H.R. 7738 — Government Surveillance Transparency Act of 2026

This section adds chapter 206A to title 18, United States Code, establishing procedures for criminal surveillance orders. Section 3131 defines key terms, including "criminal surveillance order," which encompasses orders authorizing wiretaps (under chapter 119 or equivalent state law), pen registers or trap-and-trace devices (under chapter 206 or equivalent state law), mobile tracking devices (under 18 U.S.C. §3117), disclosures (under chapter 121), delayed notifications (under 18 U.S.C. §2705), search or seizure warrants (federal, state, or tribal), military warrants (under 10 U.S.C. §846), sneak-and-peek warrants (under 18 U.S.C. §3103a), writs of mandamus (under 28 U.S.C. §1651), third-party assistance orders (under 18 U.S.C. §§2518(4), 3124), and capability enforcement orders (under 18 U.S.C. §2522); "Indian Tribe" (as defined in 25 U.S.C. §5130); and "inventory" (materials returned to courts upon order execution). Section 3132 prohibits sealing a criminal surveillance order, application, or inventory beyond the later of its execution date or authorized surveillance end date, except upon government request for up to 180 days if certified to avert an adverse result—endangering life or safety, flight from prosecution, evidence destruction or tampering, witness intimidation, or serious investigation or trial jeopardy—provided the target lacks awareness of the investigation and their status therein; requires court review of certifications, prompt government notification to unseal when the need ends, and a single 180-day extension.

This section requires courts issuing orders under 18 U.S.C. § 2703(d) for disclosure of customer communications or records, or § 3123(b) for pen registers or trap-and-trace devices (i.e., tools for obtaining non-content records such as call metadata), to mandate service providers return to the court an inventory—modeled on Federal Rule of Criminal Procedure 41(f)(1)(B)—disclosing any unauthorized data disclosures. (1) For § 2703(d) orders, the inventory applies if the provider discloses data not authorized by the court; (2) for § 3123(b) orders, it applies if the provider discloses unauthorized electronic data or the government obtains unauthorized or excess dialing, routing, addressing, or signaling information. This section further amends Rule 41(f)(1)(B) to require such inventories to detail any unauthorized provider disclosures of electronic data or government searches of persons, property, accounts, or devices, or excess acquisitions of such information.

This section requires governmental entities to provide notice to subscribers or customers—generally prior to court-authorized surveillance or within 7 days after receiving adequate contact information from the provider, unless delayed under 18 U.S.C. 2705—when obtaining electronic communications content or customer records from providers under the Stored Communications Act (SCA). (The SCA authorizes warrants, court orders, or subpoenas for such disclosures from electronic communication service and remote computing service providers, such as email and cloud storage companies.) It further requires SCA warrants, court orders, and subpoenas to be executed and returned in accordance with Federal Rules of Criminal Procedure requirements for warrants (i.e., service of a copy of the warrant or order and a receipt on the person whose communications were obtained, as with searched property); prohibits delayed notice for customer record disclosures under SCA court orders issued pursuant to 18 U.S.C. 2703(b)(1)(B)(i); strikes prior exceptions permitting disclosures without notice; and strikes a prior provision allowing delayed notice after certain customer record subpoenas. The section also requires compliance with warrant notice requirements for all-writs orders directed to third parties and mandates 7-day notice (unless delayed under §2705) for voluntary provider disclosures of communications content or customer records to governmental entities.

This section revises 18 U.S.C. 2705 (part of the Stored Communications Act, which governs governmental access to stored electronic communications and customer records held by providers) to authorize courts to delay required notice to affected customers or subscribers for governmental requests under §§2702, 2703, or 3123. (1) For warrants or court orders, delay is permitted only during the period a related sealing order is in effect under chapter 206A; (2) for subpoenas or emergency requests, the court must issue an initial delay order of up to 180 days (from 90 days under prior law) upon certification of potential adverse results (e.g., endangering life, evidence destruction), with one 180-day extension on renewed certification and subsequent extensions of up to 180 days each upon particularized showings; (3) courts may review certifications for sufficiency and must revoke orders when no longer needed. This section further requires annual judicial reporting on preclusion orders to the Administrative Office of the U.S. Courts (AOUSC), with AOUSC to publish aggregated public reports by June each year in a specified machine-readable format; limits any pre-chapter 206A orders to 180 days; and amends 18 U.S.C. 3103a to cap certain delayed-notice periods for search warrants at 180 days and to require applications to identify the authorizing statute.

This section amends federal statutes governing stored communications warrants (18 U.S.C. §§2703, 2711), wiretap applications (18 U.S.C. §2516), pen registers and trap-and-trace devices (18 U.S.C. §3122), and full faith and credit for state and territorial judicial proceedings (28 U.S.C. §1738) to incentivize state and tribal courts to comply with chapter 206A of title 18 by requiring compliance certifications or conditioning prosecutorial authority on state-wide compliance requirements. Specifically, it (1) requires certifications of chapter 206A compliance in stored communications warrants and search warrants; (2) limits state prosecutors' authority to apply for wiretap warrants to states requiring court compliance with chapter 206A; (3) conditions state applications for pen registers and trap-and-trace devices on such state requirements; and (4) limits full faith and credit for criminal surveillance orders (as defined in 18 U.S.C. §3131)—which 28 U.S.C. §1738 generally extends to state judicial proceedings across U.S. courts—only to those containing a certification of chapter 206A compliance. (Thus, non-compliant state or tribal surveillance orders will not receive full faith and credit in federal courts or other states.) The amendments take effect 2 years after enactment, delayed to 4 years for state or tribal courts lacking electronic docketing on the enactment date or certifying a need for additional time.

This section amends the Stored Communications Act (SCA; 18 U.S.C. §2703), which authorizes law enforcement to obtain stored wire or electronic communications and customer records from providers via court order or warrant, by adding new annual reporting requirements. Specifically, in January of each year, judges who issued or denied SCA orders or warrants in the preceding year must report detailed information to the Administrative Office of the United States Courts (AOUSC), including application outcomes, record types sought, offenses, providers served, and submitting agencies; in June, AOUSC must publish online a public report with application numbers by category, grant/denial totals, and data summaries (also incorporated into existing wiretap reports under 18 U.S.C. §2519(3), which this section further requires AOUSC to publish online). AOUSC must issue a machine-readable reporting format within 180 days of enactment (after consultations with specified entities) and may promulgate related regulations. This section fully replaces reporting requirements for pen register and trap and trace device orders under 18 U.S.C. §3126—which previously required annual Attorney General reports to Congress on Department of Justice applications only—with analogous judge-to-AOUSC reporting in January (for preceding-year orders/extensions that expired or were denied, covering application details, facilities affected, offenses, and agencies) and AOUSC public online reports in June (with application/extension numbers and data summaries). (Thus, reporting shifts from executive-branch congressional disclosures to judicial data collection with public aggregate statistics.) AOUSC must issue a machine-readable format within 180 days of enactment (after consultations) and may promulgate regulations.

This section authorizes the Attorney General to award grants totaling up to $25 million to state and tribal court systems (with "Indian tribe" defined per 25 U.S.C. 5130 and "state" including the District of Columbia and U.S. territories) to cover costs of implementing this Act's amendments during the five years following enactment.

This section authorizes appropriations of (1) $1 million to the Administrative Office of the United States Courts to implement the Act and its amendments; and (2) $25 million to carry out the grant program under section 8.

This section establishes a severability clause, providing that if any provision of this Act or its amendments, or its application to any person or circumstance, is held unconstitutional, the remainder of the Act, its amendments, and their other applications remain in effect.