FALL 2010
Cyberlaw
Course No.: 9200-710 (& 810)-001
Course ID:  85723 & 85725
Time: M, W 4:45-6:15 p.m.
Room TBD
Professor Jay Dratler, Jr.
Across from Room 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010  Jay Dratler, Jr.  
For permission, see CMI.

Electronic Communications Privacy Act

(Citations to United States Code)

Title 18.  Crimes and Criminal Procedure
Part I.  Crimes
Chapter 119.  Wire And Electronic Communications Interception
and Interception of Oral Communications


18 U.S.C. § 2510.  Definitions

As used in this chapter—
    (1)  "wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce;
    (2)  "oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication;
* * *
    (4)  "intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.
    (5)  "electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than—
      (a)  any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;

      (b)  a hearing aid or similar device being used to correct subnormal hearing to not better than normal;
    (6)  "person" means any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation;
    (7)  "Investigative or law enforcement officer" means any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses;
    (8)  "contents", when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication;
    (9)  "Judge of competent jurisdiction" means—
      (a)  a judge of a United States district court or a United States court of appeals; and

      (b)  a judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interceptions of wire, oral, or electronic communications;
    (10)  "communication common carrier" has the meaning given that term in section 3 of the Communications Act of 1934 [47 U.S.C. § 153];
    (11)  "aggrieved person" means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed;
    (12)  "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include—
      (A)  any wire or oral communication;

      (B)  any communication made through a tone-only paging device;

      (C)  any communication from a tracking device (as defined in section 3117 of this title); or

      (D)  electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;
    (13)  "user" means any person or entity who—
      (A)  uses an electronic communication service; and

      (B)  is duly authorized by the provider of such service to engage in such use;
    (14)  "electronic communications system" means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications;
    (15)  "electronic communication service" means any service which provides to users thereof the ability to send or receive wire or electronic communications;
    (16)  "readily accessible to the general public" means, with respect to a radio communication, that such communication is not—
      (A)  scrambled or encrypted;

      (B)  transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication;

      (C)  carried on a subcarrier or other signal subsidiary to a radio transmission;

      (D)  transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication; or

      (E)  transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio;

      (F)  [Deleted]
    (17)  "electronic storage" means—
      (A)  any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

      (B)  any storage of such communication by an electronic communication service for purposes of backup protection of such communication;
    (18)  "aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception; (19) "foreign intelligence information", for purposes of section 2517(6) of this title, means—

      (A)  information, whether or not concerning a United States person, that relates to the ability of the United States to protect against

        (i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

        (ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

        (iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

      (B)  information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to

        (i) the national defense or the security of the United States; or

        (ii) the conduct of the foreign affairs of the United States;

    (20) "protected computer" has the meaning set forth in section 1030; and

    (21) "computer trespasser"—

      (A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and

      (B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer.


STATUTORY NOTES

Short Title: Act Oct. 21, 1986, P.L. 99-508, § 1, 100 Stat. 1848, provides: "This Act may be cited as the ‘Electronic Communications Privacy Act of 1986'."

Congressional findings: Act June 19, 1968, P.L. 90-351, Title III, § 801, 82 Stat. 211, provides:

"On the basis of its own investigations and of published studies, the Congress makes the following findings:
    "(a)  Wire communications are normally conducted through the use of facilities which form part of an interstate network.  The same facilities are used for interstate and intrastate communications.  There has been extensive wiretapping carried on without legal sanctions and without the consent of any of the parties to the conversation.  Electronic, mechanical, and other intercepting devices are being used to overhear oral conversations made in private, without the consent of any of the parties to such communications.  The contents of these communications and evidence derived therefrom are being used by public and private parties as evidence in court and administrative proceedings, and by persons whose activities affect interstate commerce.  The possession, manufacture, distribution, advertising, and use of these devices are facilitated by interstate commerce.
    "(b)  In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized, to prohibit any unauthorized interception of such communications, and the use of the contents thereof in evidence in courts and administrative proceedings.
    "(c)  Organized criminals make extensive use of wire and oral communications in their criminal activities.  The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice.
    "(d)  To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.  Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurances that the interception is justified and that the information obtained thereby will not be misused."

