsections (b) and (c). Except as provided in paragraph (2), a law enforcement agency that receives a report under subsection (d) shall not disclose any information contained in that report. A law enforcement agency may disclose information in a report received under subsection (d)— to an attorney for the government for use in the performance of the official duties of that attorney; to such officers and employees of that law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions; to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law; if the report discloses a violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law; to a defendant in a criminal case or the attorney for that defendant to the extent the information relates to a criminal charge pending against that defendant; to a provider if necessary to facilitate response to legal process issued in connection to a criminal investigation, prosecution, or post-conviction remedy relating to that report; and as ordered by a court upon a showing of good cause and pursuant to any protective orders or other conditions that the court may impose. Subject to clause (ii), for the purposes of this section, a completed submission by a provider of a report to the Drug Enforcement Administration under subsection (b)(1) shall be treated as a request to preserve the contents provided in the report, and any data or other digital files that are reasonably accessible and may provide context or additional information about the reported material or person, for 90 days after the submission to the Drug Enforcement Administration. The Drug Enforcement Administration may not extend the required period of preservation under clause (i) on the basis of a notification by the Drug Enforcement Administration to the provider under subsection (e)(5)(A). The Drug Enforcement Administration may not submit a request to a provider to continue preservation of the contents of a report or other data described in clause (i) under section 2703(f) of title 18, United States Code, beyond the required period of preservation under clause (i) of this subparagraph unless the Drug Enforcement Administration intends in good faith to investigate the user, subscriber, or customer account at issue in the report or make the report available to another Federal, State, or local law enforcement agency. Nothing in subclause (II) shall preclude another Federal, State, or local law enforcement agency from seeking continued preservation of the contents of a report or other data described in clause (i) under section 2703(f) of title 18, United States Code. A provider may not notify a user, subscriber, or customer of the provider of a preservation request described in subparagraph (A) unless— the provider has notified the Drug Enforcement Administration of its intent to provide that notice; and 5 business days have elapsed since the notification under clause (i). A provider preserving materials under this section shall maintain the materials in a secure location and take appropriate steps to limit access to the materials by agents or employees of the service to that access necessary to comply with the requirements of this subsection. Nothing in this section shall be construed as replacing, amending, or otherwise interfering with the authorities and duties under section 2703 of title 18, United States Code. The table of contents for the Controlled Substances Act (21 U.S.C. 801 et seq.) is amended by inserting after the item relating to section 520 the following: Section 2702 of title 18, United States Code, is amended— in subsection (b)— in paragraph (8), by striking or at the end; in paragraph (9), by striking the period at the end and inserting ; or; and by adding at the end the following: to a law enforcement agency, in connection with a report submitted thereto under section 521 of the Controlled Substances Act. in subsection (c)— in paragraph (6), by striking or at the end; in paragraph (7), by striking the period at the end and inserting ; or; and by adding at the end the following: to a law enforcement agency, in connection with a report submitted thereto under section 521 of the Controlled Substances Act. Paragraph (7) of section 2702(b) of title 18, United States Code, is amended to read as follows: to a law enforcement agency if the contents— were inadvertently obtained by the service provider; and appear to pertain to the commission of a crime; 521.Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations(a)DefinitionsIn this section, the terms electronic communication service, electronic mail address, provider, remote computing service, and website have the meanings given those terms in section 2258E of title 18, United States Code.(b)Duty To report(1)In general(A)DutyIn order to reduce the proliferation of the unlawful sale, distribution, or manufacture (as applicable) of counterfeit controlled substances and certain controlled substances, a provider—(i)shall, as soon as reasonably possible after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(A), take the actions described in subparagraph (B);(ii)may, after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(B), take the actions described in subparagraph (B);(iii)may, if the provider reasonably believes that any facts or circumstances described in paragraph (2)(A) exist, take the actions described in subparagraph (B); and(iv)shall, if a submission to the provider by a user, subscriber, or customer of the provider alleges facts or circumstances described in paragraph (2) and the provider upon review has a reasonable belief that the alleged facts or circumstances exist, take the actions described in subparagraph (B).