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Report
Cris Vol 1 Issue 15
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Submitted to Crisnews By:
Bruce Kniffen
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2510. Definitions
As used in this chapter [18 USC ss 2510 et seq.]
(1) "wire communication" means any aural transfer made in whole
or in part through the use of facilities for the transmission of
communications by the aid of wire, cable, or other like connection
between the point of origin and the point of reception (including
the use of such connection in a switching station) furnished or
operated by any person engaged in providing or operating such
facilities for the transmission of interstate or foreign communica-
tions or communications affecting interstate or foreign commerce
and such term includes any electronic storage of such communica-
tion, but such term does not include the radio portion of a
cordless telephone communication that is transmitted between the
cordless telephone handset and the base unit;
(2) "oral communication" means any oral communication uttered
by a person exhibiting an expectation that such communication is
not subject to interception under circumstances justifying such
expectation, but such term does not include any electronic
communication;
(3) "State" means any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States;
(4) "intercept" means the aural or other acquisition of the
contents of any wire, electronic, or oral communication through the
use of any electronic, mechanical, or other device.
(5) "electronic, mechanical, or other device" means any device
or apparatus which can be used to intercept a wire, oral, or
electronic communication other than
(a) any telephone or telegraph instrument, equipment or
facility, or any component thereof, (i) furnished to the subscrib-
er or user by a provider of wire or electronic communication
service in the ordinary course of its business and being used by
the subscriber or user in the ordinary course of its business or
furnished by such subscriber or user for connection to the
facilities of such service and used in the ordinary course of its
business; or (ii) being used by a provider of wire or electronic
communication service in the ordinary course of its business, or
by an investigative or law enforcement officer in the ordinary
course of his duties;
(b) a hearing aid or similar device being used to correct
subnormal hearing to not better than normal;
(6) "person" means any employee, or agent of the United States
or any State or political subdivision thereof, and any individual,
partnership, association, joint stock company, trust, or corpora-
tion;
(7) "Investigative or law enforcement officer" means any officer
of the United States or of a State or political subdivision
thereof, who is empowered by law to conduct investigations of or
to make arrests for offenses enumerated in this chapter [18 USC ss
2510 et seq.], and any attorney authorized by law to prosecute or
participate in the prosecution of such offenses;
(8) "contents," when used with respect to any wire, oral, or
electronic communication, includes any information concerning the
substance, purport, or meaning of that communication;
(9) "Judge of competent jurisdiction" means
(a) a judge of a United States district court or a United
States court of appeals; and
(b) a judge of any court of general criminal jurisdiction
of a State who is authorized by a statute of that State to enter
orders authorizing interceptions of wire, oral, or electronic
communications;
(10) "communication common carrier" shall have the same meaning
which is given the term "common carrier" by section 153(h) of title
47 of the United States Code;
(11) "aggrieved person" means a person who was a party to any
intercepted wire, oral, or electronic communication or a person
against whom the interception was directed;
(12) "electronic communication" means any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio, electro-
magnetic, photoelectronic or photooptical system that affects
interstate or foreign commerce, but does not include
(A) the radio portion of a cordless telephone communication
that is transmitted between the cordless telephone handset and the
base unit;
(B) any wire or oral communication;
(C) any communication made through a tone-only paging device;
or
(D) any communication from a tracking device (as defined in
section 3117 of this title);
(13) "user" means any person or entity who
(A) uses an electronic communication service; and
(B) is duly authorized by the provider of such service to
engage in such use;
(14) "electronic communications system" means any wire, radio,
electromagnetic, photooptical or photoelectronic facilities for the
transmission of electronic communications, and any computer
facilities or related electronic equipment for the electronic
storage of such communications;
(15) "electronic communication service" means any service which
provides to users thereof the ability to send or receive wire or
electronic communications;
(16) "readily accessible to the general public" means, with
respect to a radio communication, that such communication is not
(A) scrambled or encrypted;
(B) transmitted using modulation techniques whose essential
parameters have been withheld from the public with the intention
of preserving the privacy of such communication;
(C) carried on a subcarrier or other signal subsidiary to a
radio transmission;
(D) transmitted over a communication system provided by a
common carrier, unless the communication is a tone only paging
system communication; or
(E) transmitted on frequencies allocated under part 25,
subpart D, E, or F of part 74, or part 94 of the Rules of the
Federal Communications Commission, unless, in the case of a
communication transmitted on a frequency allocated under part 74
that is not exclusively allocated to broadcast auxiliary services,
the communication is a two-way voice communication by radio;
(17) "electronic storage" means
(A) any temporary, intermediate storage of a wire or
electronic communication incidental to the electronic transmission
thereof; and
(B) any storage of such communication by an electronic
communication service for purposes of backup protection of such
communication; and
(18) "aural transfer" means a transfer containing the human
voice at any point between and including the point of origin and
the point of reception.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2511. Interception and disclosure of wire, oral, or electronic
communications prohibited
(1) Except as otherwise specifically provided in this chapter [18
USC ss 2510 et seq.] any person who
(a) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept,
any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any
other person to use or endeavor to use any electronic, mechanical,
or other device to intercept any oral communication when
(i) such device is affixed to, or otherwise transmits a
signal through, a wire, cable, or other like connection used in
wire communication; or
(ii) such device transmits communications by radio, or
interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such
device or any component thereof has been sent through the mail or
transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the
premises of any business or other commercial establishment the
operations of which affect interstate or foreign commerce; or (B)
obtains or is for the purpose of obtaining information relating to
the operations of any business or other commercial establishment
the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession of the
United States;
(c) intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or electronic
communication, knowing or having reason to know that the informa-
tion was obtained through the interception of a wire, oral, or
electronic communication in violation of this subsection;
or
(d) intentionally uses, or endeavors to use, the contents
of any wire, oral, or electronic communication, knowing or having
reason to know that the information was obtained through the
interception of a wire, oral, or electronic communication in
violation of this subsection;
shall be punished as provided in subsection (4) or shall be
subject to suit as provided in subsection (5).
(2)(a)(i) It shall not be unlawful under this chapter for an
operator of a switchboard, or an officer, employee, or agent of a
provider of wire or electronic communication service, whose
facilities are used in the transmission of a wire communication,
to intercept, disclose, or use that communication in the normal
course of his employment while engaged in any activity which is a
necessary incident to the rendition of his service or to the
protection of the rights or property of the provider of that
service, except that a provider of wire communication service to
the public shall not utilize service observing or random monitor-
ing except for mechanical or service quality control checks.
(ii) Notwithstanding any other law, providers of wire or
electronic communication service, their officers, employees, and
agents, landlords, custodians, or other persons, are authorized to
provide information, facilities, or technical assistance to persons
authorized by law to intercept wire, oral, or electronic communica-
tions or to conduct electronic surveillance, as defined in section
101 of the Foreign Intelligence Surveillance Act of 1978 if such
provider, its officers, employees, or agents, landlord, custodian,
or other specified person, has been provided with
(A) a court order directing such assistance signed by the
authorizing judge, or
(B) a certification in writing by a person specified in
section 2518(7) of this title [18 USC s 2518(7)] or the Attorney
General of the United States that no warrant or court order is
required by law, that all statutory requirements have been met, and
that the specified assistance is required, setting forth the period
of time during which the provision of the information, facilities,
or technical assistance is authorized and specifying the informa-
tion, facilities, or technical assistance required. No provider of
wire or electronic communication service, officer, employee, or
agent thereof, or landlord, custodian, or other specified person
shall disclose the existence of any interception or surveillance
or the device used to accomplish the interception or surveillance
with respect to which the person has been furnished an order or
certification under this subparagraph, except as may otherwise be
required by legal process and then only after prior notification
to the Attorney General or to the principal prosecuting attorney
of a State or any political subdivision of a State, as may be
appropriate. Any such disclosure, shall render such person liable
for the civil damages provided for in section 2520. No cause of
action shall lie in any court against any provider of wire or
electronic communication service, its officers, employees, or
agents, landlord, custodian, or other specified person for
providing information, facilities, or assistance in accordance with
the terms of a court order or certification under this chapter.
(b) It shall not be unlawful under this chapter for an
officer, employee, or agent of the Federal Communications Commis-
sion, in the normal course of his employment and in discharge of
the monitoring responsibilities exercised by the Commission in the
enforcement of chapter 5 of title 47 of the United States Code, to
intercept a wire or electronic communication, or oral communication
transmitted by radio, or to disclose or use the information thereby
obtained.
