Sec. 301. Assistance capability directives
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Chapter 223 of title 18, United States Code, is amended by adding at the end the following: The definitions in sections 2510 and 3119 shall apply to this section. If the Attorney General 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 described in section 2518, 2524, 3119, 3127, or 3128. A directive issued under subparagraph
(A)shall be in writing. Not later than 30 days after the date on which a person receives a directive from the Attorney General under paragraph (1), the person shall report to the Attorney General, or a designee of the Attorney General, on, at a minimum— any technical capabilities that the person knows or expects to be necessary to implement and comply with an anticipated court order or other lawful authorization under section 2518, 3119, or 3123; and the timeline of the person for developing and deploying the technical capabilities described in subparagraph (A). The Attorney General may issue a directive to a person under paragraph
(1)only if the Attorney General finds— in the case of assistance capabilities described in section 2518, 2524, or 3128 that during the preceding calendar year, communications occurring over services the person offers, provides, or has access to were subject to not fewer than 5 court orders issued under— chapter 119 of this title; or the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 et seq.); or in the case of assistance capabilities described in section 3119, that, during the preceding calendar year, data stored in any device, service, or operating system sold or licensed by the person was subject to not fewer than 5 Federal or State search warrants. No civil cause of action shall lie in any court against a person who receives a directive under paragraph
(1)for any action or omission reasonably necessary to comply with the directive. Subject to subparagraph (B), a directive issued under paragraph
(1)shall contain— a date on which the directive takes effect; and a date when the directive expires. A directive issued under paragraph
(1)may not— take effect earlier than 180 days after the date on which the directive is issued; or expire later than 2 years after the date on which the directive takes effect. Not later than 30 days after the date on which a directive issued under paragraph
(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. A directive issued to a person under paragraph
(1)may not specify technical means by which the person is required to implement the required capabilities. Not later than 30 days after the date on which the Attorney General issues a directive to a person under subsection (b), the person may file a petition to modify or set aside the directive in the United States District Court for the District of Columbia. The court may grant a petition filed under paragraph
(1)only if— the directive does not meet the requirements of this section; the person filing the petition demonstrates, by clear and convincing evidence, 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 the directive is otherwise unlawful. If none of the bases for granting a petition under subparagraph
(A)are met, the court shall deny the petition. 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 information 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. The exercise of the authority under clause
(i)does not waive any applicable privilege. 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. If the court determines that the petition does not consist of claims, defenses, or other legal contentions that are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law, the court shall immediately— deny the petition; affirm the directive or any part of the directive that is the subject of the petition; and order the recipient to comply with the directive or part thereof. Upon making a determination under subparagraph
(B)or promptly thereafter, the court shall provide a written statement for the record of the reasons for the determination. If the court determines that a petition filed under paragraph
(1)requires plenary review— 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 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 thereafter— affirm or affirm with modifications the directive; and order the person who received the directive to comply with the directive in its entirety or as modified. Upon making a determination under subparagraph
(A)or promptly thereafter, the court shall provide a written statement for the record of the reasons for the determination. 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. 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 directive issued under subsection
(b)shall not be a basis for staying a final order of the district court under this subsection pending appeal. 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. 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 information 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. The exercise of the authority under subparagraph
(A)does not waive any applicable privilege. Not later than 30 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 requirements of this section and is otherwise lawful. Upon making a determination under subparagraph
(A)or promptly thereafter, the court shall provide a written statement for the record of the reasons for the determination. Failure to obey an order issued under paragraph
(3)shall constitute contempt of court. Any process under this subsection may be served in any judicial district in which the recipient may be found or does business. 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. 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 directive issued under subsection
(b)shall not be a basis for staying a final order of the district court order under this subsection pending appeal. 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 complying with the directive. The amount of compensation provided under paragraph (1)— shall be mutually agreed upon by the Attorney General and the person complying with the directive; or in the absence of an agreement under subparagraph (A), shall be determined by the United States District Court for the District of Columbia. . The table of sections for chapter 223 of title 18, United States Code, is amended by adding at the end the following: 3513. Assistance capability directives. .
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Sec. 301
Assistance capability directives
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