In response to a number of requests from different sources, Shari Steele
has compiled and I've edited and formatted an ASCII version of the Electronic
Communications Privacy Act, including all amendments to the original Wiretap
Act (18 USC 2510 et seq.), the complete chapter on stored communications
(18 USC 2701 et seq.), and the amendments to pen-register and trap-and-trace
procedures (18 USC 3121 et seq.)
Please let me know if you catch any errors or typos.
--Mike Godwin
Online Counsel
Electronic Frontier Foundation
mnemonic@eff.org
--------------
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
Sec. 2510. Definitions
As used in this chapter --
(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 communications or communications affecting interstate or
foreign commerce and such term includes any electronic storage of such
communication, 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 subscriber 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 corporation;
(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, 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, electromagnetic, 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.
Sec. 2511. Interception and disclosure of wire, oral, or electronic
communications prohibited
(1) Except as otherwise specifically provided in this chapter 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 information 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 monitoring 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 communications 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 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 information,
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 Commission, 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 intercepted 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 or section 705 or
706 of the Communications Act of 1934 , 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, as
authorized by that Act.
(f) Nothing contained in this chapter or chapter 121, or section 705 of
the Communications Act of 1934, shall be deemed to affect the acquisition
by the United States Government of foreign intelligence information from
international or foreign communications, or foreign intelligence
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, and procedures in this
chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the
exclusive means by which electronic surveillance, as defined in section
101 of such Act, 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 transmitted--
(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 fraudulent, 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 destination; 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 transmission that is not
encrypted or scrambled and that is transmitted--
(i) to a broadcasting station for purposes of retransmission to the
general public; or
(ii) as an audio subcarrier intended for redistribution to facilities
open to the public, but not including data transmissions 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.
Sec. 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 interstate 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 surreptitious 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 interception 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,
shall be fined not more than $ 10,000 or imprisoned not more than five
years, or both.
(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 subdivision 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.
Sec. 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 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, (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 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.
[Sec. 2514. Repealed. Pub.L. 91-452, Title II, Sec. 227(a), Oct. 15, 1970,
84 Stat. 930]
Sec. 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.
Sec. 2516. Authorization for interception of wire, oral, or electronic
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 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 (relating to espionage), chapter 105 (relating to
sabotage), chapter 115 (relating to treason), chapter 102 (relating to
riots), chapter 65 (relating to malicious mischief), chapter 111 (relating
to destruction of vessels), or chapter 81 (relating to piracy);
(b) a violation of section 186 or section 501(c) of title 29, United
States Code (dealing with restrictions on payments and loans to labor
organizations), or any offense which involves murder, kidnapping, robbery,
or extortion, and which is punishable under this title;
(c) any offense which is punishable under the following sections of
this title: section 201 (bribery of public officials and witnesses),
section 215 (relating to bribery of bank officials), section 224 (bribery
in sporting contests), subsection (d), (e), (f), (g), (h), or (i) of
section 844 (unlawful use of explosives), section 1032 (relating to
concealment of assets), section 1084 (transmission of wagering
information), section 751 (relating to escape), section 1014 (relating to
loans and credit applications generally; renewals and discounts), 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 enterprises), 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),
section 1344 (relating to bank fraud), 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), and section 1341 (relating to
mail fraud), or section 351 (violations with respect to congressional,
Cabinet, or Supreme Court assassinations, kidnaping, and assault), section
831 (relating to prohibited transactions involving nuclear materials),
section 33 (relating to destruction of motor vehicles or motor vehicle
facilities), section 175 (relating to biological weapons), or section 1992
(relating to wrecking trains);
(d) any offense involving counterfeiting punishable under section 471,
472, or 473 of this title;
(e) any offense involving fraud connected with a case under title 11
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;
(g) a violation of section 5322 of title 31, United States Code
(dealing with the reporting of currency transactions);
(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;
(j) any violation of section 11(c)(2) of the Natural Gas Pipeline
Safety Act of 1968 (relating to destruction of a natural gas pipeline) or
subsection (i) or (n) of section 902 of the Federal Aviation Act of 1958
(relating to aircraft piracy);
(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;
(m) any felony violation of sections 922 and 924 of title 18, United
States Code (relating to firearms);
(n) any violation of section 5861 of the Internal Revenue Code of 1986
(relating to firearms); and
(o) any conspiracy to commit any offense described in any subparagraph
of this paragraph.
(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 jurisdiction 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 and with the applicable State statute an order
authorizing, 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 authorizing 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 jurisdiction 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.
Sec. 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.
Sec. 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 making
the application, and the officer authorizing the application;
(b) a full and complete statement of the facts and circumstances 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 intercepted;
(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;
(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 communications 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,
and must terminate upon attainment of the authorized objective, or in any
event in thirty days. In the event the intercepted communication 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, 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, 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 to authorize such interception,
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 application 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, 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 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)
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, oral, or electronic
communications were or were not intercepted.
The judge, upon the filing of a motion, may in his discretion 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, 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. 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 communications 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.