(B)Actions describedThe actions described in this subparagraph are—(i)providing to the Drug Enforcement Administration the mailing address, telephone number, facsimile number, and electronic mailing address of, and individual point of contact for, such provider; and(ii)making a report of such facts or circumstances to the Drug Enforcement Administration.(2)Facts and circumstances(A)ViolationsThe facts or circumstances described in this subparagraph are any facts or circumstances that indicate a violation has occurred involving—(i)the unlawful sale or distribution of—(I)fentanyl; or(II)methamphetamine; or(ii)the unlawful sale, distribution, or manufacture of a counterfeit controlled substance. (B)Imminent violationsThe facts or circumstances described in this subparagraph are any facts or circumstances that indicate that a violation described in subparagraph (A) may be planned or imminent.(c)Contents of report(1)In generalIn an effort to prevent future violations described in subsection (b)(2)(A), and to the extent the information is within the custody or control of a provider, the facts and circumstances included in each report under subsection (b)(1) may, at the sole discretion of the provider, except as provided in paragraph (2), include the following information:(A)Information about the involved individualInformation relating to the identity of any individual who has committed a violation or plans to commit a violation described in subsection (b)(2)(A), which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, uniform resource locator, payment information (excluding personally identifiable information), screen names or monikers for the account used or any other accounts associated with the individual, or any other identifying information, including self-reported identifying information. (B)Historical referenceInformation relating to when and how a customer or subscriber of a provider uploaded, transmitted, or received content relating to the report or when and how content relating to the report was reported to or discovered by the provider, including a date and time stamp and time zone.(C)Geographic location informationInformation relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified address, or, if not reasonably available, at least one form of geographic identifying information, including area code or ZIP Code, provided by the customer or subscriber, or stored or obtained by the provider, and any information as to whether a virtual private network was used. (D)Data relating to certain controlled substances violationsAny data, including symbols, photos, video, icons, or direct messages, relating to activity involving a violation described in subsection (b)(2)(A) or other content relating to the incident such report is regarding. (E)Complete communicationThe complete communication containing the intent to commit a violation described in subsection (b)(2)(A), including—(i)any data or information regarding the transmission of the communication; and(ii)any data or other digital files contained in, or attached to, the communication.(2)ExceptionIn the case of a report under subsection (b)(1) that is mandated under subparagraph (A)(iv) of that subsection—(A)the provider shall include in the report the information submitted to the provider by the user, subscriber, or customer; and(B)the provider may include in the report any information described in paragraph (1) that the user, subscriber, or customer did not submit to the provider.(d)Forwarding of report to other Federal law enforcement agencies, State and local law enforcement agencies, and foreign law enforcement agenciesThe Drug Enforcement Administration shall make available each report made under subsection (b)(1) to other Federal law enforcement agencies, State and local law enforcement agencies, and foreign law enforcement agencies involved in the investigation of violations described in subsection (b)(2)(A), unless the Drug Enforcement Administration will conduct the investigation of the report.(e)Attorney general responsibilities(1)In generalThe Attorney General shall enforce this section.(2)Designation of federal agenciesThe Attorney General may designate a Federal law enforcement agency or agencies to which the Drug Enforcement Administration shall forward a report under subsection (d).(3)Designation of foreign agenciesThe Attorney General may—(A)in consultation with the Secretary of State, designate foreign law enforcement agencies to which a report may be forwarded under subsection (d);(B)establish the conditions under which such a report may be forwarded to such agencies; and(C)develop a process for foreign law enforcement agencies to request assistance from Federal law enforcement agencies in obtaining evidence related to a report referred under subsection (d).(4)Reporting designated foreign agenciesThe Attorney General may maintain and make available to the Department of State, providers, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives a list of the foreign law enforcement agencies designated under paragraph (3).(5)Notification to providers(A)In generalThe Drug Enforcement Administration may notify a provider of the information described in subparagraph (B), if— (i)a provider notifies the Drug Enforcement Administration that the provider is making a report under this section as the result of a request by a foreign law enforcement agency; and(ii)the Drug Enforcement Administration forwards the report described in clause (i) to—(I)the requesting foreign law enforcement agency; or(II)another agency in the same country designated by the Attorney General under paragraph (3).