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8 August 1999
Source:
http://www.access.gpo.gov/su_docs/aces/aaces002.html
Pen Registers and Trap and Trace Devices - 18 USC Chapter 206
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 27, 1998]
[Document not affected by Public Laws enacted between
January 27, 1998 and November 30, 1998]
[CITE: 18USC]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL
RECORDS ACCESS
Sec.
2701. Unlawful access to stored communications.
2702. Disclosure of contents.
2703. Requirements for governmental access.
2704. Backup preservation.
2705. Delayed notice.
2706. Cost reimbursement.
2707. Civil action.
2708. Exclusivity of remedies.
2709. Counterintelligence access to telephone toll and
transactional records.
2710. Wrongful disclosure of video tape rental or sale records.
2711. Definitions for chapter.
Amendments
1988--Pub. L. 100-690, title VII, Sec. 7067, Nov. 18, 1988, 102
Stat. 4405, which directed amendment of item 2710 by inserting ``for
chapter'' after ``Definitions'' was executed by making the insertion in
item 2711 to reflect the probable intent of Congress and the intervening
redesignation of item 2710 as 2711 by Pub. L. 100-618, see below.
Pub. L. 100-618, Sec. 2(b), Nov. 5, 1988, 102 Stat. 3197, added item
2710 and redesignated former item 2710 as 2711.
Chapter Referred to in Other Sections
This chapter is referred to in section 2511 of this title; title 47
section 1008.
[CITE: 18USC2701]
Sec. 2701. Unlawful access to stored communications
(a) Offense.--Except as provided in subsection (c) of this section
whoever--
(1) intentionally accesses without authorization a facility
through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that
facility;
and thereby obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage in such
system shall be punished as provided in subsection (b) of this section.
(b) Punishment.--The punishment for an offense under subsection (a)
of this section is--
(1) if the offense is committed for purposes of commercial
advantage, malicious destruction or damage, or private commercial
gain--
(A) a fine under this title or imprisonment for not more
than one year, or both, in the case of a first offense under
this subparagraph; and
(B) a fine under this title or imprisonment for not more
than two years, or both, for any subsequent offense under this
subparagraph; and
(2) a fine under this title or imprisonment for not more than
six months, or both, in any other case.
(c) Exceptions.--Subsection (a) of this section does not apply with
respect to conduct authorized--
(1) by the person or entity providing a wire or electronic
communications service;
(2) by a user of that service with respect to a communication of
or intended for that user; or
(3) in section 2703, 2704 or 2518 of this title.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1860; amended Pub. L. 103-322, title XXXIII, Sec. 330016(1)(K), (U),
Sept. 13, 1994, 108 Stat. 2147, 2148; Pub. L. 104-294, title VI,
Sec. 601(a)(3), Oct. 11, 1996, 110 Stat. 3498.)
Amendments
1996--Subsec. (b)(1)(A), (2). Pub. L. 104-294 substituted ``fine
under this title'' for ``fine of under this title''.
1994--Subsec. (b)(1)(A). Pub. L. 103-322, Sec. 330016(1)(U),
substituted ``under this title'' for ``not more than $250,000''.
Subsec. (b)(2). Pub. L. 103-322, Sec. 330016(1)(K), substituted
``under this title'' for ``not more than $5,000''.
Effective Date
Section 202 of title II of Pub. L. 99-508 provided that: ``This
title and the amendments made by this title [enacting this chapter]
shall take effect ninety days after the date of the enactment of this
Act [Oct. 21, 1986] and shall, in the case of conduct pursuant to a
court order or extension, apply only with respect to court orders or
extensions made after this title takes effect.''
Short Title of 1988 Amendment
Pub. L. 100-618, Sec. 1, Nov. 5, 1988, 102 Stat. 3195, provided
that: ``This Act [enacting section 2710 of this title and renumbering
former section 2710 as 2711 of this title] may be cited as the `Video
Privacy Protection Act of 1988'.''
[CITE: 18USC2702]
Sec. 2702. Disclosure of contents
(a) Prohibitions.--Except as provided in subsection (b)--
(1) a person or entity providing an electronic communication
service to the public shall not knowingly divulge to any person or
entity the contents of a communication while in electronic storage
by that service; and
(2) a person or entity providing remote computing service to the
public shall not knowingly divulge to any person or entity the
contents of any communication which is carried or maintained on that
service--
(A) on behalf of, and received by means of electronic
transmission from (or created by means of computer processing of
communications received by means of electronic transmission
from), a subscriber or customer of such service; and
(B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the
provider is not authorized to access the contents of any such
communications for purposes of providing any services other than
storage or computer processing.
(b) Exceptions.--A person or entity may divulge the contents of a
communication--
(1) to an addressee or intended recipient of such communication
or an agent of such addressee or intended recipient;
(2) as otherwise authorized in section 2517, 2511(2)(a), or 2703
of this title;
(3) with the lawful consent of the originator or an addressee or
intended recipient of such communication, or the subscriber in the
case of remote computing service;
(4) to a person employed or authorized or whose facilities are
used to forward such communication to its destination;
(5) as may be necessarily incident to the rendition of the
service or to the protection of the rights or property of the
provider of that service; or
(6) to a law enforcement agency, if such contents--
(A) were inadvertently obtained by the service provider; and
(B) appear to pertain to the commission of a crime.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1860; amended Pub. L. 100-690, title VII, Sec. 7037, Nov. 18, 1988, 102
Stat. 4399.)