Intelligence activities: Act Oct. 21, 1986, P.L. 99-508, Title I, § 107, 100 Stat. 1858, provides:
    "(a) In general.  Nothing in this Act or the amendments made by this Act constitutes authority for the conduct of any intelligence activity.
    "(b) Certain activities under procedures approved by the Attorney General.  Nothing in chapter 119 or chapter 121 of title 18, United States Code, shall affect the conduct, by officers or employees of the United States Government in accordance with other applicable Federal law, under procedures approved by the Attorney General of activities intended to—
      "(1)  intercept encrypted or other official communications of United States executive branch entities or United States Government contractors for communications security purposes;

      "(2)  intercept radio communications transmitted between or among foreign powers or agents of a foreign power as defined by the Foreign Intelligence Surveillance Act of 1978; or

      "(3)  access an electronic communication system used exclusively by a foreign power or agent of a foreign power as defined by the Foreign Intelligence Surveillance Act of 1978.".
The Amendments made to the ECPA under the post-September 11 "USA Patriot Act of 2001," including changes to the definitions in Paragraphs (1) and (14) and addition of the definitions in Paragraphs 19 - 21, are scheduled to sunset on December 31, 2005.  See Pub.L. No.107-56, Title II, § 224, 115 Stat. 295 Oct. 26, 2001).

End of STATUTORY NOTES



18 U.S.C. § 2511.  Interception and disclosure of wire, oral, or electronic communications prohibited


(1) Except as otherwise specifically provided in this chapter any person who—
    (a)  intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
    (b)  intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
      (i)  such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

      (ii)  such device transmits communications by radio, or interferes with the transmission of such communication; or

      (iii)  such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or

      (iv)  such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

      (v)  such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
    (c)  intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
    (d)  intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
    (e)
      (i)  intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter,

      (ii)  knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation,

      (iii)  having obtained or received the information in connection with a criminal investigation, and

      (iv)  with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

(2)
    (a)
      (i)  It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

      (ii)  Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. § 1801] if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

        (A)  a court order directing such assistance or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 signed by the authorizing judge, or

        (B)  a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

      setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required.  No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order or certification under this subparagraph, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate.  Any such disclosure, shall render such person liable for the civil damages provided for in section 2520.  No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.

      (iii)  If a certification under subparagraph (ii)(B) for assistance to obtain foreign intelligence information is based on statutory authority, the certification shall identify the specific statutory provision and shall certify that the statutory requirements have been met.
* * *
    (c)  It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
    (d)  It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
    (e)  Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934 [47 U.S.C. § 605 or 606], it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. § § 1801], as authorized by that Act [50 U.S.C. § §§ 1801 et seq.].
    (f)  Nothing contained in this chapter . . .  shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications [with certain limitations].  * * *
    (g)  It shall not be unlawful under this chapter or chapter 121 of this title [18 U.S.C. § 2701 et seq., set out below] for any person—
      (i)  to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;

      (ii)  to intercept any radio communication which is transmitted—

        (I)  by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;

        (II)  by any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;

        (III)  by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or

        (IV)  by any marine or aeronautical communications system;

    * * *

      (iv)  to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference; or

      (v)  for other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted.
    (h)  It shall not be unlawful under this chapter—
      (i)  to use a pen register or a trap and trace device (as those terms are defined for the purposes of chapter 206 (relating to pen registers and trap and trace devices) of this title) [18 U.S.C. § 3121 et seq.]; or

      (ii)  for a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.
    (i)  [Added by USA Patriot Act of 2001]  It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if—
      (I)  the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer;

      (II)  the person acting under color of law is lawfully engaged in an investigation;

      (III)  the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and

      (IV)  such interception does not acquire communications other than those transmitted to or from the computer trespasser.
(3)
    (a)  Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
    (b)  A person or entity providing electronic communication service to the public may divulge the contents of any such communication—
      (i)  as otherwise authorized in section 2511(2)(a) or 2517 of this title;

      (ii)  with the lawful consent of the originator or any addressee or intended recipient of such communication;

      (iii)  to a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or

      (iv)  which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency.
(4)
    (a)  Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.
    (b)  Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted—
      (i)  to a broadcasting station for purposes of retransmission to the general public; or

      (ii)  as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls,
    is not an offense under this subsection unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain.
(5)
    (a)
      (i)  If the communication is—

        (A)  a private satellite video communication that is not scrambled or encrypted and the conduct in violation of this chapter is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or

        (B)  a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of this chapter is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain,

      then the person who engages in such conduct shall be subject to suit by the Federal Government in a court of competent jurisdiction.

