PRESERVATION OF RECORDS; COMITY ANALYSIS OF LEGAL PROCESS.

SEC. 103. PRESERVATION OF RECORDS; COMITY ANALYSIS OF LEGAL PROCESS. (a) Required Preservation and Disclosure of Communications and Records.— (1) Amendment.—Chapter 121 of title 18, United States Code, is amended by adding at the end the following: “SEC. 2713. [18 U.S.C. 2713] Required preservation and disclosure of communications and record A provider of electronic communication service or remote computing service shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.” . (2) [18 U.S.C. 2701] Table of sections.—The table of sections for chapter 121 of title 18, United States Code, is amended by inserting after the item relating to section 2712 the following: “2713. Required preservation and disclosure of communications and records.” . (b) Comity Analysis of Legal Process Seeking Contents of Wire or Electronic Communication.—Section 2703 of title 18, United States Code, is amended by adding at the end the following: “(h) Comity Analysis and Disclosure of Information Regarding Legal Process Seeking Contents of Wire or Electronic Communication.— “(1) Definitions.—In this subsection— “(A) the term ‘qualifying foreign government’ means a foreign government— “(i) with which the United States has an executive agreement that has entered into force under section 2523; and “(ii) the laws of which provide to electronic communication service providers and remote computing service providers substantive and procedural opportunities similar to those provided under paragraphs (2) and (5); and “(B) the term ‘United States person’ has the meaning given the term in section 2523. “(2) Motions to quash or modify.—(A) A provider of electronic communication service to the public or remote computing service, including a foreign electronic communication service or remote computing service, that is being required to disclose pursuant to legal process issued under this section the contents of a wire or electronic communication of a subscriber or customer, may file a motion to modify or quash the legal process where the provider reasonably believes— “(i) that the customer or subscriber is not a United States person and does not reside in the United States; and “(ii) that the required disclosure would create a material risk that the provider would violate the laws of a qualifying foreign government. Such a motion shall be filed not later than 14 days after the date on which the provider was served with the legal process, absent agreement with the government or permission from the court to extend the deadline based on an application made within the 14 days. The right to move to quash is without prejudice to any other grounds to move to quash or defenses thereto, but it shall be the sole basis for moving to quash on the grounds of a conflict of law related to a qualifying foreign government. “(B) Upon receipt of a motion filed pursuant to subparagraph (A), the court shall afford the governmental entity that applied for or issued the legal process under this section the opportunity to respond. The court may modify or quash the legal process, as appropriate, only if the court finds that— “(i) the required disclosure would cause the provider to violate the laws of a qualifying foreign government; “(ii) based on the totality of the circumstances, the interests of justice dictate that the legal process should be modified or quashed; and “(iii) the customer or subscriber is not a United States person and does not reside in the United States. “(3) Comity analysis.—For purposes of making a determination under paragraph (2)(B)(ii), the court shall take into account, as appropriate— “(A) the interests of the United States, including the investigative interests of the governmental entity seeking to require the disclosure; “(B) the interests of the qualifying foreign government in preventing any prohibited disclosure; “(C) the likelihood, extent, and nature of penalties to the provider or any employees of the provider as a result of inconsistent legal requirements imposed on the provider; “(D) the location and nationality of the subscriber or customer whose communications are being sought, if known, and the nature and extent of the subscriber or customer’s connection to the United States, or if the legal process has been sought on behalf of a foreign authority pursuant to section 3512, the nature and extent of the subscriber or customer’s connection to the foreign authority’s country; “(E) the nature and extent of the provider’s ties to and presence in the United States; “(F) the importance to the investigation of the information required to be disclosed; “(G) the likelihood of timely and effective access to the information required to be disclosed through means that would cause less serious negative consequences; and “(H) if the legal process has been sought on behalf of a foreign authority pursuant to section 3512, the investigative interests of the foreign authority making the request for assistance. “(4) Disclosure obligations during pendency of challenge.—A service provider shall preserve, but not be obligated to produce, information sought during the pendency of a motion brought under this subsection, unless the court finds that immediate production is necessary to prevent an adverse result identified in section 2705(a)(2). “(5) Disclosure to qualifying foreign government.—(A) It shall not constitute a violation of a protective order issued under section 2705 for a provider of electronic communication service to the public or remote computing service to disclose to the entity within a qualifying foreign government, designated in an executive agreement under section 2523, the fact of the existence of legal process issued under this section seeking the contents of a wire or electronic communication of a customer or subscriber who is a national or resident of the qualifying foreign government. “(B) Nothing in this paragraph shall be construed to modify or otherwise affect any other authority to make a motion to modify or quash a protective order issued under section 2705.” . (c) [18 U.S.C. 2703 note] Rule of Construction.—Nothing in this section, or an amendment made by this section, shall be construed to modify or otherwise affect the common law standards governing the availability or application of comity analysis to other types of compulsory process or to instances of compulsory process issued under section 2703 of title 18, United States Code, as amended by this section, and not covered under subsection (h)(2) of such section 2703.