What changed between these versions
A substantive modification. The short title was updated. More significantly, v2 introduces a new exception to the general prohibition on obtaining records for Members of Congress and congressional employees, specifically for certain electronic communication records, by establishing a special master review process to identify and isolate privileged information before release to governmental entities.
Overview
A handful of changes primarily concentrated in the operative provisions concerning exceptions and review processes. · v2 refines and clarifies the conditions under which certain covered materials can be accessed, introducing a new procedural safeguard while maintaining the overall intent of protecting congressional records.
The most significant change in v2 is the introduction of a special master review process for certain electronic and wire communication records pertaining to Members of Congress or congressional employees. This new procedure, outlined in Section 3773(b)(3), allows governmental entities to access these specific types of covered material under court-appointed special master oversight, which identifies and isolates privileged information. Additionally, the bill's short title was updated, and a corresponding exception was added to the general prohibition.
Major additions
This new paragraph creates an exception to the general prohibition on governmental entities seeking or obtaining covered material. It states that the prohibition does not apply to covered material described in subsection (d)(2)(B) if the access to such material is subject to the requirements under subsection (b)(3).
This addition carves out a specific category of covered material (electronic/wire communication service records) from the absolute prohibition, allowing for their potential access under defined conditions. It directly enables the new special master review process.
This new subsection establishes a detailed process for the review of 'covered material' described in subsection (d)(2)(B) (records from electronic or wire communication services). It mandates the court appointment of a special master to locate, isolate, and review such material to identify information privileged under the Constitution. The special master releases only non-privileged material to the governmental entity, with opportunities for the affected Member or employee to review and for de novo judicial review of privilege determinations. A non-disclosure agreement is required for the special master.
This is a significant procedural safeguard. It introduces an independent third-party review for a specific type of potentially sensitive congressional record, aiming to protect constitutional privileges (like Speech or Debate Clause) while allowing for potential access by governmental entities in investigations. This process directly impacts how investigations involving electronic communications of Members/employees are conducted.
Modifications
This is a minor, administrative change with no operative policy impact on the bill's substance or application. It primarily serves to distinguish this version of the Act by year.
Before
The Act could be cited as the 'Congressional Records Protection Act'.
After
The Act may be cited as the 'Congressional Records Protection Act of 2026'.
This modification clarifies the statutory placement of the new chapter within Title 18, ensuring proper codification. The inclusion of the section table is a standard legislative drafting practice and has no substantive policy impact.
Before
Title 18, United States Code, is amended by adding at the end the following: 'CHAPTER 239--CONGRESSIONAL RECORDS'.
After
Title 18, United States Code, is amended by adding at the end of part II the following: 'CHAPTER 239--CONGRESSIONAL RECORDS' and includes a section table for 3773.
The change in title clarifies the nature of the exception, emphasizing its applicability solely to criminal investigations. This does not alter the operative conditions or scope of the exception itself, but provides clearer labeling for readers.
Before
This subsection was titled '(2) Exception.' It stated that the general prohibition does not apply if the subject is a target of a criminal investigation, or a third party where the Member/employee is a target of a criminal investigation.
After
This subsection is now titled '(2) Criminal exception.' Its content remains identical to v1, outlining the same conditions under which the general prohibition does not apply related to criminal investigations.
This modification ensures the correct placement of the new chapter in the table of contents for Title 18, aligning with the substantive change in Section 2(a) regarding the chapter's location. The formatting change is purely stylistic.
Before
The table of chapters at the beginning of part I of title 18, United States Code, is amended by inserting after the item relating to chapter 238 the following new item: '239. Congressional Records 3773'.
After
The table of chapters at the beginning of part II of title 18, United States Code, is amended by inserting after the item relating to chapter 238 the following new item: '239. Congressional records................................ 3773'.
Scope
Meaningful expansion or narrowing — Changes are concentrated in the short title and the core operative section (Section 3773) that defines the prohibition and its exceptions. — v2 represents a refinement of the policy direction, introducing a specific procedural mechanism (special master review) for certain electronic records rather than a fundamental shift. It aims to balance the protection of congressional records with the needs of criminal investigations under specific conditions. — The new exception in Section 3773(a)(3) directly interacts with and modifies the scope of the general prohibition established in Section 3773(a)(1) by creating a specific pathway for a subset of covered material. The new special master review process in Section 3773(b)(3) provides a distinct procedure for handling (d)(2)(B) material, which was previously subject only to the general notice and delayed review provisions.
Impact analysis
Governmental entities (federal and state departments/agencies)
Procedural change, with a potential to gain access under strict conditions.
In v1, governmental entities faced a broad prohibition on obtaining 'covered material' with limited criminal investigation exceptions and notice/delay requirements. In v2, for 'covered material' consisting of electronic or wire communication service records (d)(2)(B), they now have a defined, albeit more complex, pathway to potentially access such records through a special master review process.
Members of Congress and congressional employees
Procedural change, with enhanced specific protections for privileged communications, but also a new pathway for access to non-privileged electronic communications.
In v1, their 'covered material' was largely protected by a broad prohibition, with exceptions only for criminal targets. In v2, their electronic and wire communication service records (d)(2)(B) are now subject to a special master review process, which allows for potential access by governmental entities, but only after privileged information is identified and isolated by an independent third party. They also gain the right to review proposed releases and seek de novo judicial review.