2070 lines
96 KiB
Plaintext
2070 lines
96 KiB
Plaintext
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Submitted to Crisnews By:
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Bruce Kniffen
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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
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PART I. CRIMES
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CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
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INTERCEPTION OF ORAL COMMUNICATIONS
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s 2510. Definitions
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As used in this chapter [18 USC ss 2510 et seq.]
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(1) "wire communication" means any aural transfer made in whole
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or in part through the use of facilities for the transmission of
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communications by the aid of wire, cable, or other like connection
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between the point of origin and the point of reception (including
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the use of such connection in a switching station) furnished or
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operated by any person engaged in providing or operating such
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facilities for the transmission of interstate or foreign communica-
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tions or communications affecting interstate or foreign commerce
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and such term includes any electronic storage of such communica-
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tion, but such term does not include the radio portion of a
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cordless telephone communication that is transmitted between the
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cordless telephone handset and the base unit;
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(2) "oral communication" means any oral communication uttered
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by a person exhibiting an expectation that such communication is
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not subject to interception under circumstances justifying such
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expectation, but such term does not include any electronic
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communication;
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(3) "State" means any State of the United States, the District
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of Columbia, the Commonwealth of Puerto Rico, and any territory or
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possession of the United States;
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(4) "intercept" means the aural or other acquisition of the
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contents of any wire, electronic, or oral communication through the
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use of any electronic, mechanical, or other device.
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(5) "electronic, mechanical, or other device" means any device
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or apparatus which can be used to intercept a wire, oral, or
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electronic communication other than
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(a) any telephone or telegraph instrument, equipment or
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facility, or any component thereof, (i) furnished to the subscrib-
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er or user by a provider of wire or electronic communication
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service in the ordinary course of its business and being used by
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the subscriber or user in the ordinary course of its business or
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furnished by such subscriber or user for connection to the
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facilities of such service and used in the ordinary course of its
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business; or (ii) being used by a provider of wire or electronic
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communication service in the ordinary course of its business, or
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by an investigative or law enforcement officer in the ordinary
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course of his duties;
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(b) a hearing aid or similar device being used to correct
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subnormal hearing to not better than normal;
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(6) "person" means any employee, or agent of the United States
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or any State or political subdivision thereof, and any individual,
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partnership, association, joint stock company, trust, or corpora-
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tion;
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(7) "Investigative or law enforcement officer" means any officer
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of the United States or of a State or political subdivision
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thereof, who is empowered by law to conduct investigations of or
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to make arrests for offenses enumerated in this chapter [18 USC ss
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2510 et seq.], and any attorney authorized by law to prosecute or
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participate in the prosecution of such offenses;
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(8) "contents," when used with respect to any wire, oral, or
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electronic communication, includes any information concerning the
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substance, purport, or meaning of that communication;
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(9) "Judge of competent jurisdiction" means
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(a) a judge of a United States district court or a United
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States court of appeals; and
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(b) a judge of any court of general criminal jurisdiction
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of a State who is authorized by a statute of that State to enter
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orders authorizing interceptions of wire, oral, or electronic
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communications;
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(10) "communication common carrier" shall have the same meaning
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which is given the term "common carrier" by section 153(h) of title
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47 of the United States Code;
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(11) "aggrieved person" means a person who was a party to any
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intercepted wire, oral, or electronic communication or a person
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against whom the interception was directed;
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(12) "electronic communication" means any transfer of signs,
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signals, writing, images, sounds, data, or intelligence of any
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nature transmitted in whole or in part by a wire, radio, electro-
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magnetic, photoelectronic or photooptical system that affects
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interstate or foreign commerce, but does not include
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(A) the radio portion of a cordless telephone communication
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that is transmitted between the cordless telephone handset and the
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base unit;
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(B) any wire or oral communication;
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(C) any communication made through a tone-only paging device;
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or
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(D) any communication from a tracking device (as defined in
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section 3117 of this title);
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(13) "user" means any person or entity who
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(A) uses an electronic communication service; and
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(B) is duly authorized by the provider of such service to
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engage in such use;
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(14) "electronic communications system" means any wire, radio,
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electromagnetic, photooptical or photoelectronic facilities for the
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transmission of electronic communications, and any computer
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facilities or related electronic equipment for the electronic
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storage of such communications;
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(15) "electronic communication service" means any service which
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provides to users thereof the ability to send or receive wire or
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electronic communications;
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(16) "readily accessible to the general public" means, with
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respect to a radio communication, that such communication is not
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(A) scrambled or encrypted;
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(B) transmitted using modulation techniques whose essential
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parameters have been withheld from the public with the intention
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of preserving the privacy of such communication;
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(C) carried on a subcarrier or other signal subsidiary to a
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radio transmission;
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(D) transmitted over a communication system provided by a
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common carrier, unless the communication is a tone only paging
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system communication; or
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(E) transmitted on frequencies allocated under part 25,
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subpart D, E, or F of part 74, or part 94 of the Rules of the
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Federal Communications Commission, unless, in the case of a
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communication transmitted on a frequency allocated under part 74
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that is not exclusively allocated to broadcast auxiliary services,
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the communication is a two-way voice communication by radio;
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(17) "electronic storage" means
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(A) any temporary, intermediate storage of a wire or
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electronic communication incidental to the electronic transmission
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thereof; and
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(B) any storage of such communication by an electronic
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communication service for purposes of backup protection of such
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communication; and
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(18) "aural transfer" means a transfer containing the human
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voice at any point between and including the point of origin and
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the point of reception.
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CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
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INTERCEPTION OF ORAL COMMUNICATIONS
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s 2511. Interception and disclosure of wire, oral, or electronic
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communications prohibited
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(1) Except as otherwise specifically provided in this chapter [18
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USC ss 2510 et seq.] any person who
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(a) intentionally intercepts, endeavors to intercept, or
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procures any other person to intercept or endeavor to intercept,
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any wire, oral, or electronic communication;
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(b) intentionally uses, endeavors to use, or procures any
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other person to use or endeavor to use any electronic, mechanical,
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or other device to intercept any oral communication when
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(i) such device is affixed to, or otherwise transmits a
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signal through, a wire, cable, or other like connection used in
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wire communication; or
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(ii) such device transmits communications by radio, or
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interferes with the transmission of such communication; or
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(iii) such person knows, or has reason to know, that such
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device or any component thereof has been sent through the mail or
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transported in interstate or foreign commerce; or
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(iv) such use or endeavor to use (A) takes place on the
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premises of any business or other commercial establishment the
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operations of which affect interstate or foreign commerce; or (B)
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obtains or is for the purpose of obtaining information relating to
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the operations of any business or other commercial establishment
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the operations of which affect interstate or foreign commerce; or
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(v) such person acts in the District of Columbia, the
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Commonwealth of Puerto Rico, or any territory or possession of the
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United States;
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(c) intentionally discloses, or endeavors to disclose, to
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any other person the contents of any wire, oral, or electronic
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communication, knowing or having reason to know that the informa-
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tion was obtained through the interception of a wire, oral, or
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electronic communication in violation of this subsection;
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or
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(d) intentionally uses, or endeavors to use, the contents
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of any wire, oral, or electronic communication, knowing or having
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reason to know that the information was obtained through the
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interception of a wire, oral, or electronic communication in
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violation of this subsection;
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shall be punished as provided in subsection (4) or shall be
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subject to suit as provided in subsection (5).
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(2)(a)(i) It shall not be unlawful under this chapter for an
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operator of a switchboard, or an officer, employee, or agent of a
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provider of wire or electronic communication service, whose
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facilities are used in the transmission of a wire communication,
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to intercept, disclose, or use that communication in the normal
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course of his employment while engaged in any activity which is a
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necessary incident to the rendition of his service or to the
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protection of the rights or property of the provider of that
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service, except that a provider of wire communication service to
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the public shall not utilize service observing or random monitor-
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ing except for mechanical or service quality control checks.
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(ii) Notwithstanding any other law, providers of wire or
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electronic communication service, their officers, employees, and
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agents, landlords, custodians, or other persons, are authorized to
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provide information, facilities, or technical assistance to persons
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authorized by law to intercept wire, oral, or electronic communica-
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tions or to conduct electronic surveillance, as defined in section
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101 of the Foreign Intelligence Surveillance Act of 1978 if such
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provider, its officers, employees, or agents, landlord, custodian,
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or other specified person, has been provided with
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(A) a court order directing such assistance signed by the
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authorizing judge, or
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(B) a certification in writing by a person specified in
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section 2518(7) of this title [18 USC s 2518(7)] or the Attorney
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General of the United States that no warrant or court order is
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required by law, that all statutory requirements have been met, and
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that the specified assistance is required, setting forth the period
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of time during which the provision of the information, facilities,
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or technical assistance is authorized and specifying the informa-
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tion, facilities, or technical assistance required. No provider of
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wire or electronic communication service, officer, employee, or
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agent thereof, or landlord, custodian, or other specified person
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shall disclose the existence of any interception or surveillance
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or the device used to accomplish the interception or surveillance
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with respect to which the person has been furnished an order or
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certification under this subparagraph, except as may otherwise be
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required by legal process and then only after prior notification
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to the Attorney General or to the principal prosecuting attorney
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of a State or any political subdivision of a State, as may be
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appropriate. Any such disclosure, shall render such person liable
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for the civil damages provided for in section 2520. No cause of
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action shall lie in any court against any provider of wire or
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electronic communication service, its officers, employees, or
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agents, landlord, custodian, or other specified person for
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providing information, facilities, or assistance in accordance with
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the terms of a court order or certification under this chapter.
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(b) It shall not be unlawful under this chapter for an
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officer, employee, or agent of the Federal Communications Commis-
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sion, in the normal course of his employment and in discharge of
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the monitoring responsibilities exercised by the Commission in the
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enforcement of chapter 5 of title 47 of the United States Code, to
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intercept a wire or electronic communication, or oral communication
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transmitted by radio, or to disclose or use the information thereby
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obtained.
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(c) It shall not be unlawful under this chapter for a
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person acting under color of law to intercept a wire, oral, or
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electronic communication, where such person is a party to the
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communication or one of the parties to the communication has given
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prior consent to such interception.
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(d) It shall not be unlawful under this chapter for a
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person not acting under color of law to intercept a wire or oral
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communication where such person is a party to the communication or
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where one of the parties to the communication has given prior
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consent to such interception unless such communication is inter-
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cepted for the purpose of committing any criminal or tortious act
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in violation of the Constitution or laws of the United States or
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of any State.