(c) It shall not be unlawful under this chapter for a
person acting under color of law to intercept a wire, oral, or
electronic communication, where such person is a party to the
communication or one of the parties to the communication has given
prior consent to such interception.
(d) It shall not be unlawful under this chapter for a
person not acting under color of law to intercept a wire or oral
communication where such person is a party to the communication or
where one of the parties to the communication has given prior
consent to such interception unless such communication is inter-
cepted for the purpose of committing any criminal or tortious act
in violation of the Constitution or laws of the United States or
of any State.
(e) Notwithstanding any other provision of this title [18
USC ss 1 et seq.] or section 705 or 706 of the Communications Act
of 1934 [47 USC s 605 or 606], it shall not be unlawful for an
officer, employee, or agent of the United States in the normal
course of his official duty to conduct electronic surveillance, as
defined in section 101 of the Foreign Intelligence Surveillance Act
of 1978 [50 USC s 1801], as authorized by that Act [50 USC ss 1801
et seq.].
(f) Nothing contained in this chapter [18 USC ss 2510 et
seq.] or chapter 121, or section 705 of the Communications Act of
1934 [47 USC s 605], shall be deemed to affect the acquisition by
the United States Government of foreign intelligence information
from international or foreign communications, or foreign intelli-
gence activities conducted in accordance with otherwise applicable
Federal law involving a foreign electronic communications system,
utilizing a means other than electronic surveillance as defined in
section 101 of the Foreign Intelligence Surveillance Act of 1978
[50 USC s 1801], and procedures in this chapter [18 USC ss 2510 et
seq.] and the Foreign Intelligence Surveillance Act of 1978 [50
USC ss 1801 et seq.] shall be the exclusive means by which
electronic surveillance, as defined in section 101 of such Act [50
USC s 1801], and the interception of domestic wire, oral, or
electronic communications may be conducted.
(g) It shall not be unlawful under this chapter or chapter
121 of this title for any person
(i) to intercept or access an electronic communication
made through an electronic communication system that is configured
so that such electronic communication is readily accessible to the
general public;
(ii) to intercept any radio communication which is trans-
mitted
(I) by any station for the use of the general public,
or that relates to ships, aircraft, vehicles, or persons in
distress;
(II) by any governmental, law enforcement, civil
defense, private land mobile, or public safety communications
system, including police and fire, readily accessible to the
general public;
(III) by a station operating on an authorized frequency
within the bands allocated to the amateur, citizens band, or
general mobile radio services; or
(IV) by any marine or aeronautical communications
system;
(iii) to engage in any conduct which
(I) is prohibited by section 633 of the Communications
Act of 1934; or
(II) is excepted from the application of section 705(a)
of the Communications Act of 1934 by section 705(b) of that Act;
(iv) to intercept any wire or electronic communication the
transmission of which is causing harmful interference to any
lawfully operating station or consumer electronic equipment, to the
extent necessary to identify the source of such interference; or
(v) for other users of the same frequency to intercept any
radio communication made through a system that utilizes frequencies
monitored by individuals engaged in the provision or the use of
such system, if such communication is not scrambled or encrypted.
(h) It shall not be unlawful under this chapter
(i) to use a pen register or a trap and trace device (as
those terms are defined for the purposes of chapter 206 (relating
to pen registers and trap and trace devices) of this title); or
(ii) for a provider of electronic communication service
to record the fact that a wire or electronic communication was
initiated or completed in order to protect such provider, another
provider furnishing service toward the completion of the wire or
electronic communication, or a user of that service, from fraudu-
lent, unlawful or abusive use of such service.
(3)(a) Except as provided in paragraph (b) of this subsection, a
person or entity providing an electronic communication service to
the public shall not intentionally divulge the contents of any
communication (other than one to such person or entity, or an
agent thereof) while in transmission on that service to any person
or entity other than an addressee or intended recipient of such
communication or an agent of such addressee or intended recipient.
(b) A person or entity providing electronic communication
service to the public may divulge the contents of any such
communication
(i) as otherwise authorized in section 2511(2)(a) or 2517
of this title;
(ii) with the lawful consent of the originator or any
addressee or intended recipient of such communication;
(iii) to a person employed or authorized, or whose
facilities are used, to forward such communication to its destina-
tion; or
(iv) which were inadvertently obtained by the service
provider and which appear to pertain to the commission of a crime,
if such divulgence is made to a law enforcement agency.
(4)(a) Except as provided in paragraph (b) of this subsection or
in subsection (5), whoever violates subsection (1) of this section
shall be fined under this title or imprisoned not more than five
years, or both.
(b) If the offense is a first offense under paragraph (a)
of this subsection and is not for a tortious or illegal purpose or
for purposes of direct or indirect commercial advantage or private
commercial gain, and the wire or electronic communication with
respect to which the offense under paragraph (a) is a radio
communication that is not scrambled or encrypted, then
(i) if the communication is not the radio portion of a
cellular telephone communication, a public land mobile radio
service communication or a paging service communication, and the
conduct is not that described in subsection (5), the offender
shall be fined under this title or imprisoned not more than one
year, or both; and
(ii) if the communication is the radio portion of a
cellular telephone communication, a public land mobile radio
service communication or a paging service communication, the
offender shall be fined not more than $500.
(c) Conduct otherwise an offense under this subsection that
consists of or relates to the interception of a satellite transmis-
sion that is not encrypted or scrambled and that is transmitted
(i) to a broadcasting station for purposes of retrans-
mission to the general public; or
(ii) as an audio subcarrier intended for redistribution
to facilities open to the public, but not including data transmis-
sions or telephone calls,is not an offense under this subsection
unless the conduct is for the purposes of direct or indirect
commercial advantage or private financial gain.
(5)(a)(i) If the communication is (A) a private satellite video
communication that is not scrambled or encrypted and the conduct
in violation of this chapter is the private viewing of that
communication and is not for a tortious or illegal purpose or for
purposes of direct or indirect commercial advantage or private
commercial gain; or (B) a radio communication that is transmitted
on frequencies allocated under subpart D of part 74 of the rules
of the Federal Communications Commission that is not scrambled or
encrypted and the conduct in violation of this chapter is not for
a tortious or illegal purpose or for purposes of direct or indirect
commercial advantage or private commercial gain, then the person
who engages in such conduct shall be subject to suit by the Federal
Government in a court of competent jurisdiction.
(ii) In an action under this subsection
(A) if the violation of this chapter is a first offense
for the person under paragraph (a) of subsection (4) and such
person has not been found liable in a civil action under section
2520 of this title, the Federal Government shall be entitled to
appropriate injunctive relief; and
(B) if the violation of this chapter is a second or
subsequent offense under paragraph (a) of subsection (4) or such
person has been found liable in any prior civil action under
section 2520, the person shall be subject to a mandatory $500 civil
fine.
(b) The court may use any means within its authority to
enforce an injunction issued under paragraph (ii)(A), and shall
impose a civil fine of not less than $500 for each violation of
such an injunction.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2512. Manufacture, distribution, possession, and advertising of
wire, oral, or electronic communication intercepting devices
prohibited
(1) Except as otherwise specifically provided in this chapter,
any person who intentionally
(a) sends through the mail, or sends or carries in inter-
state or foreign commerce, any electronic, mechanical, or other
device, knowing or having reason to know that the design of such
device renders it primarily useful for the purpose of the surrepti-
tious interception of wire, oral, or electronic communications;
(b) manufactures, assembles, possesses, or sells any
electronic, mechanical, or other device, knowing or having reason
to know that the design of such device renders it primarily useful
for the purpose of the surreptitious interception of wire, oral,
or electronic communications, and that such device or any component
thereof has been or will be sent through the mail or transported
in interstate or foreign commerce; or
(c) places in any newspaper, magazine, handbill, or other
publication any advertisement of
(i) any electronic, mechanical, or other device knowing
or having reason to know that the design of such device renders
it primarily useful for the purpose of the surreptitious intercep-
tion of wire, oral, or electronic communications; or
(ii) any other electronic, mechanical, or other device,
where such advertisement promotes the use of such device for the
purpose of the surreptitious interception of wire, oral, or
electronic communications, knowing or having reason to know that
such advertisement will be sent through the mail or transported in
interstate or foreign commerce,
(2) It shall not be unlawful under this section for
(a) a provider of wire or electronic communication service
or an officer, agent, or employee of, or a person under contract
with, such a provider, in the normal course of the business of
providing that wire or electronic communication service, or
(b) an officer, agent, or employee of, or a person under
contract with, the United States, a State, or a political subdivi-
sion thereof, in the normal course of the activities of the United
States, a State, or a political subdivision thereof, to send
through the mail, send or carry in interstate or foreign commerce,
or manufacture, assemble, possess, or sell any electronic,
mechanical, or other device knowing or having reason to know that
the design of such device renders it primarily useful for the
purpose of the surreptitious interception of wire, oral, or
electronic communications.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2513. Confiscation of wire, oral, or electronic communication
intercepting devices
Any electronic, mechanical, or other device used, sent, carried,
manufactured, assembled, possessed, sold, or advertised in
violation of section 2511 or section 2512 of this chapter [18 USC
ss 2511 or 2512] may be seized and forfeited to the United States.