(B)Information describedThe information described in this subparagraph is—(i)the identity of the foreign law enforcement agency to which the report was forwarded; and(ii)the date on which the report was forwarded.(C)Notification of inability to forward reportIf a provider notifies the Drug Enforcement Administration that the provider is making a report under this section as the result of a request by a foreign law enforcement agency and the Drug Enforcement Administration is unable to forward the report as described in subparagraph (A)(ii), the Drug Enforcement Administration shall notify the provider that the Drug Enforcement Administration was unable to forward the report.(f)Failure To reportA provider that knowingly and willfully fails to make a report required under subsection (b)(1) shall be fined—(1)in the case of an initial knowing and willful failure to make a report, not more than $190,000; and(2)in the case of any second or subsequent knowing and willful failure to make a report, not more than $380,000.(g)Protection of privacyNothing in this section shall be construed to require a provider to—(1)monitor any user, subscriber, or customer of that provider;(2)monitor the content of any communication of any person described in paragraph (1); or(3)affirmatively search, screen, or scan for facts or circumstances described in subsections (b) and (c).(h)Conditions of disclosure of information contained within report(1)In generalExcept as provided in paragraph (2), a law enforcement agency that receives a report under subsection (d) shall not disclose any information contained in that report.(2)Permitted disclosures by law enforcementA law enforcement agency may disclose information in a report received under subsection (d)—(A)to an attorney for the government for use in the performance of the official duties of that attorney;(B)to such officers and employees of that law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions;(C)to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law;(D)if the report discloses a violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law;(E)to a defendant in a criminal case or the attorney for that defendant to the extent the information relates to a criminal charge pending against that defendant;(F)to a provider if necessary to facilitate response to legal process issued in connection to a criminal investigation, prosecution, or post-conviction remedy relating to that report; and(G)as ordered by a court upon a showing of good cause and pursuant to any protective orders or other conditions that the court may impose.(i)Preservation(1)In general(A)Request to preserve contents(i)In generalSubject to clause (ii), for the purposes of this section, a completed submission by a provider of a report to the Drug Enforcement Administration under subsection (b)(1) shall be treated as a request to preserve the contents provided in the report, and any data or other digital files that are reasonably accessible and may provide context or additional information about the reported material or person, for 90 days after the submission to the Drug Enforcement Administration. (ii)Limitations on extension of preservation period(I)Notification that DEA has forwarded report to foreign law enforcement agencyThe Drug Enforcement Administration may not extend the required period of preservation under clause (i) on the basis of a notification by the Drug Enforcement Administration to the provider under subsection (e)(5)(A). (II)Stored Communications ActThe Drug Enforcement Administration may not submit a request to a provider to continue preservation of the contents of a report or other data described in clause (i) under section 2703(f) of title 18, United States Code, beyond the required period of preservation under clause (i) of this subparagraph unless the Drug Enforcement Administration intends in good faith to investigate the user, subscriber, or customer account at issue in the report or make the report available to another Federal, State, or local law enforcement agency.(III)Rule of constructionNothing in subclause (II) shall preclude another Federal, State, or local law enforcement agency from seeking continued preservation of the contents of a report or other data described in clause (i) under section 2703(f) of title 18, United States Code.(B)Notification to userA provider may not notify a user, subscriber, or customer of the provider of a preservation request described in subparagraph (A) unless—(i)the provider has notified the Drug Enforcement Administration of its intent to provide that notice; and(ii)5 business days have elapsed since the notification under clause (i).(2)Protection of preserved materialsA provider preserving materials under this section shall maintain the materials in a secure location and take appropriate steps to limit access to the materials by agents or employees of the service to that access necessary to comply with the requirements of this subsection.(3)Authorities and duties not affectedNothing in this section shall be construed as replacing, amending, or otherwise interfering with the authorities and duties under section 2703 of title 18, United States Code.. Sec. 521. Reporting requirements of electronic communication service providers and remote computing services for certain controlled substances violations.. (10)to a law enforcement agency, in connection with a report submitted thereto under section 521 of the Controlled Substances Act.; and (8)to a law enforcement agency, in connection with a report submitted thereto under section 521 of the Controlled Substances Act.. (7)to a law enforcement agency if the contents—(A)were inadvertently obtained by the service provider; and(B)appear to pertain to the commission of a crime;.