§ 6628 — Treatment Of Electronic Services Provided By Sergeant At Arms

(a) In this section— (1) the term “agent of the Office of the SAA” includes a provider of electronic communication service or remote computing service commissioned or used through the Office of the SAA by a Senate office to provide such services to the Senate office; (2) the term “covered data” means any electronic mail or other electronic or data communication, other data (including metadata), or other information; (3) the term “electronic communication service” has the meaning given that term in section 2510 of title 18; (4) the term “legal process” does not include a subpoena issued in accordance with the Rules of Procedure of the Select Committee on Ethics of the Senate; (5) the term “Office of the SAA” means the Office of the Sergeant at Arms and Doorkeeper of the Senate; (6) the term “provider for a Senate office” means a provider of electronic communication service or remote computing service directly commissioned or used by a Senate office to provide such services; (7) the term “remote computing service” has the meaning given that term in section 2711 of title 18; (8) the term “Senate data”, with respect to a Senate office— (A) means covered data of the Senate office; and (B) with respect to an individual described in paragraph (9) acting in a personal capacity, only means covered data that is transmitted, processed, or stored through the use of an electronic system established, maintained, or operated, or the use of electronic services provided, by— (i) a provider for the Senate office, if the Senate office or the Office of the SAA has notified the provider for a Senate office that the applicable device or account is a device or account of the Senate office; or (ii) the Office of the SAA or an officer, employee, or agent of the Office of the SAA, if the Senate office has notified the Office of the SAA that the applicable device or account is a device or account of the Senate office; (9) the term “Senate office” means a committee or office of the Senate, including a Senator (without regard to whether the Senator is acting in his or her official capacity, including acting in a personal capacity and acting through his or her campaign for elected office), an officer of the Senate (whether acting in his or her personal or official capacity), or an employee of, intern at, or other agent of a committee or office of the Senate (whether acting in his or her personal or official capacity); and (10) the term “target of a criminal investigation” means a person— (A) as to whom the prosecutor or the grand jury has substantial evidence linking that person to the commission of a crime; (B) who, in the judgment of the prosecutor, is a putative defendant; and (C) whom the prosecutor, before the date of the acquisition, subpoena, search, accessing, or disclosure of the Senate data at issue, has formally designated as a target in official records, which shall not include any such designation that was made after such date that purports to be retroactive. (A) A Senate office shall be deemed to retain possession of any Senate data of the Senate office, without regard to the use by the Senate office of any individual or entity described in paragraph (2) for the purposes of any function or service described in paragraph (2). (B) Subparagraph (A) shall not be construed to limit the use by an intended recipient of any Senate data from a Senate office. (2) The Office of the SAA, any officer, employee, or agent of the Office of the SAA, and any provider for a Senate office shall not be treated as acquiring possession, custody, or control of any Senate data by reason of its being transmitted, processed, or stored (whether temporarily or otherwise) through the use of an electronic system established, maintained, or operated, or the use of electronic services provided, in whole or in part by the Office of the SAA, the officer, employee, or agent of the Office of the SAA, or the provider for the Senate office. (A) If any provider for a Senate office receives any legal process seeking disclosure of Senate data of the Senate office that is transmitted, processed, or stored (whether temporarily or otherwise) through the use of an electronic system established, maintained, or operated, or the use of electronic services provided, in whole or in part, by the provider for a Senate office, the provider for a Senate office shall notify the Senate office and, unless specified otherwise by the Senate office, the Office of the SAA in writing. (B) A provider for a Senate office shall not be barred from providing notice to a Senate office and the Office of the SAA under subparagraph (A) by operation of any court order, any statutory provision, any other provision of law, any rule of civil or criminal procedure, or any other rule, regulation, or policy. (C) A provider for a Senate office shall not be liable under any criminal or civil law for providing notice to a Senate office or the Office of the SAA under this paragraph. (A) If the Office of the SAA or any officer, employee, or agent of the Office of the SAA receives any legal process seeking disclosure of Senate data of a Senate office that is transmitted, processed, or stored (whether temporarily or otherwise) through the use of an electronic system established, maintained, or operated, or the use of electronic services provided, in whole or in part, by the Office of the SAA or the officer, employee, or agent of the Office of the SAA, the Office of the SAA or the officer, employee, or agent of the Office of the SAA shall notify a Senate office in writing. (B) The Office of the SAA and any officer, employee, or agent of the Office of the SAA shall not be barred from providing notice to a Senate office under subparagraph (A) by operation of any court order, any statutory provision, any other provision of law, any rule of civil or criminal procedure, or any other rule, regulation, or policy. (C) The