S. 3918 — Government Surveillance Transparency Act of 2026

This section adds chapter 206A to Title 18, United States Code, establishing definitions and procedures for criminal surveillance orders. It defines "criminal surveillance order" to encompass orders authorizing wiretaps (chapter 119), pen registers or trap-and-trace devices (chapter 206), mobile tracking devices (18 U.S.C. §3117), disclosures (chapter 121), delayed notices (18 U.S.C. §2705), search warrants (including state and tribal), military warrants (10 U.S.C. §846), sneak-and-peek warrants (18 U.S.C. §3103a), writs of assistance (28 U.S.C. §1651), and related assistance orders; "Indian Tribe" has the meaning given in the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. §5130). It prohibits sealing a criminal surveillance order, application, or inventory beyond the later of the order's execution or the authorized surveillance's end, except for up to 180 days upon the applicant's certification of potential adverse results—endangering life or safety, flight from prosecution, evidence destruction or tampering, witness intimidation, or serious jeopardy to the investigation or trial delay—provided the target is unaware of the investigation; courts may require a factual basis for certification, must unseal upon government notice that the risk has ended, and may grant one 180-day extension upon application.

This section requires courts issuing orders under 18 U.S.C. § 2703 for disclosure of customer communications or records, or under 18 U.S.C. § 3123 for pen registers or trap-and-trace devices (i.e., court authorization to capture non-content dialing, routing, addressing, or signaling information), to mandate return of an inventory under Federal Rule of Criminal Procedure 41(f)(1)(B) if a provider discloses unauthorized data to the government or the government collects unauthorized information. (Thus, courts receive notice of potential unlawful surveillance.) It further amends Rule 41(f)(1)(B) to specify that such inventories must detail (i) any unauthorized electronic data disclosed by the provider and (ii) any unauthorized government searches of persons, property, accounts, or devices, or collections of dialing, routing, addressing, or signaling information.

This section amends Section 2703 of the Stored Communications Act (SCA; 18 U.S.C. 2703), governing law enforcement access to stored electronic communications and subscriber records held by providers, to require warrants and court orders to be executed and returned in accordance with Federal Rules of Criminal Procedure for warrants; eliminate delayed notice exceptions for certain disclosures under subsection (b)(1)(B)(ii) and strike subsection (c)(3); prohibit delayed notice under Section 2705 for disclosures under subsection (b)(1)(B)(i); and require governmental entities to provide notice to affected subscribers or customers prior to court-authorized surveillance (or within 7 days after receiving adequate contact information if prior notice is infeasible due to inadequate information from the provider), with service of warrant/order copies and receipts treated analogously to search warrants (i.e., served on the person whose communications are acquired). (As background, the SCA authorizes warrants, court orders, subpoenas, and consensual disclosures for provider-held data, previously allowing notice delays under Section 2705 without strict timelines; thus, these changes enhance transparency for surveillance targets.) It further amends the All Writs Act (28 U.S.C. 1651) to require the federal government, when seeking third-party orders, to comply with Federal Rules of Criminal Procedure notice requirements applicable to warrants. Additionally, it amends Section 2702 of the SCA (18 U.S.C. 2702), prohibiting nonconsensual provider disclosures of communications or customer records, to require governmental entities receiving voluntary disclosures under subsections (b)(8) or (c)(4) to provide notice to the subscriber or customer within 7 days, unless delayed under Section 2705.

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 service providers) to authorize courts to issue orders delaying required notice to affected customers or subscribers. It replaces subsection (a) to (1) permit delays for warrants or court orders only during the period a related sealing order is in effect under chapter 206A; (2) require courts to issue delay orders for subpoenas or emergency requests for up to 180 days (from 90 days) upon governmental certification of potential adverse results (e.g., endangering life or safety, evidence destruction); (3) allow one 180-day extension on renewed certification and subsequent extensions up to 180 days each upon particularized showings under cross-referenced procedures in section 3132; and (4) require prompt governmental notification to the court when a delay is no longer needed, triggering revocation. The section further (1) adds subsection (c) requiring judges to report annually to the Administrative Office of the U.S. Courts on preclusion-of-notice orders or denials under subsection (b), with public summaries published semiannually; (2) adds subsection (d) limiting any pre-chapter 206A delay orders to 180 days; and (3) amends 18 U.S.C. §3103a (governing no-notice search warrants) to cap authorized delays at 180 days and require warrants to identify the authorizing statute.

This section amends federal statutes governing stored communications warrants (18 U.S.C. §2703), wiretap applications (§2516), pen register and trap-and-trace devices (§3122), and their definitions (§2711) to condition issuance or prosecutorial authority on state courts certifying compliance with chapter 206A of title 18, U.S. Code (i.e., requirements for transparency and public access in surveillance orders). It further amends the full faith and credit statute (28 U.S.C. §1738) to provide that criminal surveillance orders—as defined in 18 U.S.C. §3131—are entitled to full faith and credit in federal courts only if they contain such a certification. (Thus, noncompliant state and tribal court surveillance orders lose enforceability across state lines.) The amendments take effect two years after enactment, or four years after enactment for state or tribal courts lacking electronic docketing or public online docket access on the date of enactment (or that certify a need for additional time).

This section establishes annual reporting by federal judges to the Administrative Office of the United States Courts (AOUSC) on applications for orders or warrants under 18 U.S.C. § 2703 (access to stored wire or electronic communications and customer records from providers), requires the AOUSC to publish public reports summarizing the data in June of each year, and directs the AOUSC to develop a machine-readable reporting format within 180 days of enactment of the Government Surveillance Transparency Act of 2026 in consultation with specified entities (i.e., National Institute of Standards and Technology, General Services Administration, others). It replaces the existing 18 U.S.C. § 3126, which requires the Attorney General to report annually to Congress on Department of Justice pen register and trap and trace device orders (i.e., court orders authorizing capture of non-content telephone or electronic communications routing information), with new requirements for judges to report to the AOUSC on all such orders issued or denied under § 3123 and for the AOUSC to publish public reports in June summarizing applications, grants, denials, offenses, facilities, and agencies involved. (Thus, reporting expands from DOJ-only congressional reports to public AOUSC summaries covering all investigative agencies.) It also requires a machine-readable format for pen register reports within 180 days of enactment with specified consultations and authorizes AOUSC regulations on report content and form for both sets of requirements; additionally, it amends 18 U.S.C. § 2519(3) (wiretap reporting) to require website publication of those reports.

This section authorizes the Attorney General to award grants totaling up to $25 million to state and tribal court systems—using the definition of Indian tribe from 25 U.S.C. 5130 (i.e., any tribe, band, nation, pueblo, village, or community acknowledged by the Secretary of the Interior) and a broad definition of state that includes the District of Columbia and U.S. territories—to cover costs of implementing this Act's amendments during the five-year period beginning on the date of enactment.

This section authorizes appropriations of (1) $1 million to the Administrative Office of the United States Courts to implement this Act and the amendments made by this Act; 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 the Act or its amendments is held unconstitutional as applied to any person or circumstance, the remainder of the Act and its amendments remain in effect.