All provisions of law relating to (1) the seizure, summary and
judicial forfeiture, and condemnation of vessels, vehicles,
merchandise, and baggage for violations of the customs laws
contained in title 19 of the United States Code [19 USC ss 1 et
seq.], (2) the disposition of such vessels, vehicles, merchandise,
and baggage or the proceeds from the sale thereof, (3) the
remission or mitigation of such forfeiture, (4) the compromise of
claims, and (5) the award of compensation to informers in respect
of such forfeitures, shall apply to seizures and forfeitures
incurred, or alleged to have been incurred, under the provisions
of this section, insofar as applicable and not inconsistent with
the provisions of this section; except that such duties as are
imposed upon the collector of customs or any other person with
respect to the seizure and forfeiture of vessels, vehicles,
merchandise, and baggage under the provisions of the customs laws
contained in title 19 of the United States Code [19 USC ss 1 et
seq.] shall be performed with respect to seizure and forfeiture of
electronic, mechanical, or other intercepting devices under this
section by such officers, agents, or other persons as may be
authorized or designated for that purpose by the Attorney General.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2514. [Repealed]
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2515. Prohibition of use as evidence of intercepted wire or oral
communications
Whenever any wire or oral communication has been intercepted, no
part of the contents of such communication and no evidence derived
therefrom may be received in evidence in any trial, hearing, or
other proceeding in or before any court, grand jury, department,
officer, agency, regulatory body, legislative committee, or other
authority of the United States, a State, or a political subdivision
thereof if the disclosure of that information would be in violation
of this chapter [18 USC ss 2510 et seq.].
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2516. Authorization for interception of wire, oral, or electron-
ic communications
(1) The Attorney General, Deputy Attorney General, Associate
Attorney General, or any Assistant Attorney General, any acting
Assistant Attorney General, or any Deputy Assistant Attorney
General in the Criminal Division specially designated by the
Attorney General, may authorize an application to a Federal judge
of competent jurisdiction for, and such judge may grant in
conformity with section 2518 of this chapter [18 USC s 2518] an
order authorizing or approving the interception of wire or oral
communications by the Federal Bureau of Investigation, or a Federal
agency having responsibility for the investigation of the offense
as to which the application is made, when such interception may
provide or has provided evidence of-
(a) any offense punishable by death or by imprisonment for more
than one year under sections 2274 through 2277 of title 42 of the
United States Code (relating to the enforcement of the Atomic
Energy Act of 1954), section 2284 of title 42 of the United States
Code (relating to sabotage of nuclear facilities or fuel), or
under the following chapters of this title: chapter 37 [18 USC ss
791 et seq.](relating to espionage), chapter 105 [18 USC ss 2151
et seq.] (relating to sabotage), chapter 115 [18 USC ss 2381 et
seq.] (relating to treason), chapter 102 [18 USC ss 2101 et seq.];
(relating to riots), chapter 65 [18 USC ss 1361 et seq.](relating
to malicious mischief), chapter 111 [18 USC ss 2271 et
seq.](relating to destruction of vessels), or chapter 81 [18 USC
ss 1621 et seq.] (relating to piracy);
(b) a violation of section 186 or section 501(c) of title 29,
United States Code [29 USC s 186 or 501(c)] (dealing with restric-
tions on payments and loans to labor organizations), or any
offense which involves murder, kidnapping, robbery, or extortion,
and which is punishable under this title [18 USC ss 1 et seq.];
(c) any offense which is punishable under the following sections
of this title [18 USC ss 1 et seq.] : section 201 (bribery of
public officials and witnesses), section 224 (bribery in sporting
contests), subsection (d), (e), (f), (g), (h), or (i) of section
844 (unlawful use of explosives), section 1084 (transmission of
wagering information), section 751 (relating to escape), sections
1503, 1512, and 1513 (influencing or injuring an officer, juror,
or witness generally), section 1510 (obstruction of criminal
investigations), section 1511 (obstruction of State or local law
enforcement), section 1751 (Presidential and Presidential staff
assassination, kidnaping, and assault), section 1951 (interference
with commerce by threats or violence), section 1952 (interstate and
foreign travel or transportation in aid of racketeering enter-
prises), section 1958 (relating to use of interstate commerce
facilities in the commission of murder for hire), section 1959
(relating to violent crimes in aid of racketeering activity),
section 1954 (offer, acceptance, or solicitation to influence
operations of employee benefit plan), section 1955 (prohibition of
business enterprises of gambling), section 1956 (laundering of
monetary instruments), section 1957 (relating to engaging in
monetary transactions in property derived from specified unlawful
activity), section 659 (theft from interstate shipment), section
664 (embezzlement from pension and welfare funds), section 1343
(fraud by wire, radio, or television), sections 2251 and 2252
(sexual exploitation of children), sections 2312, 2313, 2314, and
2315 (interstate transportation of stolen property), section 2321
(relating to trafficking in certain motor vehicles or motor vehicle
parts), section 1203 (relating to hostage taking), section 1029
(relating to fraud and related activity in connection with access
devices), section 3146 (relating to penalty for failure to appear),
section 3521(b)(3) (relating to witness relocation and assistance),
section 32 (relating to destruction of aircraft or aircraft
facilities), section 1963 (violations with respect to racketeer
influenced and corrupt organizations), section 115 (relating to
threatening or retaliating against a Federal official), the section
in chapter 65 relating to destruction of an energy facility, and
section 1341 (relating to mail fraud), or section 351 (violations
with respect to congressional, Cabinet, or Supreme Court assassina-
tions, kidnaping, and assault), section 831 (relating to prohibited
transactions involving nuclear materials), section 33 (relating to
destruction of motor vehicles or motor vehicle facilities), or
section 1992 (relating to wrecking trains);
(d) any offense involving counterfeiting punishable under
section 471, 472, or 473 of this title [18 USC s 471, 472, or 473];
(e) any offense involving fraud connected with a case under
title 11 [11 USC ss 1 et seq.] or the manufacture, importation,
receiving, concealment, buying, selling, or otherwise dealing in
narcotic drugs, marihuana, or other dangerous drugs, punishable
under any law of the United States;
(f) any offense including extortionate credit transactions under
sections 892, 893, or 894 of this title [18 USC s 892, 893, or
894];
(g) a violation of section 5322 of title 31, United States Code
[31 USC s 5322] (dealing with the reporting of currency transac-
tions);
(h) any felony violation of sections 2511 and 2512 (relating to
interception and disclosure of certain communications and to
certain intercepting devices) of this title;
(i) any felony violation of chapter 71 (relating to obscenity)
of this title [18 USC ss 1460 et seq.];
(j) any violation of section 1679a(c)(2) (relating to destruc-
tion of a natural gas pipeline) or subsection (i) or (n) of section
1472 (relating to aircraft piracy) of title 49, of the United
States Code;
(k) any criminal violation of section 2778 of title 22 (relating
to the Arms Export Control Act);
(l) the location of any fugitive from justice from an offense
described in this section; [or]
(m)any conspiracy to commit any of the foregoing offenses. [;]
[(n)] (m) any felony violation of sections 922 and 924 of title
18, United States Code (relating to firearms); and
[(o)] (n) any violation of section 5861 of the Internal Revenue
Code of 1986 [26 USC s 5861] (relating to firearms).
(2) The principal prosecuting attorney of any State, or the
principal prosecuting attorney of any political subdivision
thereof, if such attorney is authorized by a statute of that State
to make application to a State court judge of competent jurisdic-
tion for an order authorizing or approving the interception of wire
or oral communications, may apply to such judge for, and such judge
may grant in conformity with section 2518 of this chapter [18 USC
s 2518] and with the applicable State statute an order authoriz-
ing, or approving the interception of wire or oral communications
by investigative or law enforcement officers having responsibility
for the investigation of the offense as to which the application
is made, when such interception may provide or has provided
evidence of the commission of the offense of murder, kidnapping,
gambling, robbery, bribery, extortion, or dealing in narcotic
drugs, marihuana or other dangerous drugs, or other crime dangerous
to life, limb, or property, and punishable by imprisonment for more
than one year, designated in any applicable State statute authoriz-
ing such interception, or any conspiracy to commit any of the
foregoing offenses.
