H.R. 7752 — Kelsey Smith Act

This section adds definitions to the Electronic Communications Privacy Act (ECPA) for “location information” (i.e., any data concerning the current or most recently known location of a telecommunications device generated, derived from, or obtained by the device, excluding communication contents), “telecommunications device” (i.e., customer premises equipment as defined in the Communications Act of 1934), and “public safety answering point” (PSAP, i.e., as defined in the Wireless Communications and Public Safety Act of 1999). It further requires providers of electronic communication service to disclose available location information for a telecommunications device without delay to an investigative or law enforcement officer or PSAP agent acting in official duties if the officer asserts (1) the device was used to contact a PSAP requesting emergency assistance during the preceding 48-hour period or there is reasonable suspicion the device is in the possession or presence of an individual involved in an emergency situation risking death or serious physical harm, and (2) the subscriber or customer (if reasonably available) or next of kin consents, or reasonable efforts were made to obtain such consent (which was neither obtained nor refused) and the officer reasonably believes delay may increase the risk of death or serious physical harm. (Thus, this facilitates rapid location disclosure during 911 calls or exigent emergencies while prioritizing consent.) The law enforcement agency must maintain records of each request, including the officer’s name, a declaration of need and compliance, and a description of the request and consent efforts. The provision does not exempt providers from complying with state laws requiring emergency disclosures and specifies a priority order for next of kin: (1) legal spouse; (2) adult child (oldest first); (3) father or mother (adoptive over natural); (4) adult sibling (oldest first); (5) grandparent; and (6) other relatives per state civil descent law.