      (ii)  In an action under this subsection—

        (A)  if the violation of this chapter is a first offense for the person under paragraph (a) of subsection (4) and such person has not been found liable in a civil action under section 2520 of this title, the Federal Government shall be entitled to appropriate injunctive relief; and

        (B)  if the violation of this chapter is a second or subsequent offense under paragraph (a) of subsection (4) or such person has been found liable in any prior civil action under section 2520, the person shall be subject to a mandatory $ 500 civil fine.
    (b)  The court may use any means within its authority to enforce an injunction issued under paragraph (ii)(A), and shall impose a civil fine of not less than $ 500 for each violation of such an injunction.

18 U.S.C. § 2512.  Manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices prohibited

(1)  Except as otherwise specifically provided in this chapter any person who intentionally—

    (a)  sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications;
    (b)  manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce; or
    (c)  places in any newspaper, magazine, handbill, or other publication or disseminates by electronic means any advertisement of—
      (i)  any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; or

      (ii)  any other electronic, mechanical, or other device, where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire, oral, or electronic communications,
    knowing the content of the advertisement and knowing or having reason to know that such advertisement will be sent through the mail or transported in interstate or foreign commerce,
shall be fined under this title or imprisoned not more than five years, or both.

(2)  It shall not be unlawful under this section for—
    (a)  a provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of providing that wire or electronic communication service, or
    (b)  an officer, agent, or employee of, or a person under contract with, the United States, a State, or a political subdivision thereof, in the normal course of the activities of the United States, a State, or a political subdivision thereof,
to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.

(3)  It shall not be unlawful under this section to advertise for sale a device described in subsection (1) of this section if the advertisement is mailed, sent, or carried in interstate or foreign commerce solely to a domestic provider of wire or electronic communication service or to an agency of the United States, a State, or a political subdivision thereof which is duly authorized to use such device.


18 U.S.C. § 2513.  Confiscation of wire, oral, or electronic communication intercepting devices

Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of section 2511 or section 2512 of this chapter may be seized and forfeited to the United States.  * * *


[18 U.S.C. § 2514.  Repealed]


18 U.S.C. § 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 U.S.C. § 2516.  Authorization for interception of wire, oral, or electronic communications


(1)  The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of [one or more of a long list of specific federal crimes, whihch is frequently amended, and to which the USA Patriot Act of 2001 added certain crimes, including felony computer crimes, chemical weapons violations, and terrorism]. * * *

(2)  The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.

(3)  Any attorney for the Government (as such term is defined for the purposes of the Federal Rules of Criminal Procedure) may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant, in conformity with section 2518 of this title, an order authorizing or approving the interception of electronic communications by an investigative or law enforcement officer having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of any Federal felony.


18 U.S.C. § 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.

(6)  [Added by USA Patriot Act of 2001]  Any investigative or law enforcement officer, or attorney for the Government, 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 any other Federal law enforcement, intelligence, protective, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or counterintelligence [as defined in certain other laws], or foreign intelligence information (as defined in subsection (19) of section 2510 of this title), to assist the official who is to receive that information in the performance of his official duties.  Any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.

(7)  [Added in 2002] Any investigative or law enforcement officer, or other Federal official in carrying out official duties as such Federal official, 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 or derivative evidence to a foreign 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, and foreign investigative or law enforcement officers may use or disclose such contents or derivative evidence to the extent such use or disclosure is appropriate to the proper performance of their official duties.

(8)  [Added in 2002] Any investigative or law enforcement officer, or other Federal official in carrying out official duties as such Federal official, 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 or derivative evidence to any appropriate Federal, State, local, or foreign government official to the extent that such contents or derivative evidence reveals a threat of actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, for the purpose of preventing or responding to such a threat.  Any official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information, and any State, local, or foreign official who receives information pursuant to this provision may use that information only consistent with such guidelines as the Attorney General and Director of Central Intelligence shall jointly issue.