(3) Any attorney for the Government (as such term is defined for
the purposes of the Federal Rules of Criminal Procedure) may
authorize an application to a Federal judge of competent jurisdic-
tion for, and such judge may grant, in conformity with section 2518
of this title, an order authorizing or approving the interception
of electronic communications by an investigative or law enforcement
officer having responsibility for the investigation of the offense
as to which the application is made, when such interception may
provide or has provided evidence of any Federal felony.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2517. Authorization for disclosure and use of intercepted wire,
oral, or electronic communications
(1) Any investigative or law enforcement officer who, by any means
authorized by this chapter, has obtained knowledge of the contents
of any wire, oral, or electronic communication, or evidence derived
therefrom, may disclose such contents to another investigative or
law enforcement officer to the extent that such disclosure is
appropriate to the proper performance of the official duties of the
officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any means
authorized by this chapter, has obtained knowledge of the contents
of any wire, oral, or electronic communication or evidence derived
therefrom may use such contents to the extent such use is
appropriate to the proper performance of his official duties.
(3) Any person who has received, by any means authorized by this
chapter, any information concerning a wire, oral, or electronic
communication, or evidence derived therefrom intercepted in
accordance with the provisions of this chapter may disclose the
contents of that communication or such derivative evidence while
giving testimony under oath or affirmation in any proceeding held
under the authority of the United States or of any State or
political subdivision thereof.
(4) No otherwise privileged wire, oral, or electronic communication
intercepted in accordance with, or in violation of, the provisions
of this chapter shall lose its privileged character.
(5) When an investigative or law enforcement officer, while engaged
in intercepting wire, oral, or electronic communications in the
manner authorized herein, intercepts wire, oral, or electronic
communications relating to offenses other than those specified in
the order of authorization or approval, the contents thereof, and
evidence derived therefrom, may be disclosed or used as provided
in subsections (1) and (2) of this section. Such contents and any
evidence derived therefrom may be used under subsection (3) of this
section when authorized or approved by a judge of competent
jurisdiction where such judge finds on subsequent application that
the contents were otherwise intercepted in accordance with the
provisions of this chapter. Such application shall be made as soon
as practicable.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2518. Procedure for interception of wire, oral, or electronic
communications
(1) Each application for an order authorizing or approving the
interception of a wire, oral, or electronic communication under
this chapter shall be made in writing upon oath or affirmation to
a judge of competent jurisdiction and shall state the applicant's
authority to make such application. Each application shall include
the following information:
(a) the identity of the investigative or law enforcement
officer the application, and the officer authorizing the applica-
tion;
(b) a full and complete statement of the facts and circum-
stances relied upon by the applicant, to justify his belief that
an order should be issued, including (i) details as to the
particular offense that has been, is being, or is about to be
committed, (ii) except as provided in subsection (11), a particular
description of the nature and location of the facilities from which
or the place where the communication is to be intercepted, (iii)
a particular description of the type of communications sought to
be intercepted, (iv) the identity of the person, if known,
committing the offense and whose communications are to be inter-
cepted;
(c) a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous;
(d) a statement of the period of time for which the
interception is required to be maintained. If the nature of the
investigation is such that the authorization for interception
should not automatically terminate when the described type of
communication has been first obtained, a particular description of
facts establishing probable cause to believe that additional
communications of the same type will occur thereafter;
(e) a full and complete statement of the facts concerning
all previous applications known to the individual authorizing and
making the application, made to any judge for authorization to
intercept, or for approval of interceptions of, wire, oral, or
electronic communications involving any of the same persons,
facilities or places specified in the application, and the action
taken by the judge on each such application; and
(f) where the application is for the extension of an order,
a statement setting forth the results thus far obtained from the
interception, or a reasonable explanation of the failure to obtain
such results.
(2) The judge may require the applicant to furnish additional
testimony or documentary evidence in support of the application.
(3) Upon such application the judge may enter an ex parte order,
as requested or as modified, authorizing or approving interception
of wire, oral, or electronic communications within the territorial
jurisdiction of the court in which the judge is sitting (and
outside that jurisdiction but within the United States in the case
of a mobile interception device authorized by a Federal court
within such jurisdiction), if the judge determines on the basis of
the facts submitted by the applicant that
(a) there is probable cause for belief that an individual
is committing, has committed, or is about to commit a particular
offense enumerated in section 2516 of this chapter [18 USC s
2516];
(b) there is probable cause for belief that particular
communications concerning that offense will be obtained through
such interception;
(c) normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
to be too dangerous;
(d) except as provided in subsection (11), there is probable
cause for belief that the facilities from which, or the place
where, the wire, oral, or electronic communications are to be
intercepted are being used, or are about to be used, in connection
with the commission of such offense, or are leased to, listed in
the name of, or commonly used by such person.
(4) Each order authorizing or approving the interception of any
wire, oral, or electronic communication under this chapter shall
specify
(a) the identity of the person, if known, whose communica-
tions are to be intercepted;
(b) the nature and location of the communications facilities
as to which, or the place where, authority to intercept is granted;
(c) a particular description of the type of communication
sought to be intercepted, and a statement of the particular offense
to which it relates;
(d) the identity of the agency authorized to intercept the
communications, and of the person authorizing the application; and
(e) the period of time during which such interception is
authorized, including a statement as to whether or not the
interception shall automatically terminate when the described
communication has been first obtained. An order authorizing the
interception of a wire, oral, or electronic communication under
this chapter shall, upon request of the applicant, direct that a
provider of wire or electronic communication service, landlord,
custodian or other person shall furnish the applicant forthwith all
information, facilities, and technical assistance necessary to
accomplish the interception unobtrusively and with a minimum of
interference with the services that such service provider,
landlord, custodian, or person is according the person whose
communications are to be intercepted. Any provider of wire or
electronic communication service, landlord, custodian or other
person furnishing such facilities or technical assistance shall be
compensated therefor by the applicant for reasonable expenses
incurred in providing such facilities or assistance.
(5) No order entered under this section may authorize or approve
the interception of any wire, oral, or electronic communication for
any period longer than is necessary to achieve the objective of the
authorization, nor in any event longer than thirty days. Such
thirty-day period begins on the earlier of the day on which the
investigative or law enforcement officer first begins to conduct
an interception under the order or ten days after the order is
entered. Extensions of an order may be granted, but only upon
application for an extension made in accordance with subsection (1)
of this section and the court making the findings required by
subsection (3) of this section. The period of extension shall be
no longer than the authorizing judge deems necessary to achieve the
purposes for which it was granted and in no event for longer than
thirty days. Every order and extension thereof shall contain a
provision that the authorization to intercept shall be executed as
soon as practicable, shall be conducted in such a way as to
minimize the interception of communications not otherwise subject
to interception under this chapter [18 USC ss 2510 et seq.], and
must terminate upon attainment of the authorized objective, or in
any event in thirty days. In the event the intercepted communica-
tion is in a code or foreign language, and an expert in that
foreign language or code is not reasonably available during the
interception period, minimization may be accomplished as soon as
practicable after such interception. An interception under this
chapter may be conducted in whole or in part by Government
personnel, or by an individual operating under a contract with the
Government, acting under the supervision of an investigative or law
enforcement officer authorized to conduct the interception.
(6) Whenever an order authorizing interception is entered pursuant
to this chapter [18 USC ss 2510 et seq.], the order may require
reports to be made to the judge who issued the order showing what
progress has been made toward achievement of the authorized
objective and the need for continued interception. Such reports
shall be made at such intervals as the judge may require.
(7) Notwithstanding any other provision of this chapter [18 USC ss
2510 et seq.], any investigative or law enforcement officer,
specially designated by the Attorney General, the Deputy Attorney
General, the Associate Attorney General, or by the principal
prosecuting attorney of any State or subdivision thereof acting
pursuant to a statute of that State, who reasonably determines that
(a) an emergency situation exists that involves
(i) immediate danger of death or serious physical injury to
any person,
(ii) conspiratorial activities threatening the national
security interest, or
(iii) conspiratorial activities characteristic of organized
crime, that requires a wire, oral, or electronic communication to
be intercepted before an order authorizing such interception can,
with due diligence, be obtained, and
(b) there are grounds upon which an order could be entered under
this chapter [18 USC ss 2510 et seq.] to authorize such intercep-
tion, may intercept such wire, oral, or electronic communication
if an application for an order approving the interception is made
in accordance with this section within forty-eight hours after the
interception has occurred, or begins to occur. In the absence of
an order, such interception shall immediately terminate when the
communication sought is obtained or when the application for the
order is denied, whichever is earlier. In the event such applica-
tion for approval is denied, or in any other case where the
interception is terminated without an order having been issued, the
contents of any wire, oral, or electronic communication intercepted
shall be treated as having been obtained in violation of this
chapter [18 USC ss 2510 et seq.], and an inventory shall be served
as provided for in subsection (d) of this section on the person
named in the application.