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(e) Notwithstanding any other provision of this title [18
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USC ss 1 et seq.] or section 705 or 706 of the Communications Act
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of 1934 [47 USC s 605 or 606], it shall not be unlawful for an
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officer, employee, or agent of the United States in the normal
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course of his official duty to conduct electronic surveillance, as
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defined in section 101 of the Foreign Intelligence Surveillance Act
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of 1978 [50 USC s 1801], as authorized by that Act [50 USC ss 1801
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et seq.].
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(f) Nothing contained in this chapter [18 USC ss 2510 et
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seq.] or chapter 121, or section 705 of the Communications Act of
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1934 [47 USC s 605], shall be deemed to affect the acquisition by
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the United States Government of foreign intelligence information
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from international or foreign communications, or foreign intelli-
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gence activities conducted in accordance with otherwise applicable
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Federal law involving a foreign electronic communications system,
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utilizing a means other than electronic surveillance as defined in
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section 101 of the Foreign Intelligence Surveillance Act of 1978
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[50 USC s 1801], and procedures in this chapter [18 USC ss 2510 et
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seq.] and the Foreign Intelligence Surveillance Act of 1978 [50
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USC ss 1801 et seq.] shall be the exclusive means by which
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electronic surveillance, as defined in section 101 of such Act [50
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USC s 1801], and the interception of domestic wire, oral, or
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electronic communications may be conducted.
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(g) It shall not be unlawful under this chapter or chapter
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121 of this title for any person
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(i) to intercept or access an electronic communication
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made through an electronic communication system that is configured
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so that such electronic communication is readily accessible to the
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general public;
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(ii) to intercept any radio communication which is trans-
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mitted
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(I) by any station for the use of the general public,
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or that relates to ships, aircraft, vehicles, or persons in
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distress;
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(II) by any governmental, law enforcement, civil
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defense, private land mobile, or public safety communications
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system, including police and fire, readily accessible to the
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general public;
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(III) by a station operating on an authorized frequency
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within the bands allocated to the amateur, citizens band, or
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general mobile radio services; or
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(IV) by any marine or aeronautical communications
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system;
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(iii) to engage in any conduct which
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(I) is prohibited by section 633 of the Communications
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Act of 1934; or
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(II) is excepted from the application of section 705(a)
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of the Communications Act of 1934 by section 705(b) of that Act;
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(iv) to intercept any wire or electronic communication the
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transmission of which is causing harmful interference to any
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lawfully operating station or consumer electronic equipment, to the
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extent necessary to identify the source of such interference; or
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(v) for other users of the same frequency to intercept any
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radio communication made through a system that utilizes frequencies
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monitored by individuals engaged in the provision or the use of
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such system, if such communication is not scrambled or encrypted.
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(h) It shall not be unlawful under this chapter
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(i) to use a pen register or a trap and trace device (as
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those terms are defined for the purposes of chapter 206 (relating
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to pen registers and trap and trace devices) of this title); or
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(ii) for a provider of electronic communication service
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to record the fact that a wire or electronic communication was
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initiated or completed in order to protect such provider, another
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provider furnishing service toward the completion of the wire or
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electronic communication, or a user of that service, from fraudu-
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lent, unlawful or abusive use of such service.
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(3)(a) Except as provided in paragraph (b) of this subsection, a
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person or entity providing an electronic communication service to
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the public shall not intentionally divulge the contents of any
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communication (other than one to such person or entity, or an
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agent thereof) while in transmission on that service to any person
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or entity other than an addressee or intended recipient of such
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communication or an agent of such addressee or intended recipient.
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(b) A person or entity providing electronic communication
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service to the public may divulge the contents of any such
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communication
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(i) as otherwise authorized in section 2511(2)(a) or 2517
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of this title;
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(ii) with the lawful consent of the originator or any
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addressee or intended recipient of such communication;
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(iii) to a person employed or authorized, or whose
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facilities are used, to forward such communication to its destina-
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tion; or
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(iv) which were inadvertently obtained by the service
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provider and which appear to pertain to the commission of a crime,
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if such divulgence is made to a law enforcement agency.
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(4)(a) Except as provided in paragraph (b) of this subsection or
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in subsection (5), whoever violates subsection (1) of this section
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shall be fined under this title or imprisoned not more than five
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years, or both.
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(b) If the offense is a first offense under paragraph (a)
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of this subsection and is not for a tortious or illegal purpose or
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for purposes of direct or indirect commercial advantage or private
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commercial gain, and the wire or electronic communication with
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respect to which the offense under paragraph (a) is a radio
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communication that is not scrambled or encrypted, then
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(i) if the communication is not the radio portion of a
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cellular telephone communication, a public land mobile radio
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service communication or a paging service communication, and the
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conduct is not that described in subsection (5), the offender
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shall be fined under this title or imprisoned not more than one
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year, or both; and
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(ii) if the communication is the radio portion of a
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cellular telephone communication, a public land mobile radio
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service communication or a paging service communication, the
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offender shall be fined not more than $500.
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(c) Conduct otherwise an offense under this subsection that
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consists of or relates to the interception of a satellite transmis-
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sion that is not encrypted or scrambled and that is transmitted
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(i) to a broadcasting station for purposes of retrans-
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mission to the general public; or
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(ii) as an audio subcarrier intended for redistribution
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to facilities open to the public, but not including data transmis-
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sions or telephone calls,is not an offense under this subsection
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unless the conduct is for the purposes of direct or indirect
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commercial advantage or private financial gain.
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(5)(a)(i) If the communication is (A) a private satellite video
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communication that is not scrambled or encrypted and the conduct
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in violation of this chapter is the private viewing of that
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communication and is not for a tortious or illegal purpose or for
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purposes of direct or indirect commercial advantage or private
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commercial gain; or (B) a radio communication that is transmitted
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on frequencies allocated under subpart D of part 74 of the rules
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of the Federal Communications Commission that is not scrambled or
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encrypted and the conduct in violation of this chapter is not for
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a tortious or illegal purpose or for purposes of direct or indirect
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commercial advantage or private commercial gain, then the person
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who engages in such conduct shall be subject to suit by the Federal
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Government in a court of competent jurisdiction.
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(ii) In an action under this subsection
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(A) if the violation of this chapter is a first offense
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for the person under paragraph (a) of subsection (4) and such
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person has not been found liable in a civil action under section
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2520 of this title, the Federal Government shall be entitled to
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appropriate injunctive relief; and
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(B) if the violation of this chapter is a second or
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subsequent offense under paragraph (a) of subsection (4) or such
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person has been found liable in any prior civil action under
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section 2520, the person shall be subject to a mandatory $500 civil
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fine.
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(b) The court may use any means within its authority to
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enforce an injunction issued under paragraph (ii)(A), and shall
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impose a civil fine of not less than $500 for each violation of
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such an injunction.
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|
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CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
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INTERCEPTION OF ORAL COMMUNICATIONS
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|
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s 2512. Manufacture, distribution, possession, and advertising of
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wire, oral, or electronic communication intercepting devices
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prohibited
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(1) Except as otherwise specifically provided in this chapter,
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any person who intentionally
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(a) sends through the mail, or sends or carries in inter-
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state or foreign commerce, any electronic, mechanical, or other
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device, knowing or having reason to know that the design of such
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device renders it primarily useful for the purpose of the surrepti-
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tious interception of wire, oral, or electronic communications;
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(b) manufactures, assembles, possesses, or sells any
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electronic, mechanical, or other device, knowing or having reason
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to know that the design of such device renders it primarily useful
|
|
for the purpose of the surreptitious interception of wire, oral,
|
|
or electronic communications, and that such device or any component
|
|
thereof has been or will be sent through the mail or transported
|
|
in interstate or foreign commerce; or
|
|
|
|
(c) places in any newspaper, magazine, handbill, or other
|
|
publication any advertisement of
|
|
|
|
(i) any electronic, mechanical, or other device knowing
|
|
or having reason to know that the design of such device renders
|
|
it primarily useful for the purpose of the surreptitious intercep-
|
|
tion of wire, oral, or electronic communications; or
|
|
|
|
(ii) any other electronic, mechanical, or other device,
|
|
where such advertisement promotes the use of such device for the
|
|
purpose of the surreptitious interception of wire, oral, or
|
|
electronic communications, knowing or having reason to know that
|
|
such advertisement will be sent through the mail or transported in
|
|
interstate or foreign commerce,
|
|
|
|
(2) It shall not be unlawful under this section for
|
|
|
|
(a) a provider of wire or electronic communication service
|
|
or an officer, agent, or employee of, or a person under contract
|
|
with, such a provider, in the normal course of the business of
|
|
providing that wire or electronic communication service, or
|
|
|
|
(b) an officer, agent, or employee of, or a person under
|
|
contract with, the United States, a State, or a political subdivi-
|
|
sion thereof, in the normal course of the activities of the United
|
|
States, a State, or a political subdivision thereof, to send
|
|
through the mail, send or carry in interstate or foreign commerce,
|
|
or manufacture, assemble, possess, or sell any electronic,
|
|
mechanical, or other device knowing or having reason to know that
|
|
the design of such device renders it primarily useful for the
|
|
purpose of the surreptitious interception of wire, oral, or
|
|
electronic communications.
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2513. Confiscation of wire, oral, or electronic communication
|
|
intercepting devices
|
|
|
|
Any electronic, mechanical, or other device used, sent, carried,
|
|
manufactured, assembled, possessed, sold, or advertised in
|
|
violation of section 2511 or section 2512 of this chapter [18 USC
|
|
ss 2511 or 2512] may be seized and forfeited to the United States.
|
|
|
|
All provisions of law relating to (1) the seizure, summary and
|
|
judicial forfeiture, and condemnation of vessels, vehicles,
|
|
merchandise, and baggage for violations of the customs laws
|
|
contained in title 19 of the United States Code [19 USC ss 1 et
|
|
seq.], (2) the disposition of such vessels, vehicles, merchandise,
|
|
and baggage or the proceeds from the sale thereof, (3) the
|
|
remission or mitigation of such forfeiture, (4) the compromise of
|
|
claims, and (5) the award of compensation to informers in respect
|
|
of such forfeitures, shall apply to seizures and forfeitures
|
|
incurred, or alleged to have been incurred, under the provisions
|
|
of this section, insofar as applicable and not inconsistent with
|
|
the provisions of this section; except that such duties as are
|
|
imposed upon the collector of customs or any other person with
|
|
respect to the seizure and forfeiture of vessels, vehicles,
|
|
merchandise, and baggage under the provisions of the customs laws
|
|
contained in title 19 of the United States Code [19 USC ss 1 et
|
|
seq.] shall be performed with respect to seizure and forfeiture of
|
|
electronic, mechanical, or other intercepting devices under this
|
|
section by such officers, agents, or other persons as may be
|
|
authorized or designated for that purpose by the Attorney General.