18 U.S.C. § 2518.  Procedure for interception of wire, oral, or electronic communications


(1)  Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application.  Each application shall include the following information:
    (a)  the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
    (b)  a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) except as provided in subsection (11), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
    (c)  a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
    (d)  a statement of the period of time for which the interception is required to be maintained.  If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
    (e)  a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and
    (f)  where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
(2)  The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

(3)  Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction), if the judge determines on the basis of the facts submitted by the applicant that—
    (a)  there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
    (b)  there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
    (c)  normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
    (d)  except as provided in subsection (11), there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
(4)  Each order authorizing or approving the interception of any wire, oral, or electronic communication under this chapter shall specify—
    (a)  the identity of the person, if known, whose communications are to be intercepted;
    (b)  the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
    (c)  a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
    (d)  the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
    (e)  the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
An order authorizing the interception of a wire, oral, or electronic communication under this chapter shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is according the person whose communications are to be intercepted.  Any provider of wire or electronic communication service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant for reasonable expenses incurred in providing such facilities or assistance.  * * *

(5)  No order entered under this section may authorize or approve the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days.  Such thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered.  Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section.  The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days.  Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter and must terminate upon attainment of the authorized objective, or in any event in thirty days.  In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.  An interception under this chapter may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

(6)  Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception.  Such reports shall be made at such intervals as the judge may require.

(7)  Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—
    (a)  an emergency situation exists that involves—
      (i)  immediate danger of death or serious physical injury to any person,

      (ii)  conspiratorial activities threatening the national security interest, or

      (iii)  conspiratorial activities characteristic of organized crime,
    that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained, and
    (b)  there are grounds upon which an order could be entered under this chapter to authorize such interception,
may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur.  In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier.  In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application.

(8)
    (a)  The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device.  The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such way as will protect the recording from editing or other alterations.  Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.  Custody of the recordings shall be wherever the judge orders.  They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years.  Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations.  The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517.
    (b)  Applications made and orders granted under this chapter shall be sealed by the judge.  Custody of the applications and orders shall be wherever the judge directs.  Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.
    (c)  Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying judge.
    (d)  Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of—
      (1)  the fact of the entry of the order or the application;

      (2)  the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and

      (3)  the fact that during the period wire, oral, or electronic communications were or were not intercepted.
    The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice.  On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.
(9)  The contents of any wire, oral, or electronic communication intercepted pursuant to this chapter or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved.  This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.

(10)
    (a)  Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—
      (i)  the communication was unlawfully intercepted;

      (ii)  the order of authorization or approval under which it was intercepted is insufficient on its face; or

      (iii)  the interception was not made in conformity with the order of authorization or approval.
    Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion.  If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter.  The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.
    (b)  In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion to suppress made under paragraph (a) of this subsection, or the denial of an application for an order of approval, if the United States attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for purposes of delay.  Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.
    (c)  The remedies and sanctions described in this chapter with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this chapter involving such communications.
(11)  The requirements of subsections (1)(b)(ii) and (3)(d) of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply [with judicial approval under specified circumstances]  * * *

(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)(a) shall not begin until 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.


18 U.S.C. § 2519.  Reports concerning intercepted wire, oral, or electronic communications

(1)  In January of each year, any judge who has issued an order (or an extension thereof) under section 2518 that expired during the preceding year, or who has denied approval of an interception during that year, shall report to the Administrative Office of the United States Courts [specified information about the application for the order and its results and implementation]  * * *

(2)  In March 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 [specified information with respect to all applications for orders and extensions during the preceding calendar years, including resulting arrests, trials, motions to suppress and their outcomes, and convictions] * * *.

(3)  In June 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.


18 U.S.C. § 2520.  Recovery of civil damages authorized

(a)  In general.  Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States [exception added by USA Patriot Act of 2001], which engaged in that violation such relief as may be appropriate.

(b)  Relief.  In an action under this section, appropriate relief includes—
      (1)  such preliminary and other equitable or declaratory relief as may be appropriate;

      (2)  damages under subsection (c) and punitive damages in appropriate cases; and

      (3)  a reasonable attorney's fee and other litigation costs reasonably incurred.
(c)  Computation of damages.
      (1)  In an action under this section, if the conduct in violation of this chapter is the private viewing of a private satellite video communication that is not scrambled or encrypted or if the communication is a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess damages as follows:

        (A)  If the person who engaged in that conduct has not previously been enjoined under section 2511(5) and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $ 50 and not more than $ 500.

        (B)  If, on one prior occasion, the person who engaged in that conduct has been enjoined under section 2511(5) or has been found liable in a civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $ 100 and not more than $ 1000.