(8)(a) The contents of any wire, oral, or electronic communication
intercepted by any means authorized by this chapter shall, if
possible, be recorded on tape or wire or other comparable device.
The recording of the contents of any wire, oral, or electronic
communication under this subsection shall be done in such way as
will protect the recording from editing or other alterations.
Immediately upon the expiration of the period of the order, or
extensions thereof, such recordings shall be made available to the
judge issuing such order and sealed under his directions. Custody
of the recordings shall be wherever the judge orders. They shall
not be destroyed except upon an order of the issuing or denying
judge and in any event shall be kept for ten years. Duplicate
recordings may be made for use or disclosure pursuant to the
provisions of subsections (1) and (2) of section 2517 of this
chapter for investigations. The presence of the seal provided for
by this subsection, or a satisfactory explanation for the absence
thereof, shall be a prerequisite for the use or disclosure of the
contents of any wire, oral, or electronic communication or evidence
derived therefrom under subsection (3) of section 2517.
(b) Applications made and orders granted under this chapter
[18 USC ss 2510 et seq.] shall be sealed by the judge. Custody of
the applications and orders shall be wherever the judge directs.
Such applications and orders shall be disclosed only upon a showing
of good cause before a judge of competent jurisdiction and shall
not be destroyed except on order of the issuing or denying judge,
and in any event shall be kept for ten years.
(c) Any violation of the provisions of this subsection may
be punished as contempt of the issuing or denying judge.
(d) Within a reasonable time but not later than ninety days
after the filing of an application for an order of approval under
section 2518(7)(b) [18 USC s 2518(7)(b)] which is denied or the
termination of the period of an order or extensions thereof, the
issuing or denying judge shall cause to be served, on the persons
named in the order or the application, and such other parties to
intercepted communications as the judge may determine in his
discretion that is in the interest of justice, an inventory which
shall include notice of
(1) the fact of the entry of the order or the application;
(2) the date of the entry and the period of authorized,
approved or disapproved interception, or the denial of the
application; and
(3) the fact that during the period wire or oral communica-
tions were or were not intercepted.
The judge, upon the filing of a motion, may in his discre-
tion make available to such person or his counsel for inspection
such portions of the intercepted communications, applications and
orders as the judge determines to be in the interest of justice.
On an ex parte showing of good cause to a judge of competent
jurisdiction the serving of the inventory required by this
subsection may be postponed.
(9) The contents of any wire, oral, or electronic communication
intercepted pursuant to this chapter or evidence derived therefrom
shall not be received in evidence or otherwise disclosed in any
trial, hearing, or other proceeding in a Federal or State court
unless each party, not less than ten days before the trial,
hearing, or proceeding, has been furnished with a copy of the court
order, and accompanying application, under which the interception
was authorized or approved. This ten-day period may be waived by
the judge if he finds that it was not possible to furnish the
party with the above information ten days before the trial,
hearing, or proceeding and that the party will not be prejudiced
by the delay in receiving such information.
(10)(a) Any aggrieved person in any trial, hearing, or proceeding
in or before any court, department, officer, agency, regulatory
body, or other authority of the United States, a State, or a
political subdivision thereof, may move to suppress the contents
of any wire or oral communication intercepted pursuant to this
chapter [18 USC ss 2510 et seq.], or evidence derived therefrom,
on the grounds that
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it
was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the
order of authorization or approval.
Such motion shall be made before the trial, hearing, or
proceeding unless there was no opportunity to make such motion or
the person was not aware of the grounds of the motion. If the
motion is granted, the contents of the intercepted wire or oral
communication, or evidence derived therefrom, shall be treated as
having been obtained in violation of this chapter [18 USC ss 2510
et seq.]. The judge, upon the filing of such motion by the
aggrieved person, may in his discretion make available to the
aggrieved person or his counsel for inspection such portions of
the intercepted communication or evidence derived therefrom as the
judge determines to be in the interests of justice.
(b) In addition to any other right to appeal, the United
States shall have the right to appeal from an order granting a
motion to suppress made under paragraph (a) of this subsection,
or the denial of an application for an order of approval, if the
United States attorney shall certify to the judge or other official
granting such motion or denying such application that the appeal
is not taken for purposes of delay. Such appeal shall be taken
within thirty days after the date the order was entered and shall
be diligently prosecuted.
(c) The remedies and sanctions described in this chapter
with respect to the interception of electronic communications are
the only judicial remedies and sanctions for nonconstitutional
violations of this chapter involving such communications.
(11) The requirements of subsections (1)(b)(ii) and (3)(d) of this
section relating to the specification of the facilities from which,
or the place where, the communication is to be intercepted do not
apply if
(a) in the case of an application with respect to the
interception of an oral communication
(i) the application is by a Federal investigative or
law enforcement officer and is approved by the Attorney General,
the Deputy Attorney General, the Associate Attorney General, an
Assistant Attorney General, or an acting Assistant Attorney
General;
(ii) the application contains a full and complete
statement as to why such specification is not practical and
identifies the person committing the offense and whose communica-
tions are to be intercepted; and
(iii) the judge finds that such specification is not
practical; and
(b) in the case of an application with respect to a wire
or electronic communication
(i) the application is by a Federal investigative or
law enforcement officer and is approved by the Attorney General,
the Deputy Attorney General, the Associate Attorney General, an
Assistant Attorney General, or an acting Assistant Attorney
General;
(ii) the application identifies the person believed
to be committing the offense and whose communications are to be
intercepted and the applicant makes a showing of a purpose, on the
part of that person, to thwart interception by changing facilities;
and
(iii) the judge finds that such purpose has been
adequately shown. (12) An interception of a communication under an
order with respect to which the requirements of subsections
(1)(b)(ii) and (3)(d) of this section do not apply by reason of
subsection (11) shall not begin until the facilities from which,
or the place where, the communication is to be intercepted is
ascertained by the person implementing the interception order. A
provider of wire or electronic communications service that has
received an order as provided for in subsection (11)(b) may move
the court to modify or quash the order on the ground that its
assistance with respect to the interception cannot be performed in
a timely or reasonable fashion. The court, upon notice to the
government, shall decide such a motion expeditiously.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2519. Reports concerning intercepted wire, oral, or electronic
communications
(1) Within thirty days after the expiration of an order (or each
extension thereof) entered under section 2518 [18 USC s 2518], or
the denial of an order approving an interception, the issuing or
denying judge shall report to the Administrative Office of the
United States Courts
(a) the fact that an order or extension was applied for;
(b) the kind of order or extension applied for (including
whether or not the order was an order with respect to which the
requirements of sections 2518(1)(b)(ii) and 2518(3)(d) of this
title did not apply by reason of section 2518(11) of this title);
(c) the fact that the order or extension was granted as
applied for, was modified, or was denied;
(d) the period of interceptions authorized by the order, and
the number and duration of any extensions of the order;
(e) the offense specified in the order or application, or
extension of an order;
(f) the identity of the applying investigative or law
enforcement officer and agency making the application and the
person authorizing the application; and
(g) the nature of the facilities from which or the place where
communications were to be intercepted.
(2) In January of each year the Attorney General, an Assistant
Attorney General specially designated by the Attorney General, or
the principal prosecuting attorney of a State, or the principal
prosecuting attorney for any political subdivision of a State,
shall report to the Administrative Office of the United States
Courts
(a) the information required by paragraphs (a) through (g)
of subsection (1) of this section with respect to each application
for an order or extension made during the preceding calendar year;
(b) a general description of the interceptions made under
such order or extension, including (i) the approximate nature and
frequency of incriminating communications intercepted, (ii) the
approximate nature and frequency of other communications inter-
cepted, (iii) the approximate number of persons whose communica-
tions were intercepted, and (iv) the approximate nature, amount,
and cost of the manpower and other resources used in the intercep-
tions;
(c) the number of arrests resulting from interceptions made
under such order or extension, and the offenses for which arrests
were made;
(d) the number of trials resulting from such interceptions;
(e) the number of motions to suppress made with respect to
such interceptions, and the number granted or denied;
(f) the number of convictions resulting from such intercep-
tions and the offenses for which the convictions were obtained and
a general assessment of the importance of the interceptions; and
(g) the information required by paragraphs (b) through (f)
of this subsection with respect to orders or extensions obtained
in a preceding calendar year.