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2514. [Repealed]
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2515. Prohibition of use as evidence of intercepted wire or oral
|
|
|
|
communications
|
|
|
|
Whenever any wire or oral communication has been intercepted, no
|
|
part of the contents of such communication and no evidence derived
|
|
therefrom may be received in evidence in any trial, hearing, or
|
|
other proceeding in or before any court, grand jury, department,
|
|
officer, agency, regulatory body, legislative committee, or other
|
|
authority of the United States, a State, or a political subdivision
|
|
thereof if the disclosure of that information would be in violation
|
|
of this chapter [18 USC ss 2510 et seq.].
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2516. Authorization for interception of wire, oral, or electron-
|
|
ic communications
|
|
|
|
(1) The Attorney General, Deputy Attorney General, Associate
|
|
Attorney General, or any Assistant Attorney General, any acting
|
|
Assistant Attorney General, or any Deputy Assistant Attorney
|
|
General in the Criminal Division specially designated by the
|
|
Attorney General, may authorize an application to a Federal judge
|
|
of competent jurisdiction for, and such judge may grant in
|
|
conformity with section 2518 of this chapter [18 USC s 2518] an
|
|
order authorizing or approving the interception of wire or oral
|
|
communications by the Federal Bureau of Investigation, or a Federal
|
|
agency having responsibility for the investigation of the offense
|
|
as to which the application is made, when such interception may
|
|
provide or has provided evidence of-
|
|
|
|
(a) any offense punishable by death or by imprisonment for more
|
|
than one year under sections 2274 through 2277 of title 42 of the
|
|
United States Code (relating to the enforcement of the Atomic
|
|
Energy Act of 1954), section 2284 of title 42 of the United States
|
|
Code (relating to sabotage of nuclear facilities or fuel), or
|
|
under the following chapters of this title: chapter 37 [18 USC ss
|
|
791 et seq.](relating to espionage), chapter 105 [18 USC ss 2151
|
|
et seq.] (relating to sabotage), chapter 115 [18 USC ss 2381 et
|
|
seq.] (relating to treason), chapter 102 [18 USC ss 2101 et seq.];
|
|
|
|
(relating to riots), chapter 65 [18 USC ss 1361 et seq.](relating
|
|
to malicious mischief), chapter 111 [18 USC ss 2271 et
|
|
seq.](relating to destruction of vessels), or chapter 81 [18 USC
|
|
ss 1621 et seq.] (relating to piracy);
|
|
|
|
(b) a violation of section 186 or section 501(c) of title 29,
|
|
United States Code [29 USC s 186 or 501(c)] (dealing with restric-
|
|
tions on payments and loans to labor organizations), or any
|
|
offense which involves murder, kidnapping, robbery, or extortion,
|
|
and which is punishable under this title [18 USC ss 1 et seq.];
|
|
|
|
(c) any offense which is punishable under the following sections
|
|
of this title [18 USC ss 1 et seq.] : section 201 (bribery of
|
|
public officials and witnesses), section 224 (bribery in sporting
|
|
contests), subsection (d), (e), (f), (g), (h), or (i) of section
|
|
844 (unlawful use of explosives), section 1084 (transmission of
|
|
wagering information), section 751 (relating to escape), sections
|
|
1503, 1512, and 1513 (influencing or injuring an officer, juror,
|
|
or witness generally), section 1510 (obstruction of criminal
|
|
investigations), section 1511 (obstruction of State or local law
|
|
enforcement), section 1751 (Presidential and Presidential staff
|
|
assassination, kidnaping, and assault), section 1951 (interference
|
|
with commerce by threats or violence), section 1952 (interstate and
|
|
foreign travel or transportation in aid of racketeering enter-
|
|
prises), section 1958 (relating to use of interstate commerce
|
|
facilities in the commission of murder for hire), section 1959
|
|
(relating to violent crimes in aid of racketeering activity),
|
|
section 1954 (offer, acceptance, or solicitation to influence
|
|
operations of employee benefit plan), section 1955 (prohibition of
|
|
business enterprises of gambling), section 1956 (laundering of
|
|
monetary instruments), section 1957 (relating to engaging in
|
|
monetary transactions in property derived from specified unlawful
|
|
activity), section 659 (theft from interstate shipment), section
|
|
664 (embezzlement from pension and welfare funds), section 1343
|
|
(fraud by wire, radio, or television), sections 2251 and 2252
|
|
(sexual exploitation of children), sections 2312, 2313, 2314, and
|
|
2315 (interstate transportation of stolen property), section 2321
|
|
(relating to trafficking in certain motor vehicles or motor vehicle
|
|
parts), section 1203 (relating to hostage taking), section 1029
|
|
(relating to fraud and related activity in connection with access
|
|
devices), section 3146 (relating to penalty for failure to appear),
|
|
section 3521(b)(3) (relating to witness relocation and assistance),
|
|
section 32 (relating to destruction of aircraft or aircraft
|
|
facilities), section 1963 (violations with respect to racketeer
|
|
influenced and corrupt organizations), section 115 (relating to
|
|
threatening or retaliating against a Federal official), the section
|
|
in chapter 65 relating to destruction of an energy facility, and
|
|
section 1341 (relating to mail fraud), or section 351 (violations
|
|
with respect to congressional, Cabinet, or Supreme Court assassina-
|
|
tions, kidnaping, and assault), section 831 (relating to prohibited
|
|
transactions involving nuclear materials), section 33 (relating to
|
|
destruction of motor vehicles or motor vehicle facilities), or
|
|
section 1992 (relating to wrecking trains);
|
|
|
|
(d) any offense involving counterfeiting punishable under
|
|
section 471, 472, or 473 of this title [18 USC s 471, 472, or 473];
|
|
|
|
|
|
(e) any offense involving fraud connected with a case under
|
|
title 11 [11 USC ss 1 et seq.] or the manufacture, importation,
|
|
receiving, concealment, buying, selling, or otherwise dealing in
|
|
narcotic drugs, marihuana, or other dangerous drugs, punishable
|
|
under any law of the United States;
|
|
|
|
(f) any offense including extortionate credit transactions under
|
|
sections 892, 893, or 894 of this title [18 USC s 892, 893, or
|
|
894];
|
|
|
|
(g) a violation of section 5322 of title 31, United States Code
|
|
[31 USC s 5322] (dealing with the reporting of currency transac-
|
|
tions);
|
|
|
|
(h) any felony violation of sections 2511 and 2512 (relating to
|
|
interception and disclosure of certain communications and to
|
|
certain intercepting devices) of this title;
|
|
|
|
(i) any felony violation of chapter 71 (relating to obscenity)
|
|
of this title [18 USC ss 1460 et seq.];
|
|
|
|
(j) any violation of section 1679a(c)(2) (relating to destruc-
|
|
tion of a natural gas pipeline) or subsection (i) or (n) of section
|
|
1472 (relating to aircraft piracy) of title 49, of the United
|
|
States Code;
|
|
|
|
(k) any criminal violation of section 2778 of title 22 (relating
|
|
to the Arms Export Control Act);
|
|
|
|
(l) the location of any fugitive from justice from an offense
|
|
described in this section; [or]
|
|
|
|
(m)any conspiracy to commit any of the foregoing offenses. [;]
|
|
|
|
[(n)] (m) any felony violation of sections 922 and 924 of title
|
|
18, United States Code (relating to firearms); and
|
|
|
|
[(o)] (n) any violation of section 5861 of the Internal Revenue
|
|
Code of 1986 [26 USC s 5861] (relating to firearms).
|
|
|
|
(2) The principal prosecuting attorney of any State, or the
|
|
principal prosecuting attorney of any political subdivision
|
|
thereof, if such attorney is authorized by a statute of that State
|
|
to make application to a State court judge of competent jurisdic-
|
|
tion for an order authorizing or approving the interception of wire
|
|
or oral communications, may apply to such judge for, and such judge
|
|
may grant in conformity with section 2518 of this chapter [18 USC
|
|
s 2518] and with the applicable State statute an order authoriz-
|
|
ing, or approving the interception of wire or oral communications
|
|
by investigative or law enforcement officers having responsibility
|
|
for the investigation of the offense as to which the application
|
|
is made, when such interception may provide or has provided
|
|
evidence of the commission of the offense of murder, kidnapping,
|
|
gambling, robbery, bribery, extortion, or dealing in narcotic
|
|
drugs, marihuana or other dangerous drugs, or other crime dangerous
|
|
to life, limb, or property, and punishable by imprisonment for more
|
|
than one year, designated in any applicable State statute authoriz-
|
|
ing such interception, or any conspiracy to commit any of the
|
|
foregoing offenses.
|
|
|
|
(3) Any attorney for the Government (as such term is defined for
|
|
the purposes of the Federal Rules of Criminal Procedure) may
|
|
authorize an application to a Federal judge of competent jurisdic-
|
|
tion for, and such judge may grant, in conformity with section 2518
|
|
of this title, an order authorizing or approving the interception
|
|
of electronic communications by an investigative or law enforcement
|
|
officer having responsibility for the investigation of the offense
|
|
as to which the application is made, when such interception may
|
|
provide or has provided evidence of any Federal felony.
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2517. Authorization for disclosure and use of intercepted wire,
|
|
oral, or electronic communications
|
|
|
|
(1) Any investigative or law enforcement officer who, by any means
|
|
authorized by this chapter, has obtained knowledge of the contents
|
|
of any wire, oral, or electronic communication, or evidence derived
|
|
therefrom, may disclose such contents to another investigative or
|
|
law enforcement officer to the extent that such disclosure is
|
|
appropriate to the proper performance of the official duties of the
|
|
officer making or receiving the disclosure.
|
|
|
|
(2) Any investigative or law enforcement officer who, by any means
|
|
authorized by this chapter, has obtained knowledge of the contents
|
|
of any wire, oral, or electronic communication or evidence derived
|
|
therefrom may use such contents to the extent such use is
|
|
appropriate to the proper performance of his official duties.
|
|
|
|
(3) Any person who has received, by any means authorized by this
|
|
chapter, any information concerning a wire, oral, or electronic
|
|
communication, or evidence derived therefrom intercepted in
|
|
accordance with the provisions of this chapter may disclose the
|
|
contents of that communication or such derivative evidence while
|
|
giving testimony under oath or affirmation in any proceeding held
|
|
under the authority of the United States or of any State or
|
|
political subdivision thereof.
|
|
|
|
(4) No otherwise privileged wire, oral, or electronic communication
|
|
intercepted in accordance with, or in violation of, the provisions
|
|
of this chapter shall lose its privileged character.
|
|
|
|
(5) When an investigative or law enforcement officer, while engaged
|
|
in intercepting wire, oral, or electronic communications in the
|
|
manner authorized herein, intercepts wire, oral, or electronic
|
|
communications relating to offenses other than those specified in
|
|
the order of authorization or approval, the contents thereof, and
|
|
evidence derived therefrom, may be disclosed or used as provided
|
|
in subsections (1) and (2) of this section. Such contents and any
|
|
evidence derived therefrom may be used under subsection (3) of this
|
|
section when authorized or approved by a judge of competent
|
|
jurisdiction where such judge finds on subsequent application that
|
|
the contents were otherwise intercepted in accordance with the
|
|
provisions of this chapter. Such application shall be made as soon
|
|
as practicable.