      (2)  In any other action under this section, the court may assess as damages whichever is the greater of—

        (A)  the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or

        (B)  statutory damages of whichever is the greater of $ 100 a day for each day of violation or $ 10,000.
(d)  Defense.  A good faith reliance on—
      (1)  a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

      (2)  a request of an investigative or law enforcement officer under section 2518(7) of this title; or

      (3)  a good faith determination that section 2511(3) or 2511(2)(i) 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. (f)  [Added by USA Patriot Act of 2001]  Administrative discipline.  If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted.  If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.

(g)  [Added by USA Patriot Act of 2001]  Improper disclosure is violation.  Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of information beyond the extent permitted by section 2517 is a violation of this chapter for purposes of section 2520(a).

18 U.S.C. § 2521.  Injunction against illegal interception

Whenever it shall appear that any person is engaged or is about to engage in any act which constitutes or will constitute a felony violation of this chapter, the Attorney General may initiate a civil action in a district court of the United States to enjoin such violation.  The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought.  A proceeding under this section is governed by the Federal Rules of Civil Procedure, except that, if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure.

* * *
 

Chapter 121.  Stored Wire and Electronic Communications and Transactional Records Access



18 U.S.C. § 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, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State—
      (A)  a fine under this title or imprisonment for not more than 5 years, 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 ten years, or both, for any subsequent offense under this subparagraph; and

    (2)  in any other case—

      (A)  a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and

      (B)  a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section.

(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.

18 U.S.C. § 2702.   Voluntary disclosure of customer communications or records


(a)  Prohibitions.  Except as provided in subsection (b) or (c)—
    (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;

      (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; and

    (3)  a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.
(b)  Exceptions for disclosure of communications.  A provider described in subsection (a) may divulge the contents of a communication—

    (1)  to an addressee or intended recipient of such communicationor 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;

    (6)  to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A [18 USCS § 2258A];

    (7)  to a law enforcement agency—

      (A)  if the contents—

        (i)  were inadvertently obtained by the service provider; and

        (ii)  appear to pertain to the commission of a crime; or

      (B)  [Deleted]

    (8)  to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.

(c)  [Added by USA Patriot Act of 2001]  Exceptions for disclosure of customer records.  A provider described in subsection (a) may divulge 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)(1) or (a)(2))—
    (1)  as otherwise authorized in section 2703;

    (2)  with the lawful consent of the customer or subscriber;

    (3)  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;

    (4)  to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;

    (5)  to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A [18 U.S.C. § 2258A]; or

    (6)  to any person other than a governmental entity.

(d)  Reporting of emergency disclosures.  On an annual basis, the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing—

    (1)  the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8); and

    (2)  a summary of the basis for disclosure in those instances where—

      (A)  voluntary disclosures under subsection (b)(8) were made to the Department of Justice; and

      (B)  the investigation pertaining to those disclosures was closed without the filing of criminal charges.


18 U.S.C. § 2703. [Substantially revised by USA Patriot Act of 2001]  Required disclosure of customer communications or records

(a)  Contents of wire or electronic communications in electronic storage.  A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or 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 using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.  A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or 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 wire or 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 wire or 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 using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; 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 wire or 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 governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity—
      (A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction;

      (B) obtains a court order for such disclosure under subsection (d) of this section;

      (C) has the consent of the subscriber or customer to such disclosure;

      (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or

      (E) seeks information under paragraph (2).
    (2)  A provider of electronic communication service or remote computing service shall disclose to a governmental entity the—
      (A) name;

      (B) address;

      (C) local and long distance telephone connection records, or records of session times and durations;

      (D) length of service (including start date) and types of service utilized;

      (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

      (F) means and source of payment for such service (including any credit card or bank account number),
    of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).
    (3)  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) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State.  A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

(e)  No cause of action against a provider disclosing information under this chapter.  No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.

(f) Requirement to preserve evidence.
    (1)  In general.  A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

    (2)  Period of retention.  Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

(g)  Presence of officer not required.  Notwithstanding section 3105 of this title [18 U.S.C. § 3105], the presence of an officer shall not be required for service or execution of a search warrant issued in accordance with this chapter [18 U.S.C. §§ 2701 et seq.] requiring disclosure by a provider of electronic communications service or remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service.