(3) In April of each year the Director of the Administrative Office
of the United States Courts shall transmit to the Congress a full
and complete report concerning the number of applications for
orders authorizing or approving the interception of wire, oral, or
electronic communications pursuant to this chapter and the number
of orders and extensions granted or denied pursuant to this chapter
during the preceding calendar year. Such report shall include a
summary and analysis of the data required to be filed with the
Administrative Office by subsections (1) and (2) of this section.
The Director of the Administrative Office of the United States
Courts is authorized to issue binding regulations dealing with the
content and form of the reports required to be filed by subsections
(1) and (2) of this section.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2520. Recovery of civil damages authorized
(a) In general. Except as provided in section 2511(2)(a)(ii), any
person whose wire, oral, or electronic communication is inter-
cepted, disclosed, or intentionally used in violation of this
chapter may in a civil action recover from the person or entity
which engaged in that violation such relief as may be appropriate.
(b) Relief. In an action under this section, appropriate relief
includes
(1) such preliminary and other equitable
or declaratory relief as may be appropriate;
(2) damages under subsection (c) and punitive damages in
appropriate cases; and
(3) a reasonable attorney's fee and other litigation costs
reasonably incurred.
(c) Computation of damages.
(1) In an action under this section,
if the conduct in violation of this chapter, is the private
viewing of a private satellite video communication that is not
scrambled or encrypted or if the communication is a radio communi-
cation that is transmitted on frequencies allocated under subpart
D of part 74 of the rules of the Federal Communications Commission
that is not scrambled or encrypted and the conduct is not for a
tortious or illegal purpose or for purposes of direct or indirect
commercial advantage or private commercial gain, then the court
shall assess damages as follows:
(A) If the person who engaged
in that conduct has not previously been enjoined under section
2511(5) and has not been found liable in a prior civil action under
this section, the court shall assess the greater of the sum of
actual damages suffered by the plaintiff, or statutory damages of
not less than $50 and not more than $500.
(B) If, on one prior occasion, the person who engaged in that
conduct has been enjoined under section 2511(5) or has been found
liable in a civil action under this section, the court shall assess
the greater of the sum of actual damages suffered by the plaintiff,
or statutory damages of not less than $100 and not more than $1000.
(2) In any other action under this section, the court may assess
as damages whichever is the greater of
(A) the sum of the actual damages suffered by the plaintiff
and any profits made by the violator as a result of the violation;
or
(B) statutory damages of whichever is the greater of $100 a
day for each day of violation or $10,000.
(d) Defense. A good faith reliance on
(1) a court warrant or order, a grand jury subpoena, a legisla-
tive authorization, or a statutory authorization;
(2) a request of an investigative or law enforcement officer
under section 2518(7) of this title; or
(3) a good faith determination that section 2511(3) of this
title permitted the conduct complained of; is a complete defense
against any civil or criminal action brought under this chapter or
any other law.
(e) Limitation. A civil action under this section may not be
commenced later than two years after the date upon which the
claimant first has a reasonable opportunity to discover the
violation.
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
s 2521. Injunction against illegal interception
Whenever it shall appear that any person is engaged or is about to
engage in any act which constitutes or will constitute a felony
violation of this chapter [18 USC ss 2510 et seq.], the Attorney
General may initiate a civil action in a district court of the
United States to enjoin such violation. The court shall proceed as
soon as practicable to the hearing and determination of such an
action, and may, at any time before final determination, enter such
a restraining order or prohibition, or take such other action, as
is warranted to prevent a continuing and substantial injury to the
United States or to any person or class of persons for whose
protection the action is brought. A proceeding under this section
is governed by the Federal Rules of Civil Procedure, except that,
if an indictment has been returned against the respondent,
discovery is governed by the Federal Rules of Criminal Procedure.".
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2701. Unlawful access to stored communications
(a) Offense. Except as provided in subsection (c) of this section
whoever
(1) intentionally accesses without authorization a
facility through which an electronic communication service is
provided; or
(2) intentionally exceeds an authorization to access that
facility; and thereby obtains, alters, or prevents authorized
access to a wire or electronic communication while it is in
electronic storage in such system shall be punished
as provided in subsection (b) of this section.
(b) Punishment. The punishment for an offense under subsection (a)
of this section is-
(1) if the offense is committed for purposes of commercial
advantage, malicious destruction or damage, or private commercial
gain
(A) a fine of not more than $ 250,000 or imprisonment for
not more than one year, or both, in the case of a first offense
under this subparagraph; and
(B) a fine under this title or
imprisonment for not more than two years, or both, for any
subsequent offense under this subparagraph; and
(2) a fine of not more than $ 5,000 or imprisonment for not
more than six months, or both, in any other case.
(c) Exceptions. Subsection (a) of this section does not apply with
respect to conduct authorized-
(1) by the person or entity providing a wire or electronic
communications service;
(2) by a user of that service with respect to a communication
of or intended for that user; or
(3) in section 2703, 2704 or 2518 of this title.
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2702. Disclosure of contents
(a) Prohibitions. Except as provided in subsection (b)-
(1) a person or entity providing an electronic communication
service to the public shall not knowingly divulge to any person or
entity the contents of a communication while in electronic storage
by that service; and
(2) a person or entity providing remote computing service to
the public shall not knowingly divulge to any person or entity the
contents of any communication which is carried or maintained on
that service-
(A) on behalf of, and received by means of electronic
transmission from (or created by means of computer processing of
communications received by means of electronic transmission from),
a subscriber or customer of such service; and
(B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the provider
is not authorized to access the contents of any such communications
for purposes of providing any services other than storage or
computer processing.
(b) Exceptions. A person or entity may divulge the contents of a
communication-
(1) to an addressee or intended recipient of such
communication or an agent of such addressee or intended recipient;
(2) as otherwise authorized in section 2517, 2511(2)(a), or
2703 of this title;
(3) with the lawful consent of the originator or an addressee
or intended recipient of such communication, or the subscriber in
the case of remote computing service;
(4) to a person employed or authorized or whose facilities are
used to forward such communication to its destination;
(5) as may be necessarily incident to the rendition of the
service or to the protection of the rights or property of the
provider of that service; or
(6) to a law enforcement agency,
if such contents-
(A) were inadvertently obtained by the service provider; and
(B) appear to pertain to the commission of a crime.
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2703. Requirements for governmental access
(a) Contents of electronic communications in electronic storage.
A governmental entity may require the disclosure by a provider of
electronic communication service of the contents of an electronic
communication, that is in electronic storage in an electronic
communications system for one hundred and eighty days or less, only
pursuant to a warrant issued under the Federal Rules of Criminal
Procedure or equivalent State warrant. A governmental entity may
require the disclosure by a provider of electronic communications
services of the contents of an electronic communication that has
been in electronic storage in an electronic communications system
for more than one hundred and eighty days by the means available
under subsection (b) of this section.
(b) Contents of electronic communications in a remote computing
service.
(1) A governmental entity may require a provider of remote
computing service to disclose the contents of any electronic
communication to which this paragraph is made applicable by
paragraph (2) of this subsection-
(A) without required notice to the subscriber or customer,
if the governmental entity obtains a warrant issued under the
Federal Rules of Criminal Procedure or equivalent State warrant;
or
(B) with prior notice from the governmental entity to the
subscriber or customer if the governmental entity-
(i) uses an administrative subpoena authorized by a
Federal or State statute or a Federal or State grand jury or trial
subpoena; or
(ii) obtains a court order for such disclosure
under subsection (d) of this section; except that delayed notice
may be given pursuant to section 2705 of this title.
(2) Paragraph (1) is applicable with respect to any electronic
communication that is held or maintained on that service-
(A) on behalf of, and received by means of electronic
transmission from (or created by means of computer processing of
communications received by means of electronic transmission from),
a subscriber or customer of such remote computing service; and
(B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the provider
is not authorized to access the contents of any such communications
for purposes of providing any services other than storage or
computer processing.
(c) Records concerning electronic communication service or remote
computing service.
(1)(A) Except as provided in subparagraph (B), a provider of
electronic communication service or remote computing service may
disclose a record or other information pertaining to a subscriber
to or customer of such service (not including the contents of
communications covered by subsection (a) or (b) of this section)
to any person other than a governmental entity.