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2518. Procedure for interception of wire, oral, or electronic
|
|
communications
|
|
|
|
(1) Each application for an order authorizing or approving the
|
|
interception of a wire, oral, or electronic communication under
|
|
this chapter shall be made in writing upon oath or affirmation to
|
|
a judge of competent jurisdiction and shall state the applicant's
|
|
authority to make such application. Each application shall include
|
|
the following information:
|
|
|
|
(a) the identity of the investigative or law enforcement
|
|
officer the application, and the officer authorizing the applica-
|
|
tion;
|
|
|
|
(b) a full and complete statement of the facts and circum-
|
|
stances relied upon by the applicant, to justify his belief that
|
|
an order should be issued, including (i) details as to the
|
|
particular offense that has been, is being, or is about to be
|
|
committed, (ii) except as provided in subsection (11), a particular
|
|
description of the nature and location of the facilities from which
|
|
or the place where the communication is to be intercepted, (iii)
|
|
a particular description of the type of communications sought to
|
|
be intercepted, (iv) the identity of the person, if known,
|
|
committing the offense and whose communications are to be inter-
|
|
cepted;
|
|
|
|
(c) a full and complete statement as to whether or not other
|
|
investigative procedures have been tried and failed or why they
|
|
reasonably appear to be unlikely to succeed if tried or to be too
|
|
dangerous;
|
|
|
|
(d) a statement of the period of time for which the
|
|
interception is required to be maintained. If the nature of the
|
|
investigation is such that the authorization for interception
|
|
should not automatically terminate when the described type of
|
|
communication has been first obtained, a particular description of
|
|
facts establishing probable cause to believe that additional
|
|
communications of the same type will occur thereafter;
|
|
|
|
(e) a full and complete statement of the facts concerning
|
|
all previous applications known to the individual authorizing and
|
|
making the application, made to any judge for authorization to
|
|
intercept, or for approval of interceptions of, wire, oral, or
|
|
electronic communications involving any of the same persons,
|
|
facilities or places specified in the application, and the action
|
|
taken by the judge on each such application; and
|
|
|
|
(f) where the application is for the extension of an order,
|
|
a statement setting forth the results thus far obtained from the
|
|
interception, or a reasonable explanation of the failure to obtain
|
|
such results.
|
|
|
|
(2) The judge may require the applicant to furnish additional
|
|
testimony or documentary evidence in support of the application.
|
|
|
|
(3) Upon such application the judge may enter an ex parte order,
|
|
as requested or as modified, authorizing or approving interception
|
|
of wire, oral, or electronic communications within the territorial
|
|
jurisdiction of the court in which the judge is sitting (and
|
|
outside that jurisdiction but within the United States in the case
|
|
of a mobile interception device authorized by a Federal court
|
|
within such jurisdiction), if the judge determines on the basis of
|
|
the facts submitted by the applicant that
|
|
|
|
(a) there is probable cause for belief that an individual
|
|
is committing, has committed, or is about to commit a particular
|
|
offense enumerated in section 2516 of this chapter [18 USC s
|
|
2516];
|
|
|
|
(b) there is probable cause for belief that particular
|
|
communications concerning that offense will be obtained through
|
|
such interception;
|
|
|
|
(c) normal investigative procedures have been tried and have
|
|
failed or reasonably appear to be unlikely to succeed if tried or
|
|
to be too dangerous;
|
|
|
|
(d) except as provided in subsection (11), there is probable
|
|
cause for belief that the facilities from which, or the place
|
|
where, the wire, oral, or electronic communications are to be
|
|
intercepted are being used, or are about to be used, in connection
|
|
with the commission of such offense, or are leased to, listed in
|
|
the name of, or commonly used by such person.
|
|
(4) Each order authorizing or approving the interception of any
|
|
wire, oral, or electronic communication under this chapter shall
|
|
specify
|
|
|
|
(a) the identity of the person, if known, whose communica-
|
|
tions are to be intercepted;
|
|
|
|
(b) the nature and location of the communications facilities
|
|
as to which, or the place where, authority to intercept is granted;
|
|
|
|
(c) a particular description of the type of communication
|
|
sought to be intercepted, and a statement of the particular offense
|
|
to which it relates;
|
|
|
|
(d) the identity of the agency authorized to intercept the
|
|
communications, and of the person authorizing the application; and
|
|
|
|
(e) the period of time during which such interception is
|
|
authorized, including a statement as to whether or not the
|
|
interception shall automatically terminate when the described
|
|
communication has been first obtained. An order authorizing the
|
|
interception of a wire, oral, or electronic communication under
|
|
this chapter shall, upon request of the applicant, direct that a
|
|
provider of wire or electronic communication service, landlord,
|
|
custodian or other person shall furnish the applicant forthwith all
|
|
information, facilities, and technical assistance necessary to
|
|
accomplish the interception unobtrusively and with a minimum of
|
|
interference with the services that such service provider,
|
|
landlord, custodian, or person is according the person whose
|
|
communications are to be intercepted. Any provider of wire or
|
|
electronic communication service, landlord, custodian or other
|
|
person furnishing such facilities or technical assistance shall be
|
|
compensated therefor by the applicant for reasonable expenses
|
|
incurred in providing such facilities or assistance.
|
|
|
|
(5) No order entered under this section may authorize or approve
|
|
the interception of any wire, oral, or electronic communication for
|
|
any period longer than is necessary to achieve the objective of the
|
|
authorization, nor in any event longer than thirty days. Such
|
|
thirty-day period begins on the earlier of the day on which the
|
|
investigative or law enforcement officer first begins to conduct
|
|
an interception under the order or ten days after the order is
|
|
entered. Extensions of an order may be granted, but only upon
|
|
application for an extension made in accordance with subsection (1)
|
|
of this section and the court making the findings required by
|
|
subsection (3) of this section. The period of extension shall be
|
|
no longer than the authorizing judge deems necessary to achieve the
|
|
purposes for which it was granted and in no event for longer than
|
|
thirty days. Every order and extension thereof shall contain a
|
|
provision that the authorization to intercept shall be executed as
|
|
soon as practicable, shall be conducted in such a way as to
|
|
minimize the interception of communications not otherwise subject
|
|
to interception under this chapter [18 USC ss 2510 et seq.], and
|
|
must terminate upon attainment of the authorized objective, or in
|
|
any event in thirty days. In the event the intercepted communica-
|
|
tion is in a code or foreign language, and an expert in that
|
|
foreign language or code is not reasonably available during the
|
|
interception period, minimization may be accomplished as soon as
|
|
practicable after such interception. An interception under this
|
|
chapter may be conducted in whole or in part by Government
|
|
personnel, or by an individual operating under a contract with the
|
|
Government, acting under the supervision of an investigative or law
|
|
enforcement officer authorized to conduct the interception.
|
|
|
|
(6) Whenever an order authorizing interception is entered pursuant
|
|
to this chapter [18 USC ss 2510 et seq.], the order may require
|
|
reports to be made to the judge who issued the order showing what
|
|
progress has been made toward achievement of the authorized
|
|
objective and the need for continued interception. Such reports
|
|
shall be made at such intervals as the judge may require.
|
|
|
|
(7) Notwithstanding any other provision of this chapter [18 USC ss
|
|
|
|
2510 et seq.], any investigative or law enforcement officer,
|
|
specially designated by the Attorney General, the Deputy Attorney
|
|
General, the Associate Attorney General, or by the principal
|
|
prosecuting attorney of any State or subdivision thereof acting
|
|
pursuant to a statute of that State, who reasonably determines that
|
|
|
|
(a) an emergency situation exists that involves
|
|
|
|
(i) immediate danger of death or serious physical injury to
|
|
any person,
|
|
|
|
(ii) conspiratorial activities threatening the national
|
|
security interest, or
|
|
|
|
(iii) conspiratorial activities characteristic of organized
|
|
crime, that requires a wire, oral, or electronic communication to
|
|
be intercepted before an order authorizing such interception can,
|
|
with due diligence, be obtained, and
|
|
|
|
(b) there are grounds upon which an order could be entered under
|
|
this chapter [18 USC ss 2510 et seq.] to authorize such intercep-
|
|
tion, may intercept such wire, oral, or electronic communication
|
|
if an application for an order approving the interception is made
|
|
in accordance with this section within forty-eight hours after the
|
|
interception has occurred, or begins to occur. In the absence of
|
|
an order, such interception shall immediately terminate when the
|
|
communication sought is obtained or when the application for the
|
|
order is denied, whichever is earlier. In the event such applica-
|
|
tion for approval is denied, or in any other case where the
|
|
interception is terminated without an order having been issued, the
|
|
contents of any wire, oral, or electronic communication intercepted
|
|
shall be treated as having been obtained in violation of this
|
|
chapter [18 USC ss 2510 et seq.], and an inventory shall be served
|
|
|
|
as provided for in subsection (d) of this section on the person
|
|
named in the application.
|
|
|
|
(8)(a) The contents of any wire, oral, or electronic communication
|
|
intercepted by any means authorized by this chapter shall, if
|
|
possible, be recorded on tape or wire or other comparable device.
|
|
The recording of the contents of any wire, oral, or electronic
|
|
communication under this subsection shall be done in such way as
|
|
will protect the recording from editing or other alterations.
|
|
Immediately upon the expiration of the period of the order, or
|
|
extensions thereof, such recordings shall be made available to the
|
|
judge issuing such order and sealed under his directions. Custody
|
|
of the recordings shall be wherever the judge orders. They shall
|
|
not be destroyed except upon an order of the issuing or denying
|
|
judge and in any event shall be kept for ten years. Duplicate
|
|
recordings may be made for use or disclosure pursuant to the
|
|
provisions of subsections (1) and (2) of section 2517 of this
|
|
chapter for investigations. The presence of the seal provided for
|
|
by this subsection, or a satisfactory explanation for the absence
|
|
thereof, shall be a prerequisite for the use or disclosure of the
|
|
contents of any wire, oral, or electronic communication or evidence
|
|
derived therefrom under subsection (3) of section 2517.
|
|
|
|
(b) Applications made and orders granted under this chapter
|
|
[18 USC ss 2510 et seq.] shall be sealed by the judge. Custody of
|
|
the applications and orders shall be wherever the judge directs.