18 U.S.C. § 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.  * * *  [Contents of required affidavit omitted.]
    (2)  Service shall be made under this section upon a governmental entity by delivering or mailing by registered or certified mail a copy of the papers to the person, office, or department specified in the notice which the customer has received pursuant to this chapter.  For the purposes of this section, the term "delivery" has the meaning given that term in the Federal Rules of Civil Procedure.
    (3)  If the court finds that the customer has complied with paragraphs (1) and (2) of this subsection, the court shall order the governmental entity to file a sworn response, which may be filed in camera if the governmental entity includes in its response the reasons which make in camera review appropriate.  If the court is unable to determine the motion or application on the basis of the parties' initial allegations and response, the court may conduct such additional proceedings as it deems appropriate.  All such proceedings shall be completed and the motion or application decided as soon as practicable after the filing of the governmental entity's response.
    (4)  If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the governmental entity are maintained, or that there is a reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall deny the motion or application and order such process enforced.  If the court finds that the applicant is the subscriber or customer for whom the communications sought by the governmental entity are maintained, and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry, or that there has not been substantial compliance with the provisions of this chapter, it shall order the process quashed.
    (5)  A court order denying a motion or application under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer.

18 U.S.C. § 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.

18 U.S.C. § 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.
SERVICE

18 U.S.C. § 2707.  Civil action


(a)  Cause of action.  Except as provided in section 2703(e), any provider of electronic communication service, subscriber, or other person 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, other than the United States [exception added by USA Patriot Act of 2001], 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.  If the violation is willful or intentional, the court may assess punitive damages.  In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.


(d)  Administrative discipline.  [Substantially revised by USA Patriot Act of 2001]  If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted.  If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.

(e)  Defense.  A good faith reliance on—
    (1)  a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703(f) of this title) [parenthetical added by USA Patriot Act of 2001];
    (2)  a request of an investigative or law enforcement officer under section 2518(7) of this title; or
    (3)  a good faith determination that section 2511(3) of this title permitted the conduct complained of;
is a complete defense to any civil or criminal action brought under this chapter or any other law.

(f)  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. (g)  Improper disclosure.  [Added by USA Patriot Act of 2001]  Any willful disclosure of a "record", as that term is defined in section 552a(a) of title 5, United States Code, obtained by an investigative or law enforcement officer, or a governmental entity, pursuant to section 2703 of this title, or from a device installed pursuant to section 3123 or 3125 of this title, that is not a disclosure made in the proper performance of the official functions of the officer or governmental entity making the disclosure, is a violation of this chapter.  This provision shall not apply to information previously lawfully disclosed (prior to the commencement of any civil or administrative proceeding under this chapter) to the public by a Federal, State, or local governmental entity or by the plaintiff in a civil action under this chapter.


18 U.S.C. § 2708.  Exclusivity of remedies

The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.


18 U.S.C. § 2709.  [Substantially revised by USA Patriot Act of 2001]  Counterintelligence access to telephone toll and transactional records


(a)  Duty to provide.  A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

(b)  Required certification.  The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—
    (1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
    (2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(c)  Prohibition of certain disclosure.

    (1)  If the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

    (2)  The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1).

    (3)  Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assistance with respect to the request shall inform such person of any applicable nondisclosure requirement.  Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).

    (4)  At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the Director or such designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a).
(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, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all requests made under subsection (b) of this section.

(f)  Libraries.  A library (as that term is defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), the services of which include access to the Internet, books, journals, magazines, newspapers, or other similar forms of communication in print or digitally by patrons for their use, review, examination, or circulation, is not a wire or electronic communication service provider for purposes of this section, unless the library is providing the services defined in section 2510(15) ("electronic communication service") of this title [18 U.S.C. § 2510(15)].


18 U.S.C. § 2710.  Wrongful disclosure of video tape rental or sale records


(a)  Definitions.  For purposes of this section
    (1) the term "consumer" means any renter, purchaser, or subscriber of goods or services from a video tape service provider;
    (2)  the term "ordinary course of business" means only debt collection activities, order fulfillment, request processing, and the transfer of ownership;
    (3)  the term "personally identifiable information" includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider; and
    (4)  the term "video tape service provider" means any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials, or any person or other entity to whom a disclosure is made under subparagraph (D) or (E) of subsection (b)(2), but only with respect to the information contained in the disclosure.
(b)  Video tape rental and sale records.
    (1)  A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d).
    (2)  A video tape service provider may disclose personally identifiable information concerning any consumer—
      (A)  to the consumer;

      (B)  to any person with the informed, written consent of the consumer given at the time the disclosure is sought;

      (C)  to a law enforcement agency pursuant to a warrant issued under the Federal Rules of Criminal Procedure, an equivalent State warrant, a grand jury subpoena, or a court order;