Office of the SAA and any officer, employee, or agent of the Office of the SAA shall not be liable under any criminal or civil law for providing notice to a Senate office under this paragraph. (i) If a Senator is a target of a criminal investigation, a court may, upon application by the United States, issue an order delaying the notice required under this subsection with respect to an acquisition, subpoena, search, accessing, or disclosure of Senate data in connection with such investigation for a period of not more than 60 days if the court determines that there is reason to believe that providing notice would— (I) endanger the life or physical safety of any person; (II) result in flight from prosecution; (III) result in destruction of or tampering with evidence; (IV) result in intimidation of potential witnesses; or (V) otherwise seriously jeopardize an investigation or unduly delay a trial. (ii) The court may renew such an order for additional periods of not more than 60 days each, if the court makes a renewed determination under clause (i). (B) For any investigation in which a Senator is not a target of a criminal investigation, the notice requirements under this subsection shall apply without delay. (1) In this subsection: (A) The term “instance”, with respect to a violation of this section, means each discrete act constituting a violation of this section, including each individual— (i) device, account, record, or communication channel subject to collection in a manner in violation of this section; (ii) nondisclosure order or judicial sealing order sought, maintained, or obtained; or (iii) search conducted. (B) The term “violation of this section” means— (i) the seeking, maintaining, or obtaining of a nondisclosure order or judicial sealing order to prevent notification of a Senator, a Senate office, or the Office of the SAA as required under subsection (c); or (ii) Senate data was acquired, subpoenaed, searched, accessed, or disclosed pursuant to a search, seizure, or demand for information without notice being provided as required under subsection (c). (2) Any Senator whose Senate data, or the Senate data of whose Senate office, has been acquired, subpoenaed, searched, accessed, or disclosed in violation of this section may bring a civil action against the United States if the violation was committed by an officer, employee, or agent of the United States or of any Federal department or agency. (A) If a Senator prevails on a claim under this subsection, the court shall award— (i) for each instance of a violation of this section, the greater of statutory damages of $500,000 or the amount of actual damages; (ii) reasonable attorney’s fees and costs of litigation; and (iii) such injunctive or declaratory relief as may be appropriate. (B) Upon motion by a Senator, a court may award such preliminary injunctive relief as the court determines appropriate with respect to a claim under this subsection. (A) A civil action under this subsection may not be commenced later than 5 years after the applicable Senator first obtains actual notice of the violation of this section. (B) No officer, employee, or agent of the United States or of any Federal department or agency shall be entitled to assert any form of absolute or qualified immunity as a defense to liability under this subsection. (5) The United States expressly waives sovereign immunity with respect to actions brought under this subsection. (6) It shall be an affirmative defense to an action under this subsection if the United States establishes that each of the following requirements are met: (A) At the time the Senate data was acquired, subpoenaed, searched, accessed, or disclosed, the Senator bringing the action was a target of a criminal investigation. (B) A Federal judge issued an order authorizing a delay of notice to the Senator under subsection (c)(3)(A), based on written findings meeting the requirements of such subsection. (C) The United States complied with the order described in subparagraph (B), including that the delay of notice did not exceed the period authorized by the court. (D) Any related subpoena of, warrant relating to, or access to Senate data was carried out strictly within the temporal and subject-matter scope authorized by the order, if any, authorizing the subpoena, warrant, or access. (7) Nothing in this subsection shall be construed to— (A) limit or impair the constitutional protections afforded to Members of Congress, including to protections under article I, section 6, clause 1 of the Constitution of the United States (commonly known as the “Speech or Debate Clause”); or (B) restrict the authority of the Senate or any Senate office to intervene in or defend against any legal process seeking disclosure of Senate data. (e) Upon a motion made promptly by a Senate office or provider for a Senate office, a court of competent jurisdiction shall quash or modify any legal process directed to the provider for a Senate office if compliance with the legal process would require the disclosure of Senate data of the Senate office. (f) The Office of the SAA, in consultation with the Senate Legal Counsel, shall provide information to each Senate office that commissions or uses a provider of electronic communication service or remote computing service to provide such services to the Senate office regarding the potential constitutional implications and the potential impact on privileges that may be asserted by the Senate office. (g) Nothing in this section shall be construed to limit or supersede any applicable privilege, immunity, or other objection that may apply to the disclosure of Senate data. (h) Except as provided in this section, any provision of law or rule of civil or criminal procedure of any State, political subdivision, or agency thereof, which is inconsistent with this section shall be deemed to be preempted and superseded. (i) This section shall apply to fiscal year 2005 and each fiscal year thereafter.