|
|
Such applications and orders shall be disclosed only upon a showing
|
|
of good cause before a judge of competent jurisdiction and shall
|
|
not be destroyed except on order of the issuing or denying judge,
|
|
and in any event shall be kept for ten years.
|
|
|
|
(c) Any violation of the provisions of this subsection may
|
|
be punished as contempt of the issuing or denying judge.
|
|
|
|
(d) Within a reasonable time but not later than ninety days
|
|
after the filing of an application for an order of approval under
|
|
section 2518(7)(b) [18 USC s 2518(7)(b)] which is denied or the
|
|
termination of the period of an order or extensions thereof, the
|
|
issuing or denying judge shall cause to be served, on the persons
|
|
named in the order or the application, and such other parties to
|
|
intercepted communications as the judge may determine in his
|
|
discretion that is in the interest of justice, an inventory which
|
|
shall include notice of
|
|
|
|
(1) the fact of the entry of the order or the application;
|
|
|
|
(2) the date of the entry and the period of authorized,
|
|
approved or disapproved interception, or the denial of the
|
|
application; and
|
|
|
|
(3) the fact that during the period wire or oral communica-
|
|
tions were or were not intercepted.
|
|
|
|
The judge, upon the filing of a motion, may in his discre-
|
|
tion make available to such person or his counsel for inspection
|
|
such portions of the intercepted communications, applications and
|
|
orders as the judge determines to be in the interest of justice.
|
|
On an ex parte showing of good cause to a judge of competent
|
|
jurisdiction the serving of the inventory required by this
|
|
subsection may be postponed.
|
|
|
|
(9) The contents of any wire, oral, or electronic communication
|
|
intercepted pursuant to this chapter or evidence derived therefrom
|
|
shall not be received in evidence or otherwise disclosed in any
|
|
trial, hearing, or other proceeding in a Federal or State court
|
|
unless each party, not less than ten days before the trial,
|
|
hearing, or proceeding, has been furnished with a copy of the court
|
|
order, and accompanying application, under which the interception
|
|
was authorized or approved. This ten-day period may be waived by
|
|
the judge if he finds that it was not possible to furnish the
|
|
party with the above information ten days before the trial,
|
|
hearing, or proceeding and that the party will not be prejudiced
|
|
by the delay in receiving such information.
|
|
|
|
(10)(a) Any aggrieved person in any trial, hearing, or proceeding
|
|
in or before any court, department, officer, agency, regulatory
|
|
body, or other authority of the United States, a State, or a
|
|
political subdivision thereof, may move to suppress the contents
|
|
of any wire or oral communication intercepted pursuant to this
|
|
chapter [18 USC ss 2510 et seq.], or evidence derived therefrom,
|
|
on the grounds that
|
|
|
|
(i) the communication was unlawfully intercepted;
|
|
|
|
(ii) the order of authorization or approval under which it
|
|
was intercepted is insufficient on its face; or
|
|
|
|
(iii) the interception was not made in conformity with the
|
|
order of authorization or approval.
|
|
|
|
Such motion shall be made before the trial, hearing, or
|
|
proceeding unless there was no opportunity to make such motion or
|
|
the person was not aware of the grounds of the motion. If the
|
|
motion is granted, the contents of the intercepted wire or oral
|
|
communication, or evidence derived therefrom, shall be treated as
|
|
having been obtained in violation of this chapter [18 USC ss 2510
|
|
et seq.]. The judge, upon the filing of such motion by the
|
|
aggrieved person, may in his discretion make available to the
|
|
aggrieved person or his counsel for inspection such portions of
|
|
the intercepted communication or evidence derived therefrom as the
|
|
judge determines to be in the interests of justice.
|
|
|
|
(b) In addition to any other right to appeal, the United
|
|
States shall have the right to appeal from an order granting a
|
|
motion to suppress made under paragraph (a) of this subsection,
|
|
or the denial of an application for an order of approval, if the
|
|
United States attorney shall certify to the judge or other official
|
|
granting such motion or denying such application that the appeal
|
|
is not taken for purposes of delay. Such appeal shall be taken
|
|
within thirty days after the date the order was entered and shall
|
|
be diligently prosecuted.
|
|
|
|
(c) The remedies and sanctions described in this chapter
|
|
with respect to the interception of electronic communications are
|
|
the only judicial remedies and sanctions for nonconstitutional
|
|
violations of this chapter involving such communications.
|
|
(11) The requirements of subsections (1)(b)(ii) and (3)(d) of this
|
|
section relating to the specification of the facilities from which,
|
|
or the place where, the communication is to be intercepted do not
|
|
apply if
|
|
|
|
(a) in the case of an application with respect to the
|
|
interception of an oral communication
|
|
|
|
(i) the application is by a Federal investigative or
|
|
law enforcement officer and is approved by the Attorney General,
|
|
the Deputy Attorney General, the Associate Attorney General, an
|
|
Assistant Attorney General, or an acting Assistant Attorney
|
|
General;
|
|
|
|
(ii) the application contains a full and complete
|
|
statement as to why such specification is not practical and
|
|
identifies the person committing the offense and whose communica-
|
|
tions are to be intercepted; and
|
|
|
|
(iii) the judge finds that such specification is not
|
|
practical; and
|
|
|
|
(b) in the case of an application with respect to a wire
|
|
or electronic communication
|
|
|
|
(i) the application is by a Federal investigative or
|
|
law enforcement officer and is approved by the Attorney General,
|
|
the Deputy Attorney General, the Associate Attorney General, an
|
|
Assistant Attorney General, or an acting Assistant Attorney
|
|
General;
|
|
|
|
(ii) the application identifies the person believed
|
|
to be committing the offense and whose communications are to be
|
|
intercepted and the applicant makes a showing of a purpose, on the
|
|
part of that person, to thwart interception by changing facilities;
|
|
and
|
|
|
|
(iii) the judge finds that such purpose has been
|
|
adequately shown. (12) An interception of a communication under an
|
|
order with respect to which the requirements of subsections
|
|
(1)(b)(ii) and (3)(d) of this section do not apply by reason of
|
|
subsection (11) shall not begin until the facilities from which,
|
|
or the place where, the communication is to be intercepted is
|
|
ascertained by the person implementing the interception order. A
|
|
provider of wire or electronic communications service that has
|
|
received an order as provided for in subsection (11)(b) may move
|
|
the court to modify or quash the order on the ground that its
|
|
assistance with respect to the interception cannot be performed in
|
|
a timely or reasonable fashion. The court, upon notice to the
|
|
government, shall decide such a motion expeditiously.
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2519. Reports concerning intercepted wire, oral, or electronic
|
|
communications
|
|
|
|
(1) Within thirty days after the expiration of an order (or each
|
|
extension thereof) entered under section 2518 [18 USC s 2518], or
|
|
the denial of an order approving an interception, the issuing or
|
|
denying judge shall report to the Administrative Office of the
|
|
United States Courts
|
|
|
|
(a) the fact that an order or extension was applied for;
|
|
|
|
(b) the kind of order or extension applied for (including
|
|
whether or not the order was an order with respect to which the
|
|
requirements of sections 2518(1)(b)(ii) and 2518(3)(d) of this
|
|
title did not apply by reason of section 2518(11) of this title);
|
|
|
|
(c) the fact that the order or extension was granted as
|
|
applied for, was modified, or was denied;
|
|
|
|
(d) the period of interceptions authorized by the order, and
|
|
the number and duration of any extensions of the order;
|
|
|
|
(e) the offense specified in the order or application, or
|
|
extension of an order;
|
|
|
|
(f) the identity of the applying investigative or law
|
|
enforcement officer and agency making the application and the
|
|
person authorizing the application; and
|
|
|
|
(g) the nature of the facilities from which or the place where
|
|
communications were to be intercepted.
|
|
|
|
(2) In January of each year the Attorney General, an Assistant
|
|
Attorney General specially designated by the Attorney General, or
|
|
the principal prosecuting attorney of a State, or the principal
|
|
prosecuting attorney for any political subdivision of a State,
|
|
shall report to the Administrative Office of the United States
|
|
Courts
|
|
|
|
(a) the information required by paragraphs (a) through (g)
|
|
of subsection (1) of this section with respect to each application
|
|
for an order or extension made during the preceding calendar year;
|
|
|
|
(b) a general description of the interceptions made under
|
|
such order or extension, including (i) the approximate nature and
|
|
frequency of incriminating communications intercepted, (ii) the
|
|
approximate nature and frequency of other communications inter-
|
|
cepted, (iii) the approximate number of persons whose communica-
|
|
tions were intercepted, and (iv) the approximate nature, amount,
|
|
and cost of the manpower and other resources used in the intercep-
|
|
tions;
|
|
|
|
(c) the number of arrests resulting from interceptions made
|
|
under such order or extension, and the offenses for which arrests
|
|
were made;
|
|
|
|
(d) the number of trials resulting from such interceptions;
|
|
|
|
(e) the number of motions to suppress made with respect to
|
|
such interceptions, and the number granted or denied;
|
|
|
|
(f) the number of convictions resulting from such intercep-
|
|
tions and the offenses for which the convictions were obtained and
|
|
a general assessment of the importance of the interceptions; and
|
|
|
|
(g) the information required by paragraphs (b) through (f)
|
|
of this subsection with respect to orders or extensions obtained
|
|
in a preceding calendar year.
|
|
|
|
(3) In April of each year the Director of the Administrative Office
|
|
of the United States Courts shall transmit to the Congress a full
|
|
and complete report concerning the number of applications for
|
|
orders authorizing or approving the interception of wire, oral, or
|
|
electronic communications pursuant to this chapter and the number
|
|
of orders and extensions granted or denied pursuant to this chapter
|
|
during the preceding calendar year. Such report shall include a
|
|
summary and analysis of the data required to be filed with the
|
|
Administrative Office by subsections (1) and (2) of this section.
|
|
The Director of the Administrative Office of the United States
|
|
Courts is authorized to issue binding regulations dealing with the
|
|
content and form of the reports required to be filed by subsections
|
|
(1) and (2) of this section.