Sec. 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, 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 intercepted, (iii) the approximate
number of persons whose communications were intercepted, and (iv) the
approximate nature, amount, and cost of the manpower and other resources
used in the interceptions;
(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 interceptions 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.
Sec. 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 intercepted,
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 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 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 legislative
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.
Sec. 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, 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
Sec. 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.
Sec. 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.
Sec. 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 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
communications 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 communications 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 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.--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.
Sec. 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. 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 communications 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.
Sec. 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.
Sec. 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.
Sec. 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 legislative
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 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.
Sec. 2708. Exclusivity of remedies
The remedies and sanctions described in this chapter are the only
judicial remedies and sanctions for nonconstitutional violations of this
chapter.
Sec. 2709. Counterintelligence access to telephone toll and
transactional 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.
Sec. 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 information" 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 information 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.
Sec. 2711. Definitions for chapter
As used in this chapter--
(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.
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART II. CRIMINAL PROCEDURE
CHAPTER 206. PEN REGISTERS AND TRAP AND TRACE DEVICES
Sec. 3121. General prohibition on pen register and trap and trace device
use; exception
(a) In general. Except as provided in this section, no person may
install or use a pen register or a trap and trace device without first
obtaining a court order under section 3123 of this title or under the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(b) Exception. The prohibition of subsection (a) does not apply with
respect to the use of a pen register or a trap and trace device by a
provider of electronic or wire communication service--
(1) relating to the operation, maintenance, and testing of a wire or
electronic communication service or to the protection of the rights or
property of such provider, or to the protection of users of that service
from abuse of service or unlawful use of service; or
(2) 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 communication, or a
user of that service, from fraudulent, unlawful or abusive use of service;
or
(3) where the consent of the user of that service has been obtained.
(c) Penalty. Whoever knowingly violates subsection (a) shall be fined
under this title or imprisoned not more than one year, or both.
Sec. 3122. Application for an order for a pen register or a trap and
trace device
(a) Application.
(1) An attorney for the Government may make application for an order or
an extension of an order under section 3123 of this title authorizing or
approving the installation and use of a pen register or a trap and trace
device under this chapter, in writing under oath or equivalent
affirmation, to a court of competent jurisdiction.
(2) Unless prohibited by State law, a State investigative or law
enforcement officer may make application for an order or an extension of
an order under section 3123 of this title authorizing or approving the
installation and use of a pen register or a trap and trace device under
this chapter, in writing under oath or equivalent affirmation, to a court
of competent jurisdiction of such State.
(b) Contents of application. An application under subsection (a) of
this section shall include--
(1) the identity of the attorney for the Government or the State law
enforcement or investigative officer making the application and the
identity of the law enforcement agency conducting the investigation; and
(2) a certification by the applicant that the information likely to be
obtained is relevant to an ongoing criminal investigation being conducted
by that agency.
Sec. 3123. Issuance of an order for a pen register or a trap and trace
device
(a) In general. Upon an application made under section 3122 of this
title, the court shall enter an ex parte order authorizing the
installation and use of a pen register or a trap and trace device within
the jurisdiction of the court if the court finds that the attorney for the
Government or the State law enforcement or investigative officer has
certified to the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation.
(b) Contents of order. An order issued under this section--
(1) shall specify--
(A) the identity, if known, of the person to whom is leased or in whose
name is listed the telephone line to which the pen register or trap and
trace device is to be attached;
(B) the identity, if known, of the person who is the subject of the
criminal investigation;
(C) the number and, if known, physical location of the telephone line
to which the pen register or trap and trace device is to be attached and,
in the case of a trap and trace device, the geographic limits of the trap
and trace order; and
(D) a statement of the offense to which the information likely to be
obtained by the pen register or trap and trace device relates; and
(2) shall direct, upon the request of the applicant, the furnishing of
information, facilities, and technical assistance necessary to accomplish
the installation of the pen register or trap and trace device under
section 3124 of this title.
(c) Time period and extensions.
(1) An order issued under this section shall authorize the installation
and use of a pen register or a trap and trace device for a period not to
exceed sixty days.
(2) Extensions of such an order may be granted, but only upon an
application for an order under section 3122 of this title and upon the
judicial finding required by subsection (a) of this section. The period of
extension shall be for a period not to exceed sixty days.
(d) Nondisclosure of existence of pen register or a trap and trace
device. An order authorizing or approving the installation and use of a
pen register or a trap and trace device shall direct that--
(1) the order be sealed until otherwise ordered by the court; and
(2) the person owning or leasing the line to which the pen register or
a trap and trace device is attached, or who has been ordered by the court
to provide assistance to the applicant, not disclose the existence of the
pen register or trap and trace device or the existence of the
investigation to the listed subscriber, or to any other person, unless or
until otherwise ordered by the court.