(B) A provider of electronic communication service or remote
computing service shall disclose a record or other information
pertaining to a subscriber to or customer of such service (not
including the contents of communications covered by subsection (a)
or (b) of this section) to a governmental entity only when the
governmental entity-
(i) uses an administrative subpoena authorized by a
Federal or State statute, or a Federal or State grand jury
subpoena;
(ii) obtains a warrant issued under the Federal Rules of
Criminal Procedure or equivalent State warrant;
(iii) obtains a court order for such disclosure under
subsection (d) of this section; or
(iv) has the consent of the subscriber or customer to
such disclosure.
(2) A governmental entity receiving records or information
under this subsection is not required to provide notice to a
subscriber or customer.
(d) Requirements for court order. A court order for disclosure
under subsection (b) or (c) of this section may be issued by any
court that is a court of competent jurisdiction set forth in
section 3126(2)(A) of this title and shall issue only if the
governmental entity shows that there is reason to believe the
contents of a wire or electronic communication, or the records or
other information sought, are relevant to a legitimate law
enforcement inquiry. In the case of a State governmental authority,
such a court order shall not issue if prohibited by the law of such
State. A court issuing an order pursuant to this section, on a
motion made promptly by the service provider, may quash or modify
such order, if the information or records requested are unusually
voluminous in nature or compliance with such order otherwise would
cause an undue burden on such provider.
(e) No cause of action against a provider disclosing information
under this chapter [18 USC ss 2701 et seq.]. No cause of action
shall lie in any court against any provider of wire or electronic
communication service, its officers, employees, agents, or other
specified persons for providing information, facilities, or
assistance in accordance with the terms of a court order, warrant,
subpoena, or certification under this chapter [18 USC ss 2701 et
seq.].
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2704. Backup preservation
(a) Backup preservation.
(1) A governmental entity acting under section 2703(b)(2) may
include in its subpoena or court order a requirement that the
service provider to whom the request is directed create a backup
copy of the contents of the electronic communications sought in
order to preserve those communications. Without notifying the
subscriber or customer of such subpoena or court order, such
service provider shall create such backup copy as soon as
practicable consistent with its regular business practices and
shall confirm to the governmental entity that such backup copy has
been made. Such backup copy shall be created within two business
days after receipt by the service provider of the subpoena or court
order.
(2) Notice to the subscriber or customer shall be made by the
governmental entity within three days after receipt of such
confirmation, unless such notice is delayed pursuant to section
2705(a).
(3) The service provider shall not destroy such backup copy
until the later of
(A) the delivery of the information; or
(B) the resolution of any proceedings (including appeals of
any proceeding) concerning the government's subpoena or court
order.
(4) The service provider shall release such backup copy to the
requesting governmental entity no sooner than fourteen days after
the governmental entity's notice to the subscriber or customer if
such service provider
(A) has not received notice from the
subscriber or customer that the subscriber or customer has
challenged the governmental entity's request; and
(B) has not initiated proceedings to challenge the request
of the governmental entity.
(5) A governmental entity may seek to require the creation of
a backup copy under subsection (a)(1) of this section if in its
sole discretion such entity determines that there is reason to
believe that notification under section 2703 of this title of the
existence of the subpoena or court order may result in destruction
of or tampering with evidence. This determination is not subject
to challenge by the subscriber or customer or service provider.
(b) Customer challenges.
(1) Within fourteen days after notice by the governmental
entity to the subscriber or customer under subsection (a)(2) of
this section, such subscriber or customer may file a motion to
quash such subpoena or vacate such court order, with copies served
upon the governmental entity and with written notice of such
challenge to the service provider. A motion to vacate a court order
shall be filed in the court which issued such order. A motion to
quash a subpoena shall be filed in the appropriate United States
district court or State court. Such motion or application shall
contain an affidavit or sworn statement
(A) stating that the applicant is a customer or subscriber
to the service from which the contents of electronic communications
maintained for him have been sought; and
(B) stating the applicant's reasons for believing that the
records sought are not relevant to a legitimate law enforcement
inquiry or that there has not been substantial compliance with the
provisions of this chapter in some other respect.
(2) Service shall be made under this section upon a
governmental entity by delivering or mailing by registered or
certified mail a copy of the papers to the person, office, or
department specified in the notice which the customer has received
pursuant to this chapter [18 USC ss 2701 et seq.]. For the purposes
of this section, the term "delivery" has the meaning given that
term in the Federal Rules of Civil Procedure.
(3) If the court finds that the customer has complied with
paragraphs (1) and (2) of this subsection, the court shall order
the governmental entity to file a sworn response, which may be
filed in camera if the governmental entity includes in its response
the reasons which make in camera review appropriate. If the court
is unable to determine the motion or application on the basis of
the parties' initial allegations and response, the court may
conduct such additional proceedings as it deems appropriate. All
such proceedings shall be completed and the motion or application
decided as soon as practicable after the filing of the governmental
entity's response.
(4) If the court finds that the applicant is not the subscriber
or customer for whom the communications sought by the governmental
entity are maintained, or that there is a reason to believe that
the law enforcement inquiry is legitimate and that the communica-
tions sought are relevant to that inquiry, it shall deny the motion
or application and order such process enforced. If the court finds
that the applicant is the subscriber or customer for whom the
communications sought by the governmental entity are maintained,
and that there is not a reason to believe that the communications
sought are relevant to a legitimate law enforcement inquiry, or
that there has not been substantial compliance with the provisions
of this chapter, it shall order the process quashed.
(5) A court order denying a motion or application under this
section shall not be deemed a final order and no interlocutory
appeal may be taken therefrom by the customer.
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2705. Delayed notice
(a) Delay of notification.
(1) A governmental entity acting under
section 2703(b) of this title may
(A) where a court order is sought, include in the
application a request, which the court shall grant, for an order
delaying the notification required under section 2703(b) of this
title for a period not to exceed ninety days, if the court
determines that there is reason to believe that notification of the
existence of the court order may have an adverse result described
in paragraph (2) of this subsection; or
(B) where an administrative subpoena authorized by a Federal
or State statute or a Federal or State grand jury subpoena is
obtained, delay the notification required under section 2703(b) of
this title for a period not to exceed ninety days upon the
execution of a written certification of a supervisory official that
there is reason to believe that notification of the existence of
the subpoena may have an adverse result described in paragraph (2)
of this subsection.
(2) An adverse result for the purposes of paragraph (1) of this
subsection is
(A) endangering the life or physical safety of an
individual;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
(3) The governmental entity shall maintain a true copy of
certification under paragraph (1)(B).
(4) Extensions of the delay of notification provided in section
2703 of up to ninety days each may be granted by the court upon
application, or by certification by a governmental entity, but only
in accordance with subsection (b) of this section.
(5) Upon expiration of the period of delay of notification
under paragraph (1) or (4) of this subsection, the governmental
entity shall serve upon, or deliver by registered or first-class
mail to, the customer or subscriber a copy of the process or
request together with notice that
(A) states with reasonable specificity the nature of the law
enforcement inquiry; and
(B) informs such customer or subscriber
(i) that information maintained for such customer or
subscriber by the service provider named in such process or request
was supplied to or requested by that governmental authority and the
date on which the supplying or request took place;
(ii) that notification of such customer or subscriber
was delayed;
(iii) what governmental entity or court made the
certification or determination pursuant to which that delay was
made; and
(iv) which provision of this chapter allowed such delay.
(6) As used in this subsection, the term "supervisory official"
means the investigative agent in charge or assistant investigative
agent in charge or an equivalent of an investigating agency's
headquarters or regional office, or the chief prosecuting attorney
or the first assistant prosecuting attorney or an equivalent of a
prosecuting attorney's headquarters or regional office.
(b) Preclusion of notice to subject of governmental access. A
governmental entity acting under section 2703, when it
is not required to notify the subscriber or customer under section
2703(b)(1), or to the extent that it may delay such notice pursuant
to subsection (a) of this section, may apply to a court for an
order commanding a provider of electronic communications service
or remote computing service to whom a warrant, subpoena, or court
order is directed, for such period as the court deems appropriate,
not to notify any other person of the existence of the warrant,
subpoena, or court order. The court shall enter such an order if
it determines that there is reason to believe that notification of
the existence of the warrant, subpoena, or court order will result
in
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly
delaying a trial.