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2520. Recovery of civil damages authorized
|
|
|
|
(a) In general. Except as provided in section 2511(2)(a)(ii), any
|
|
person whose wire, oral, or electronic communication is inter-
|
|
cepted, disclosed, or intentionally used in violation of this
|
|
chapter may in a civil action recover from the person or entity
|
|
which engaged in that violation such relief as may be appropriate.
|
|
|
|
(b) Relief. In an action under this section, appropriate relief
|
|
includes
|
|
|
|
(1) such preliminary and other equitable
|
|
or declaratory relief as may be appropriate;
|
|
|
|
(2) damages under subsection (c) and punitive damages in
|
|
appropriate cases; and
|
|
|
|
(3) a reasonable attorney's fee and other litigation costs
|
|
reasonably incurred.
|
|
(c) Computation of damages.
|
|
|
|
(1) In an action under this section,
|
|
if the conduct in violation of this chapter, is the private
|
|
viewing of a private satellite video communication that is not
|
|
scrambled or encrypted or if the communication is a radio communi-
|
|
cation that is transmitted on frequencies allocated under subpart
|
|
D of part 74 of the rules of the Federal Communications Commission
|
|
that is not scrambled or encrypted and the conduct is not for a
|
|
tortious or illegal purpose or for purposes of direct or indirect
|
|
commercial advantage or private commercial gain, then the court
|
|
shall assess damages as follows:
|
|
|
|
(A) If the person who engaged
|
|
in that conduct has not previously been enjoined under section
|
|
2511(5) and has not been found liable in a prior civil action under
|
|
this section, the court shall assess the greater of the sum of
|
|
actual damages suffered by the plaintiff, or statutory damages of
|
|
not less than $50 and not more than $500.
|
|
|
|
(B) If, on one prior occasion, the person who engaged in that
|
|
conduct has been enjoined under section 2511(5) or has been found
|
|
liable in a civil action under this section, the court shall assess
|
|
the greater of the sum of actual damages suffered by the plaintiff,
|
|
or statutory damages of not less than $100 and not more than $1000.
|
|
|
|
(2) In any other action under this section, the court may assess
|
|
as damages whichever is the greater of
|
|
|
|
(A) the sum of the actual damages suffered by the plaintiff
|
|
and any profits made by the violator as a result of the violation;
|
|
or
|
|
(B) statutory damages of whichever is the greater of $100 a
|
|
day for each day of violation or $10,000.
|
|
|
|
(d) Defense. A good faith reliance on
|
|
|
|
(1) a court warrant or order, a grand jury subpoena, a legisla-
|
|
tive authorization, or a statutory authorization;
|
|
|
|
(2) a request of an investigative or law enforcement officer
|
|
under section 2518(7) of this title; or
|
|
|
|
(3) a good faith determination that section 2511(3) of this
|
|
title permitted the conduct complained of; is a complete defense
|
|
against any civil or criminal action brought under this chapter or
|
|
any other law.
|
|
|
|
(e) Limitation. A civil action under this section may not be
|
|
commenced later than two years after the date upon which the
|
|
claimant first has a reasonable opportunity to discover the
|
|
violation.
|
|
|
|
CHAPTER 119. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
|
|
INTERCEPTION OF ORAL COMMUNICATIONS
|
|
|
|
s 2521. Injunction against illegal interception
|
|
Whenever it shall appear that any person is engaged or is about to
|
|
engage in any act which constitutes or will constitute a felony
|
|
violation of this chapter [18 USC ss 2510 et seq.], the Attorney
|
|
General may initiate a civil action in a district court of the
|
|
United States to enjoin such violation. The court shall proceed as
|
|
soon as practicable to the hearing and determination of such an
|
|
action, and may, at any time before final determination, enter such
|
|
a restraining order or prohibition, or take such other action, as
|
|
is warranted to prevent a continuing and substantial injury to the
|
|
United States or to any person or class of persons for whose
|
|
protection the action is brought. A proceeding under this section
|
|
is governed by the Federal Rules of Civil Procedure, except that,
|
|
if an indictment has been returned against the respondent,
|
|
discovery is governed by the Federal Rules of Criminal Procedure.".
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2701. Unlawful access to stored communications
|
|
|
|
(a) Offense. Except as provided in subsection (c) of this section
|
|
whoever
|
|
|
|
(1) intentionally accesses without authorization a
|
|
facility through which an electronic communication service is
|
|
provided; or
|
|
|
|
(2) intentionally exceeds an authorization to access that
|
|
facility; and thereby obtains, alters, or prevents authorized
|
|
access to a wire or electronic communication while it is in
|
|
electronic storage in such system shall be punished
|
|
as provided in subsection (b) of this section.
|
|
|
|
(b) Punishment. The punishment for an offense under subsection (a)
|
|
of this section is-
|
|
|
|
(1) if the offense is committed for purposes of commercial
|
|
advantage, malicious destruction or damage, or private commercial
|
|
gain
|
|
|
|
(A) a fine of not more than $ 250,000 or imprisonment for
|
|
not more than one year, or both, in the case of a first offense
|
|
under this subparagraph; and
|
|
|
|
(B) a fine under this title or
|
|
imprisonment for not more than two years, or both, for any
|
|
subsequent offense under this subparagraph; and
|
|
|
|
(2) a fine of not more than $ 5,000 or imprisonment for not
|
|
more than six months, or both, in any other case.
|
|
|
|
(c) Exceptions. Subsection (a) of this section does not apply with
|
|
respect to conduct authorized-
|
|
|
|
(1) by the person or entity providing a wire or electronic
|
|
communications service;
|
|
|
|
(2) by a user of that service with respect to a communication
|
|
of or intended for that user; or
|
|
|
|
(3) in section 2703, 2704 or 2518 of this title.
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2702. Disclosure of contents
|
|
|
|
(a) Prohibitions. Except as provided in subsection (b)-
|
|
|
|
(1) a person or entity providing an electronic communication
|
|
service to the public shall not knowingly divulge to any person or
|
|
entity the contents of a communication while in electronic storage
|
|
by that service; and
|
|
|
|
(2) a person or entity providing remote computing service to
|
|
the public shall not knowingly divulge to any person or entity the
|
|
contents of any communication which is carried or maintained on
|
|
that service-
|
|
|
|
(A) on behalf of, and received by means of electronic
|
|
transmission from (or created by means of computer processing of
|
|
communications received by means of electronic transmission from),
|
|
a subscriber or customer of such service; and
|
|
|
|
(B) solely for the purpose of providing storage or computer
|
|
processing services to such subscriber or customer, if the provider
|
|
is not authorized to access the contents of any such communications
|
|
for purposes of providing any services other than storage or
|
|
computer processing.
|
|
|
|
(b) Exceptions. A person or entity may divulge the contents of a
|
|
communication-
|
|
|
|
(1) to an addressee or intended recipient of such
|
|
communication or an agent of such addressee or intended recipient;
|
|
|
|
(2) as otherwise authorized in section 2517, 2511(2)(a), or
|
|
2703 of this title;
|
|
|
|
(3) with the lawful consent of the originator or an addressee
|
|
or intended recipient of such communication, or the subscriber in
|
|
the case of remote computing service;
|
|
|
|
(4) to a person employed or authorized or whose facilities are
|
|
used to forward such communication to its destination;
|
|
|
|
(5) as may be necessarily incident to the rendition of the
|
|
service or to the protection of the rights or property of the
|
|
provider of that service; or
|
|
|
|
(6) to a law enforcement agency,
|
|
if such contents-
|
|
|
|
(A) were inadvertently obtained by the service provider; and
|
|
|
|
(B) appear to pertain to the commission of a crime.
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2703. Requirements for governmental access
|
|
|
|
(a) Contents of electronic communications in electronic storage.
|
|
A governmental entity may require the disclosure by a provider of
|
|
electronic communication service of the contents of an electronic
|
|
communication, that is in electronic storage in an electronic
|
|
communications system for one hundred and eighty days or less, only
|
|
pursuant to a warrant issued under the Federal Rules of Criminal
|
|
Procedure or equivalent State warrant. A governmental entity may
|
|
require the disclosure by a provider of electronic communications
|
|
services of the contents of an electronic communication that has
|
|
been in electronic storage in an electronic communications system
|
|
for more than one hundred and eighty days by the means available
|
|
under subsection (b) of this section.
|
|
|
|
(b) Contents of electronic communications in a remote computing
|
|
service.
|
|
|
|
(1) A governmental entity may require a provider of remote
|
|
computing service to disclose the contents of any electronic
|
|
communication to which this paragraph is made applicable by
|
|
paragraph (2) of this subsection-
|
|
|
|
(A) without required notice to the subscriber or customer,
|
|
if the governmental entity obtains a warrant issued under the
|
|
Federal Rules of Criminal Procedure or equivalent State warrant;
|
|
or
|
|
|
|
(B) with prior notice from the governmental entity to the
|
|
subscriber or customer if the governmental entity-
|
|
|
|
(i) uses an administrative subpoena authorized by a
|
|
Federal or State statute or a Federal or State grand jury or trial
|
|
subpoena; or
|
|
|
|
(ii) obtains a court order for such disclosure
|
|
under subsection (d) of this section; except that delayed notice
|
|
may be given pursuant to section 2705 of this title.
|
|
|
|
(2) Paragraph (1) is applicable with respect to any electronic
|
|
communication that is held or maintained on that service-
|
|
|
|
(A) on behalf of, and received by means of electronic
|
|
transmission from (or created by means of computer processing of
|
|
communications received by means of electronic transmission from),
|
|
a subscriber or customer of such remote computing service; and
|
|
|
|
(B) solely for the purpose of providing storage or computer
|
|
processing services to such subscriber or customer, if the provider
|
|
is not authorized to access the contents of any such communications
|
|
for purposes of providing any services other than storage or
|
|
computer processing.
|
|
|
|
(c) Records concerning electronic communication service or remote
|
|
computing service.
|
|
|
|
(1)(A) Except as provided in subparagraph (B), a provider of
|
|
electronic communication service or remote computing service may
|
|
disclose a record or other information pertaining to a subscriber
|
|
to or customer of such service (not including the contents of
|
|
communications covered by subsection (a) or (b) of this section)
|
|
to any person other than a governmental entity.
|
|
|
|
(B) A provider of electronic communication service or remote
|
|
computing service shall disclose a record or other information
|
|
pertaining to a subscriber to or customer of such service (not
|
|
including the contents of communications covered by subsection (a)
|
|
or (b) of this section) to a governmental entity only when the
|
|
governmental entity-
|
|
|
|
(i) uses an administrative subpoena authorized by a
|
|
Federal or State statute, or a Federal or State grand jury
|
|
subpoena;
|
|
|
|
(ii) obtains a warrant issued under the Federal Rules of
|
|
Criminal Procedure or equivalent State warrant;
|
|
|
|
(iii) obtains a court order for such disclosure under
|
|
subsection (d) of this section; or
|
|
|
|
(iv) has the consent of the subscriber or customer to
|
|
such disclosure.
|
|
|
|
(2) A governmental entity receiving records or information
|
|
under this subsection is not required to provide notice to a
|
|
subscriber or customer.
|
|
|
|
(d) Requirements for court order. A court order for disclosure
|
|
under subsection (b) or (c) of this section may be issued by any
|
|
court that is a court of competent jurisdiction set forth in
|
|
section 3126(2)(A) of this title and shall issue only if the
|
|
governmental entity shows that there is reason to believe the
|
|
contents of a wire or electronic communication, or the records or
|
|
other information sought, are relevant to a legitimate law
|
|
enforcement inquiry. In the case of a State governmental authority,
|
|
such a court order shall not issue if prohibited by the law of such
|
|
State. A court issuing an order pursuant to this section, on a
|
|
motion made promptly by the service provider, may quash or modify
|
|
such order, if the information or records requested are unusually
|
|
voluminous in nature or compliance with such order otherwise would
|
|
cause an undue burden on such provider.
|
|
|
|
(e) No cause of action against a provider disclosing information
|
|
under this chapter [18 USC ss 2701 et seq.]. No cause of action
|
|
shall lie in any court against any provider of wire or electronic
|
|
communication service, its officers, employees, agents, or other
|
|
specified persons for providing information, facilities, or
|
|
assistance in accordance with the terms of a court order, warrant,
|
|
subpoena, or certification under this chapter [18 USC ss 2701 et
|
|
seq.].