      (D)  to any person if the disclosure is solely of the names and addresses of consumers and if—

        (i)  the video tape service provider has provided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure; and

        (ii)  the disclosure does not identify the title, description, or subject matter of any video tapes or other audio visual material; however, the subject matter of such materials may be disclosed if the disclosure is for the exclusive use of marketing goods and services directly to the consumer;

      (E)  to any person if the disclosure is incident to the ordinary course of business of the video tape service provider; or

      (F)  pursuant to a court order, in a civil proceeding upon a showing of compelling need for the information that cannot be accommodated by any other means, if—

        (i)  the consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order; and

        (ii)  the consumer is afforded the opportunity to appear and contest the claim of the person seeking the disclosure.

    If an order is granted pursuant to subparagraph (C) or (F), the court shall impose appropriate safeguards against unauthorized disclosure.
    (3)  Court orders authorizing disclosure under subparagraph (C) shall issue only with prior notice to the consumer and only if the law enforcement agency shows that there is probable cause to believe that the records or other information sought are relevant to a legitimate law enforcement inquiry. In the case of a State government authority, such a court order shall not issue if prohibited by the law of such State.  * * *
(c)  Civil action.
    (1)  Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court.
    (2)  The court may award—
      (A)  actual damages but not less than liquidated damages in an amount of $ 2,500;

      (B)  punitive damages;

      (C)  reasonable attorneys' fees and other litigation costs reasonably incurred; and

      (D)  such other preliminary and equitable relief as the court determines to be appropriate.
    (3)  No action may be brought under this subsection unless such action is begun within 2 years from the date of the act complained of or the date of discovery.
    (4)  No liability shall result from lawful disclosure permitted by this section.
(d)  Personally identifiable information.  Personally identifiable information obtained in any manner other than as provided in this section shall not be received in evidence in any trial, hearing, arbitration, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision of a State.

(e)  Destruction of old records.  A person subject to this section shall destroy personally identifiable information as soon as practicable, but no later than one year from the date the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection (b)(2) or (c)(2) or pursuant to a court order.

(f)  Preemption.  The provisions of this section preempt only the provisions of State or local law that require disclosure prohibited by this section.



18 U.S.C. § 2711.  Definitions for chapter


As used in this chapter—
    (1)  the terms defined in section 2510 of this title have, respectively, the definitions given such terms in that section; and
    (2)  the term "remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system;

    (3)  the term "court of competent jurisdiction" includes—

      (A)  any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that—

        (i)  has jurisdiction over the offense being investigated;

        (ii)  is in or for a district in which the provider of a wire or electronic communication service is located or in which the wire or electronic communications, records, or other information are stored; or

        (iii)  is acting on a request for foreign assistance pursuant to section 3512 of this title [18 U.S.C. § 3512]; or

      (B)  a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants; and

    (4)  the term "governmental entity" means a department or agency of the United States or any State or political subdivision thereof.
* * *


18 U.S.C. § 2712. Civil actions against the United States [Added by USA Patriot Act of 2001]


(a)  In general.  Any person who is aggrieved by any willful violation of this chapter [of or certain other laws] may commence an action in United States District Court against the United States to recover money damages.  In any such action, if a person who is aggrieved successfully establishes such a violation of this chapter [or of such other laws], the Court may assess as damages—
    (1) actual damages, but not less than $ 10,000, whichever amount is greater; and
    (2) litigation costs, reasonably incurred.
(b)  Procedures.
    (1)  Any action against the United States under this section may be commenced only after a claim is presented to the appropriate department or agency under the procedures of the Federal Tort Claims Act, as set forth in title 28, United States Code.
    (2)  Any action against the United States under this section shall be forever barred unless it is presented in writing to the appropriate Federal agency within 2 years after such claim accrues or unless action is begun within 6 months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.  The claim shall accrue on the date upon which the claimant first has a reasonable opportunity to discover the violation.
    (3)  Any action under this section shall be tried to the court without a jury.
* * *

(c)  Administrative discipline.  If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted.  If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.

(d)  Exclusive remedy.  Any action against the United States under this subsection shall be the exclusive remedy against the United States for any claims within the purview of this section.

(e)  Stay of proceedings.
    (1)  Upon the motion of the United States, the court shall stay any action commenced under this section if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related investigation or the prosecution of a related criminal case.  Such a stay shall toll the limitations periods of paragraph (2) of subsection (b).
* * *

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