Sec. 3124. Assistance in installation and use of a pen register or a
trap and trace device
(a) Pen registers. Upon the request of an attorney for the government
or an officer of a law enforcement agency authorized to install and use a
pen register under this chapter, a provider of wire or electronic
communication service, landlord, custodian, or other person shall furnish
such investigative or law enforcement officer forthwith all information,
facilities, and technical assistance necessary to accomplish the
installation of the pen register unobtrusively and with a minimum of
interference with the services that the person so ordered by the court
accords the party with respect to whom the installation and use is to take
place, if such assistance is directed by a court order as provided in
section 3123(b)(2) of this title.
(b) Trap and trace device. Upon the request of an attorney for the
Government or an officer of a law enforcement agency authorized to receive
the results of a trap and trace device under this chapter, a provider of a
wire or electronic communication service, landlord, custodian, or other
person shall install such device forthwith on the appropriate line and
shall furnish such investigative or law enforcement officer all additional
information, facilities and technical assistance including installation
and operation of the device unobtrusively and with a minimum of
interference with the services that the person so ordered by the court
accords the party with respect to whom the installation and use is to take
place, if such installation and assistance is directed by a court order as
provided in section 3123(b)(2) of this title. Unless otherwise ordered by
the court, the results of the trap and trace device shall be furnished,
pursuant to section 3123(b) or section 3125 of this title, to the officer
of a law enforcement agency, designated in the court order, at reasonable
intervals during regular business hours for the duration of the order.
(c) Compensation. A provider of a wire or electronic communication
service, landlord, custodian, or other person who furnishes facilities or
technical assistance pursuant to this section shall be reasonably
compensated for such reasonable expenses incurred in providing such
facilities and assistance.
(d) No cause of action against a provider disclosing information under
this chapter. No cause of action shall lie in any court against any
provider of a 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
under this chapter or request pursuant to section 3125 of this title.
(e) Defense. A good faith reliance on a court order under this chapter,
a request pursuant to section 3125 of this title, a legislative
authorization, or a statutory authorization is a complete defense against
any civil or criminal action brought under this chapter or any other law.
Sec. 3125. Emergency pen register and trap and trace device installation
(a) Notwithstanding any other provision of this chapter, any
investigative or law enforcement officer, specially designated by the
Attorney General, the Deputy Attorney General, the Associate Attorney
General, any Assistant Attorney General, any acting Assistant Attorney
General, or any Deputy Assistant 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--
(1) an emergency situation exists that involves--
(A) immediate danger of death or serious bodily injury to any person;
or
(B) conspiratorial activities characteristic of organized crime,
that requires the installation and use of a pen register or a trap and
trace device before an order authorizing such installation and use can,
with due diligence, be obtained, and
(2) there are grounds upon which an order could be entered under this
chapter to authorize such installation and use "may have installed and use
a pen register or trap and trace device if, within forty-eight hours after
the installation has occurred, or begins to occur, an order approving the
installation or use is issued in accordance with section 3123 of this
title."
(b) In the absence of an authorizing order, such use shall immediately
terminate when the information sought is obtained, when the application
for the order is denied or when forty-eight hours have lapsed since the
installation of the pen register or trap and trace device, whichever is
earlier.
(c) The knowing installation or use by any investigative or law
enforcement officer of a pen register or trap and trace device pursuant to
subsection (a) without application for the authorizing order within
forty-eight hours of the installation shall constitute a violation of this
chapter.
(d) A provider for a wire or electronic service, landlord, custodian,
or other person who furnished facilities or technical assistance pursuant
to this section shall be reasonably compensated for such reasonable
expenses incurred in providing such facilities and assistance.
Sec. 3126. Reports concerning pen registers and trap and trace devices
The Attorney General shall annually report to Congress on the number of
pen register orders and orders for trap and trace devices applied for by
law enforcement agencies of the Department of Justice.
Sec. 3127. Definitions for chapter
As used in this chapter--
(1) the terms "wire communication", "electronic communication", and
"electronic communication service" have the meanings set forth for such
terms in section 2510 of this title;
(2) the term "court of competent jurisdiction" means--
(A) a district court of the United States (including a magistrate of
such a court) or a United States Court of Appeals; or
(B) a court of general criminal jurisdiction of a State authorized by
the law of that State to enter orders authorizing the use of a pen
register or a trap and trace device;
(3) the term "pen register" means a device which records or decodes
electronic or other impulses which identify the numbers dialed or
otherwise transmitted on the telephone line to which such device is
attached, but such term does not include any device used by a provider or
customer of a wire or electronic communication service for billing, or
recording as an incident to billing, for communications services provided
by such provider or any device used by a provider or customer of a wire
communication service for cost accounting or other like purposes in the
ordinary course of its business;
(4) the term "trap and trace device" means a device which captures the
incoming electronic or other impulses which identify the originating
number of an instrument or device from which a wire or electronic
communication was transmitted;
(5) the term "attorney for the Government" has the meaning given such
term for the purposes of the Federal Rules of Criminal Procedure; and
(6) the term "State" means a State, the District of Columbia, Puerto
Rico, and any other possession or territory of the United States.
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