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2704. Backup preservation
|
|
|
|
(a) Backup preservation.
|
|
|
|
(1) A governmental entity acting under section 2703(b)(2) may
|
|
include in its subpoena or court order a requirement that the
|
|
service provider to whom the request is directed create a backup
|
|
copy of the contents of the electronic communications sought in
|
|
order to preserve those communications. Without notifying the
|
|
subscriber or customer of such subpoena or court order, such
|
|
service provider shall create such backup copy as soon as
|
|
practicable consistent with its regular business practices and
|
|
shall confirm to the governmental entity that such backup copy has
|
|
been made. Such backup copy shall be created within two business
|
|
days after receipt by the service provider of the subpoena or court
|
|
order.
|
|
|
|
(2) Notice to the subscriber or customer shall be made by the
|
|
governmental entity within three days after receipt of such
|
|
confirmation, unless such notice is delayed pursuant to section
|
|
2705(a).
|
|
|
|
(3) The service provider shall not destroy such backup copy
|
|
until the later of
|
|
|
|
(A) the delivery of the information; or
|
|
|
|
(B) the resolution of any proceedings (including appeals of
|
|
any proceeding) concerning the government's subpoena or court
|
|
order.
|
|
|
|
(4) The service provider shall release such backup copy to the
|
|
requesting governmental entity no sooner than fourteen days after
|
|
the governmental entity's notice to the subscriber or customer if
|
|
such service provider
|
|
|
|
(A) has not received notice from the
|
|
subscriber or customer that the subscriber or customer has
|
|
challenged the governmental entity's request; and
|
|
|
|
(B) has not initiated proceedings to challenge the request
|
|
of the governmental entity.
|
|
|
|
(5) A governmental entity may seek to require the creation of
|
|
a backup copy under subsection (a)(1) of this section if in its
|
|
sole discretion such entity determines that there is reason to
|
|
believe that notification under section 2703 of this title of the
|
|
existence of the subpoena or court order may result in destruction
|
|
of or tampering with evidence. This determination is not subject
|
|
to challenge by the subscriber or customer or service provider.
|
|
|
|
(b) Customer challenges.
|
|
|
|
(1) Within fourteen days after notice by the governmental
|
|
entity to the subscriber or customer under subsection (a)(2) of
|
|
this section, such subscriber or customer may file a motion to
|
|
quash such subpoena or vacate such court order, with copies served
|
|
upon the governmental entity and with written notice of such
|
|
challenge to the service provider. A motion to vacate a court order
|
|
shall be filed in the court which issued such order. A motion to
|
|
quash a subpoena shall be filed in the appropriate United States
|
|
district court or State court. Such motion or application shall
|
|
contain an affidavit or sworn statement
|
|
|
|
(A) stating that the applicant is a customer or subscriber
|
|
to the service from which the contents of electronic communications
|
|
maintained for him have been sought; and
|
|
|
|
(B) stating the applicant's reasons for believing that the
|
|
records sought are not relevant to a legitimate law enforcement
|
|
inquiry or that there has not been substantial compliance with the
|
|
provisions of this chapter in some other respect.
|
|
|
|
(2) Service shall be made under this section upon a
|
|
governmental entity by delivering or mailing by registered or
|
|
certified mail a copy of the papers to the person, office, or
|
|
department specified in the notice which the customer has received
|
|
pursuant to this chapter [18 USC ss 2701 et seq.]. For the purposes
|
|
|
|
of this section, the term "delivery" has the meaning given that
|
|
term in the Federal Rules of Civil Procedure.
|
|
|
|
(3) If the court finds that the customer has complied with
|
|
paragraphs (1) and (2) of this subsection, the court shall order
|
|
the governmental entity to file a sworn response, which may be
|
|
filed in camera if the governmental entity includes in its response
|
|
the reasons which make in camera review appropriate. If the court
|
|
is unable to determine the motion or application on the basis of
|
|
the parties' initial allegations and response, the court may
|
|
conduct such additional proceedings as it deems appropriate. All
|
|
such proceedings shall be completed and the motion or application
|
|
decided as soon as practicable after the filing of the governmental
|
|
entity's response.
|
|
|
|
(4) If the court finds that the applicant is not the subscriber
|
|
or customer for whom the communications sought by the governmental
|
|
entity are maintained, or that there is a reason to believe that
|
|
the law enforcement inquiry is legitimate and that the communica-
|
|
tions sought are relevant to that inquiry, it shall deny the motion
|
|
or application and order such process enforced. If the court finds
|
|
that the applicant is the subscriber or customer for whom the
|
|
communications sought by the governmental entity are maintained,
|
|
and that there is not a reason to believe that the communications
|
|
sought are relevant to a legitimate law enforcement inquiry, or
|
|
that there has not been substantial compliance with the provisions
|
|
of this chapter, it shall order the process quashed.
|
|
|
|
(5) A court order denying a motion or application under this
|
|
section shall not be deemed a final order and no interlocutory
|
|
appeal may be taken therefrom by the customer.
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2705. Delayed notice
|
|
|
|
(a) Delay of notification.
|
|
|
|
(1) A governmental entity acting under
|
|
section 2703(b) of this title may
|
|
|
|
(A) where a court order is sought, include in the
|
|
application a request, which the court shall grant, for an order
|
|
delaying the notification required under section 2703(b) of this
|
|
title for a period not to exceed ninety days, if the court
|
|
determines that there is reason to believe that notification of the
|
|
existence of the court order may have an adverse result described
|
|
in paragraph (2) of this subsection; or
|
|
|
|
(B) where an administrative subpoena authorized by a Federal
|
|
or State statute or a Federal or State grand jury subpoena is
|
|
obtained, delay the notification required under section 2703(b) of
|
|
this title for a period not to exceed ninety days upon the
|
|
execution of a written certification of a supervisory official that
|
|
there is reason to believe that notification of the existence of
|
|
the subpoena may have an adverse result described in paragraph (2)
|
|
of this subsection.
|
|
|
|
(2) An adverse result for the purposes of paragraph (1) of this
|
|
subsection is
|
|
|
|
(A) endangering the life or physical safety of an
|
|
individual;
|
|
|
|
(B) flight from prosecution;
|
|
|
|
(C) destruction of or tampering with evidence;
|
|
|
|
(D) intimidation of potential witnesses; or
|
|
|
|
(E) otherwise seriously jeopardizing an investigation or
|
|
unduly delaying a trial.
|
|
|
|
(3) The governmental entity shall maintain a true copy of
|
|
certification under paragraph (1)(B).
|
|
|
|
(4) Extensions of the delay of notification provided in section
|
|
2703 of up to ninety days each may be granted by the court upon
|
|
application, or by certification by a governmental entity, but only
|
|
in accordance with subsection (b) of this section.
|
|
|
|
(5) Upon expiration of the period of delay of notification
|
|
under paragraph (1) or (4) of this subsection, the governmental
|
|
entity shall serve upon, or deliver by registered or first-class
|
|
mail to, the customer or subscriber a copy of the process or
|
|
request together with notice that
|
|
|
|
(A) states with reasonable specificity the nature of the law
|
|
enforcement inquiry; and
|
|
|
|
(B) informs such customer or subscriber
|
|
|
|
(i) that information maintained for such customer or
|
|
subscriber by the service provider named in such process or request
|
|
was supplied to or requested by that governmental authority and the
|
|
date on which the supplying or request took place;
|
|
|
|
(ii) that notification of such customer or subscriber
|
|
was delayed;
|
|
|
|
(iii) what governmental entity or court made the
|
|
certification or determination pursuant to which that delay was
|
|
made; and
|
|
|
|
(iv) which provision of this chapter allowed such delay.
|
|
|
|
|
|
(6) As used in this subsection, the term "supervisory official"
|
|
means the investigative agent in charge or assistant investigative
|
|
agent in charge or an equivalent of an investigating agency's
|
|
headquarters or regional office, or the chief prosecuting attorney
|
|
or the first assistant prosecuting attorney or an equivalent of a
|
|
prosecuting attorney's headquarters or regional office.
|
|
|
|
(b) Preclusion of notice to subject of governmental access. A
|
|
governmental entity acting under section 2703, when it
|
|
is not required to notify the subscriber or customer under section
|
|
2703(b)(1), or to the extent that it may delay such notice pursuant
|
|
to subsection (a) of this section, may apply to a court for an
|
|
order commanding a provider of electronic communications service
|
|
or remote computing service to whom a warrant, subpoena, or court
|
|
order is directed, for such period as the court deems appropriate,
|
|
not to notify any other person of the existence of the warrant,
|
|
subpoena, or court order. The court shall enter such an order if
|
|
it determines that there is reason to believe that notification of
|
|
the existence of the warrant, subpoena, or court order will result
|
|
in
|
|
|
|
(1) endangering the life or physical safety of an individual;
|
|
|
|
(2) flight from prosecution;
|
|
|
|
(3) destruction of or tampering with evidence;
|
|
|
|
(4) intimidation of potential witnesses; or
|
|
|
|
(5) otherwise seriously jeopardizing an investigation or unduly
|
|
delaying a trial.