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2706. Cost reimbursement
(a) Payment. Except as otherwise provided in subsection (c), a
governmental entity obtaining the contents of communications,
records, or other information under section 2702, 2703, or 2704 of
this title shall pay to the person or entity assembling or
providing such information a fee for reimbursement for such costs
as are reasonably necessary and which have been directly incurred
in searching for, assembling, reproducing, or otherwise providing
such information. Such reimbursable costs shall include any costs
due to necessary disruption of normal operations of any electronic
communication service or remote computing service in which such
information may be stored.
(b) Amount. The amount of the fee provided by subsection (a) shall
be as mutually agreed by the governmental entity and the person or
entity providing the information, or, in the absence of agreement,
shall be as determined by the court which issued the order for
production of such information (or the court before which a
criminal prosecution relating to such information would be brought,
if no court order was issued for production of the information).
(c) Exception. The requirement of subsection (a) of this section
does not apply with respect to records or other information
maintained by a communications common carrier that relate to
telephone toll records and telephone listings obtained under
section 2703 of this title. The court may, however, order a payment
as described in subsection (a) if the court determines the
information required is unusually voluminous in nature or otherwise
caused an undue burden on the provider.
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2707. Civil action
(a) Cause of action. Except as provided in section 2703(e), any
provider of electronic communication service, subscriber, or
customer aggrieved by any violation of this chapter in which the
conduct constituting the violation is engaged in with a knowing or
intentional state of mind may, in a civil action, recover from the
person or entity which engaged in that violation such relief as
may be appropriate.
(b) Relief. In a civil action under this section, appropriate
relief includes
(1) such preliminary and other
equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c); and
(3) a reasonable attorney's fee and other litigation costs
reasonably incurred.
(c) Damages. The court may assess as damages in a civil action
under this section the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a result of the
violation, but in no case shall a person entitled to recover
receive less than the sum of $1,000.
(d) Defense. A good faith reliance on
(1) a court warrant or order, a grand jury subpoena, a legisla-
tive authorization, or a statutory authorization;
(2) a request of an investigative or law enforcement officer
under section 2518(7) of this title; or
(3) a good faith determination that section 2511(3) of this
title permitted the conduct complained of; is a complete defense
to any civil or criminal action brought under this chapter [18 USC
ss 2701 et seq.] or any other law.
(e) Limitation. A civil action under this section may not be
commenced later than two years after the date upon which the
claimant first discovered or had a reasonable opportunity to
discover the violation.
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2708. Exclusivity of remedies
The remedies and sanctions described in this chapter [18 USC ss
2701 et seq.] are the only judicial remedies and sanctions for
nonconstitutional violations of this chapter [18 USC ss 2701 et
seq.].
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2709. Counterintelligence access to telephone toll and transac-
tional records
(a) Duty to provide. A wire or electronic communication service
provider shall comply with a request for subscriber information and
toll billing records information, or electronic communication
transactional records in its custody or possession made by the
Director of the Federal Bureau of Investigation under subsection
(b) of this section.
(b) Required certification. The Director of the Federal Bureau of
Investigation (or an individual within the Federal Bureau of
Investigation designated for this purpose by the Director) may
request any such information and records if the Director (or the
Director's designee) certifies in writing to the wire or electronic
communication service provider to which the request is made that
(1) the information sought is relevant to an authorized foreign
counterintelligence investigation; and
(2) there are specific and articulable facts giving reason to
believe that the person or entity to whom the information sought
pertains is a foreign power or an agent of a foreign power as
defined in section 101 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801).
(c) Prohibition of certain disclosure. No wire or electronic
communication service provider, or officer, employee, or agent
thereof, shall disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or
records under this section.
(d) Dissemination by bureau. The Federal Bureau of Investigation
may disseminate information and records obtained under this section
only as provided in guidelines approved by the Attorney General for
foreign intelligence collection and foreign counterintelligence
investigations conducted by the Federal Bureau of Investigation,
and, with respect to dissemination to an agency of the United
States, only if such information is clearly relevant to the
authorized responsibilities of such agency.
(e) Requirement that certain Congressional bodies be informed. On
a semiannual basis the Director of the Federal Bureau of
Investigation shall fully inform the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate concerning all requests
made under subsection (b) of this section.
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2710. Wrongful disclosure of video tape rental or sale records
(a) Definitions. For purposes of this section-
(1) the term "consumer" means any renter, purchaser, or
subscriber of goods or services from a video tape service provider;
(2) the term "ordinary course of business" means only debt
collection activities, order fulfillment, request processing, and
the transfer of ownership;
(3) the term "personally identifiable informa-
tion" includes information which identifies a person as having
requested or obtained specific video materials or services from
a video tape service provider; and
(4) the term "video tape service provider" means any person,
engaged in the business, in or affecting interstate or foreign
commerce, of rental, sale, or delivery of prerecorded video
cassette tapes or similar audio visual materials, or any person
or other entity to whom a disclosure is made under subparagraph
(D) or (E) of subsection (b)(2), but only with respect to the
information contained in the disclosure.
(b) Video tape rental and sale records.
(1) A video tape service
provider who knowingly discloses, to any person, personally
identifiable information concerning any consumer of such provider
shall be liable to the aggrieved person for the relief provided in
subsection (d).
(2) A video tape service provider may disclose personally
identifiable information concerning any consumer-
(A) to the consumer;
(B) to any person with the informed, written consent of the
consumer given at the time the disclosure is sought;
(C) to a law enforcement agency pursuant to a warrant issued
under the Federal Rules of Criminal Procedure, an equivalent State
warrant, a grand jury subpoena, or a court order;
(D) to any person if the disclosure is solely of the names and
addresses of consumers and if-
(i) the video tape service provider has provided the
consumer with the opportunity, in a clear and conspicuous manner,
to prohibit such disclosure; and
(ii) the disclosure does not identify the title,
description, or subject matter of any video tapes or other audio
visual material; however, the subject matter of such materials may
be disclosed if the disclosure is for the exclusive use of
marketing goods and services directly to the consumer;
(E) to any person if the disclosure is incident to
the ordinary course of business of the video tape service provider;
or
(F) pursuant to a court order, in a civil proceeding upon a
showing of compelling need for the information that cannot be
accommodated by any other means, if-
(i) the consumer is given reasonable notice, by the person
seeking the disclosure, of the court proceeding relevant to the
issuance of the court order; and
(ii) the consumer is afforded the opportunity to appear
and contest the claim of the person seeking the disclosure.
If an order is granted pursuant to subparagraph (C) or (F),
the court shall impose appropriate safeguards against unauthorized
disclosure.
(3) Court orders authorizing disclosure under subparagraph (C)
shall issue only with prior notice to the consumer and only if the
law enforcement agency shows that there is probable cause to
believe that the records or other information sought are relevant
to a legitimate law enforcement inquiry. In the case of a State
government authority, such a court order shall not issue if
prohibited by the law of such State. A court issuing an order
pursuant to this section, on a motion made promptly by the video
tape service provider, may quash or modify such order if the
information or records requested are unreasonably voluminous in
nature or if compliance with such order otherwise would cause an
unreasonable burden on such provider.
(c) Civil action.
(1) Any person aggrieved by any act of a person
in violation of this section may bring a civil action in a United
States district court.
(2) The court may award-
(A) actual damages but not less than liquidated damages in
an amount of $ 2,500;
(B) punitive damages;
(C) reasonable attorneys' fees and other litigation costs
reasonably incurred; and
(D) such other preliminary and equitable relief as the
court determines to be appropriate.
(3) No action may be brought under this subsection unless such
action is begun within 2 years from the date of the act complained
of or the date of discovery.
(4) No liability shall result from lawful disclosure permitted
by this section.
(d) Personally identifiable information. Personally identifiable
information obtained in any manner other than as provided in this
section shall not be received in evidence in any trial, hearing,
arbitration, or other proceeding in or before any court, grand
jury, department, officer, agency, regulatory body, legislative
committee, or other authority of the United States, a State, or a
political subdivision of a State.
(e) Destruction of old records. A person subject to this section
shall destroy personally identifiable information as soon as
practicable, but no later than one year from the date the informa-
tion is no longer necessary for the purpose for which it was
collected and there are no pending requests or orders for access
to such information under subsection (b)(2) or (c)(2) or pursuant
to a court order.
(f) Preemption. The provisions of this section preempt only the
provisions of State or local law that require disclosure prohibited
by this section.
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
s 2711. Definitions for chapter
As used in this chapter [18 USC ss 2701 et seq.]-
(1) the terms defined in section 2510 of this title have,
respectively, the definitions given such terms in that section; and
(2) the term "remote computing service" means the provision to
the public of computer storage or processing services by means of
an electronic communications system.
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