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2706. Cost reimbursement
|
|
|
|
(a) Payment. Except as otherwise provided in subsection (c), a
|
|
governmental entity obtaining the contents of communications,
|
|
records, or other information under section 2702, 2703, or 2704 of
|
|
this title shall pay to the person or entity assembling or
|
|
providing such information a fee for reimbursement for such costs
|
|
as are reasonably necessary and which have been directly incurred
|
|
in searching for, assembling, reproducing, or otherwise providing
|
|
such information. Such reimbursable costs shall include any costs
|
|
due to necessary disruption of normal operations of any electronic
|
|
communication service or remote computing service in which such
|
|
information may be stored.
|
|
|
|
(b) Amount. The amount of the fee provided by subsection (a) shall
|
|
be as mutually agreed by the governmental entity and the person or
|
|
entity providing the information, or, in the absence of agreement,
|
|
shall be as determined by the court which issued the order for
|
|
production of such information (or the court before which a
|
|
criminal prosecution relating to such information would be brought,
|
|
if no court order was issued for production of the information).
|
|
(c) Exception. The requirement of subsection (a) of this section
|
|
does not apply with respect to records or other information
|
|
maintained by a communications common carrier that relate to
|
|
telephone toll records and telephone listings obtained under
|
|
section 2703 of this title. The court may, however, order a payment
|
|
as described in subsection (a) if the court determines the
|
|
information required is unusually voluminous in nature or otherwise
|
|
caused an undue burden on the provider.
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2707. Civil action
|
|
|
|
(a) Cause of action. Except as provided in section 2703(e), any
|
|
provider of electronic communication service, subscriber, or
|
|
customer aggrieved by any violation of this chapter in which the
|
|
conduct constituting the violation is engaged in with a knowing or
|
|
intentional state of mind may, in a civil action, recover from the
|
|
person or entity which engaged in that violation such relief as
|
|
may be appropriate.
|
|
|
|
(b) Relief. In a civil action under this section, appropriate
|
|
relief includes
|
|
|
|
(1) such preliminary and other
|
|
equitable or declaratory relief as may be appropriate;
|
|
|
|
|
|
(2) damages under subsection (c); and
|
|
|
|
(3) a reasonable attorney's fee and other litigation costs
|
|
reasonably incurred.
|
|
|
|
(c) Damages. The court may assess as damages in a civil action
|
|
under this section the sum of the actual damages suffered by the
|
|
plaintiff and any profits made by the violator as a result of the
|
|
violation, but in no case shall a person entitled to recover
|
|
receive less than the sum of $1,000.
|
|
|
|
(d) Defense. A good faith reliance on
|
|
|
|
(1) a court warrant or order, a grand jury subpoena, a legisla-
|
|
tive authorization, or a statutory authorization;
|
|
|
|
(2) a request of an investigative or law enforcement officer
|
|
under section 2518(7) of this title; or
|
|
|
|
(3) a good faith determination that section 2511(3) of this
|
|
title permitted the conduct complained of; is a complete defense
|
|
to any civil or criminal action brought under this chapter [18 USC
|
|
ss 2701 et seq.] or any other law.
|
|
|
|
(e) Limitation. A civil action under this section may not be
|
|
commenced later than two years after the date upon which the
|
|
claimant first discovered or had a reasonable opportunity to
|
|
discover the violation.
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2708. Exclusivity of remedies
|
|
|
|
The remedies and sanctions described in this chapter [18 USC ss
|
|
2701 et seq.] are the only judicial remedies and sanctions for
|
|
nonconstitutional violations of this chapter [18 USC ss 2701 et
|
|
seq.].
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2709. Counterintelligence access to telephone toll and transac-
|
|
tional records
|
|
|
|
(a) Duty to provide. A wire or electronic communication service
|
|
provider shall comply with a request for subscriber information and
|
|
toll billing records information, or electronic communication
|
|
transactional records in its custody or possession made by the
|
|
Director of the Federal Bureau of Investigation under subsection
|
|
(b) of this section.
|
|
|
|
(b) Required certification. The Director of the Federal Bureau of
|
|
Investigation (or an individual within the Federal Bureau of
|
|
Investigation designated for this purpose by the Director) may
|
|
request any such information and records if the Director (or the
|
|
Director's designee) certifies in writing to the wire or electronic
|
|
communication service provider to which the request is made that
|
|
|
|
(1) the information sought is relevant to an authorized foreign
|
|
counterintelligence investigation; and
|
|
|
|
(2) there are specific and articulable facts giving reason to
|
|
believe that the person or entity to whom the information sought
|
|
pertains is a foreign power or an agent of a foreign power as
|
|
defined in section 101 of the Foreign Intelligence Surveillance Act
|
|
of 1978 (50 U.S.C. 1801).
|
|
|
|
(c) Prohibition of certain disclosure. No wire or electronic
|
|
communication service provider, or officer, employee, or agent
|
|
thereof, shall disclose to any person that the Federal Bureau of
|
|
Investigation has sought or obtained access to information or
|
|
records under this section.
|
|
|
|
(d) Dissemination by bureau. The Federal Bureau of Investigation
|
|
may disseminate information and records obtained under this section
|
|
only as provided in guidelines approved by the Attorney General for
|
|
foreign intelligence collection and foreign counterintelligence
|
|
investigations conducted by the Federal Bureau of Investigation,
|
|
and, with respect to dissemination to an agency of the United
|
|
States, only if such information is clearly relevant to the
|
|
authorized responsibilities of such agency.
|
|
|
|
(e) Requirement that certain Congressional bodies be informed. On
|
|
a semiannual basis the Director of the Federal Bureau of
|
|
Investigation shall fully inform the Permanent Select Committee on
|
|
Intelligence of the House of Representatives and the Select
|
|
Committee on Intelligence of the Senate concerning all requests
|
|
made under subsection (b) of this section.
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2710. Wrongful disclosure of video tape rental or sale records
|
|
|
|
(a) Definitions. For purposes of this section-
|
|
|
|
(1) the term "consumer" means any renter, purchaser, or
|
|
subscriber of goods or services from a video tape service provider;
|
|
|
|
(2) the term "ordinary course of business" means only debt
|
|
collection activities, order fulfillment, request processing, and
|
|
the transfer of ownership;
|
|
|
|
(3) the term "personally identifiable informa-
|
|
tion" includes information which identifies a person as having
|
|
requested or obtained specific video materials or services from
|
|
a video tape service provider; and
|
|
|
|
(4) the term "video tape service provider" means any person,
|
|
engaged in the business, in or affecting interstate or foreign
|
|
commerce, of rental, sale, or delivery of prerecorded video
|
|
cassette tapes or similar audio visual materials, or any person
|
|
or other entity to whom a disclosure is made under subparagraph
|
|
(D) or (E) of subsection (b)(2), but only with respect to the
|
|
information contained in the disclosure.
|
|
|
|
(b) Video tape rental and sale records.
|
|
|
|
(1) A video tape service
|
|
provider who knowingly discloses, to any person, personally
|
|
identifiable information concerning any consumer of such provider
|
|
shall be liable to the aggrieved person for the relief provided in
|
|
subsection (d).
|
|
|
|
(2) A video tape service provider may disclose personally
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identifiable information concerning any consumer-
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|
|
|
(A) to the consumer;
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|
|
|
(B) to any person with the informed, written consent of the
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|
consumer given at the time the disclosure is sought;
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|
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|
(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;
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|
|
|
(D) to any person if the disclosure is solely of the names and
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|
addresses of consumers and if-
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|
|
|
(i) the video tape service provider has provided the
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|
consumer with the opportunity, in a clear and conspicuous manner,
|
|
to prohibit such disclosure; and
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|
|
|
(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;
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|
|
|
(E) to any person if the disclosure is incident to
|
|
the ordinary course of business of the video tape service provider;
|
|
or
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|
|
|
(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-
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|
|
|
(i) the consumer is given reasonable notice, by the person
|
|
seeking the disclosure, of the court proceeding relevant to the
|
|
issuance of the court order; and
|
|
|
|
(ii) the consumer is afforded the opportunity to appear
|
|
and contest the claim of the person seeking the disclosure.
|
|
|
|
If an order is granted pursuant to subparagraph (C) or (F),
|
|
the court shall impose appropriate safeguards against unauthorized
|
|
disclosure.
|
|
|
|
(3) Court orders authorizing disclosure under subparagraph (C)
|
|
shall issue only with prior notice to the consumer and only if the
|
|
law enforcement agency shows that there is probable cause to
|
|
believe that the records or other information sought are relevant
|
|
to a legitimate law enforcement inquiry. In the case of a State
|
|
government authority, such a court order shall not issue if
|
|
prohibited by the law of such State. A court issuing an order
|
|
pursuant to this section, on a motion made promptly by the video
|
|
tape service provider, may quash or modify such order if the
|
|
information or records requested are unreasonably voluminous in
|
|
nature or if compliance with such order otherwise would cause an
|
|
unreasonable burden on such provider.
|
|
|
|
(c) Civil action.
|
|
|
|
(1) Any person aggrieved by any act of a person
|
|
in violation of this section may bring a civil action in a United
|
|
States district court.
|
|
|
|
(2) The court may award-
|
|
|
|
(A) actual damages but not less than liquidated damages in
|
|
an amount of $ 2,500;
|
|
|
|
(B) punitive damages;
|
|
|
|
(C) reasonable attorneys' fees and other litigation costs
|
|
reasonably incurred; and
|
|
|
|
(D) such other preliminary and equitable relief as the
|
|
court determines to be appropriate.
|
|
|
|
(3) No action may be brought under this subsection unless such
|
|
action is begun within 2 years from the date of the act complained
|
|
of or the date of discovery.
|
|
|
|
(4) No liability shall result from lawful disclosure permitted
|
|
by this section.
|
|
|
|
(d) Personally identifiable information. Personally identifiable
|
|
information obtained in any manner other than as provided in this
|
|
section shall not be received in evidence in any trial, hearing,
|
|
arbitration, or other proceeding in or before any court, grand
|
|
jury, department, officer, agency, regulatory body, legislative
|
|
committee, or other authority of the United States, a State, or a
|
|
political subdivision of a State.
|
|
|
|
(e) Destruction of old records. A person subject to this section
|
|
shall destroy personally identifiable information as soon as
|
|
practicable, but no later than one year from the date the informa-
|
|
tion is no longer necessary for the purpose for which it was
|
|
collected and there are no pending requests or orders for access
|
|
to such information under subsection (b)(2) or (c)(2) or pursuant
|
|
to a court order.
|
|
|
|
(f) Preemption. The provisions of this section preempt only the
|
|
provisions of State or local law that require disclosure prohibited
|
|
by this section.
|
|
|
|
CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
|
|
TRANSACTIONAL RECORDS ACCESS
|
|
|
|
s 2711. Definitions for chapter
|
|
|
|
As used in this chapter [18 USC ss 2701 et seq.]-
|
|
|
|
(1) the terms defined in section 2510 of this title have,
|
|
respectively, the definitions given such terms in that section; and
|
|
|
|
(2) the term "remote computing service" means the provision to
|
|
the public of computer storage or processing services by means of
|
|
an electronic communications system.
|
|
|
|
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