Amendments
1988--Subsec. (b)(2). Pub. L. 100-690 substituted ``2517'' for
``2516''.
Section Referred to in Other Sections
This section is referred to in section 2706 of this title.
[CITE: 18USC2703]
Sec. 2703. Requirements for governmental access
(a) Contents of Electronic Communications in Electronic Storage.--A
governmental entity may require the disclosure by a provider of
electronic communication service of the contents of an electronic
communication, that is in electronic storage in an electronic
communications system for one hundred and eighty days or less, only
pursuant to a warrant issued under the Federal Rules of Criminal
Procedure or equivalent State warrant. A governmental entity may require
the disclosure by a provider of electronic communications services of
the contents of an electronic communication that has been in electronic
storage in an electronic communications system for more than one hundred
and eighty days by the means available under subsection (b) of this
section.
(b) Contents of Electronic Communications in a Remote Computing
Service.--(1) A governmental entity may require a provider of remote
computing service to disclose the contents of any electronic
communication to which this paragraph is made applicable by paragraph
(2) of this subsection--
(A) without required notice to the subscriber or customer, if
the governmental entity obtains a warrant issued under the Federal
Rules of Criminal Procedure or equivalent State warrant; or
(B) with prior notice from the governmental entity to the
subscriber or customer if the governmental entity--
(i) uses an administrative subpoena authorized by a Federal
or State statute or a Federal or State grand jury or trial
subpoena; or
(ii) obtains a court order for such disclosure under
subsection (d) of this section;
except that delayed notice may be given pursuant to section 2705 of
this title.
(2) Paragraph (1) is applicable with respect to any electronic
communication that is held or maintained on that service--
(A) on behalf of, and received by means of electronic
transmission from (or created by means of computer processing of
communications received by means of electronic transmission from), a
subscriber or customer of such remote computing service; and
(B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the provider
is not authorized to access the contents of any such communications
for purposes of providing any services other than storage or
computer processing.
(c) Records Concerning Electronic Communication Service or Remote
Computing Service.--(1)(A) Except as provided in subparagraph (B), a
provider of electronic communication service or remote computing service
may disclose a record or other information pertaining to a subscriber to
or customer of such service (not including the contents of
communications covered by subsection (a) or (b) of this section) to any
person other than a governmental entity.
(B) A provider of electronic communication service or remote
computing service shall disclose a record or other information
pertaining to a subscriber to or customer of such service (not including
the contents of communications covered by subsection (a) or (b) of this
section) to a governmental entity only when the governmental entity--
(i) obtains a warrant issued under the Federal Rules of Criminal
Procedure or equivalent State warrant;
(ii) obtains a court order for such disclosure under subsection
(d) of this section; or
(iii) has the consent of the subscriber or customer to such
disclosure.
(C) A provider of electronic communication service or remote
computing service shall disclose to a governmental entity the name,
address, local and long distance telephone toll billing records,
telephone number or other subscriber number or identity, and length of
service of a subscriber to or customer of such service and the types of
services the subscriber or customer utilized, 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 subparagraph (B).
(2) A governmental entity receiving records or information under
this subsection is not required to provide notice to a subscriber or
customer.
(d) Requirements for Court Order.--A court order for disclosure
under subsection (b) or (c) may be issued by any court that is a court
of competent jurisdiction described in section 3127(2)(A) 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, 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.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1861; amended Pub. L. 100-690, title VII, Secs. 7038, 7039, Nov. 18,
1988, 102 Stat. 4399; Pub. L. 103-322, title XXXIII, Sec. 330003(b),
Sept. 13, 1994, 108 Stat. 2140; Pub. L. 103-414, title II, Sec. 207(a),
Oct. 25, 1994, 108 Stat. 4292; Pub. L. 104-132, title VIII, Sec. 804,
Apr. 24, 1996, 110 Stat. 1305; Pub. L. 104-293, title VI, Sec. 601(b),
Oct. 11, 1996, 110 Stat. 3469; Pub. L. 104-294, title VI, Sec. 605(f),
Oct. 11, 1996, 110 Stat. 3510.)
References in Text
The Federal Rules of Criminal Procedure, referred to in subsecs.
(a), (b)(1)(A), and (c)(1)(B)(i), are set out in the Appendix to this
title.
Amendments
1996--Subsec. (c)(1)(C). Pub. L. 104-293 inserted ``local and long
distance'' after ``address,''.
Subsec. (d). Pub. L. 104-294 substituted ``in section 3127(2)(A)''
for ``in section 3126(2)(A)''.
Subsec. (f). Pub. L. 104-132 added subsec. (f).
1994--Subsec. (c)(1)(B). Pub. L. 103-414, Sec. 207(a)(1)(A),
redesignated cls. (ii) to (iv) as (i) to (iii), respectively, and struck
out former cl. (i) which read as follows: ``uses an administrative
subpoena authorized by a Federal or State statute, or a Federal or State
grand jury or trial subpoena;''.
Subsec. (c)(1)(C). Pub. L. 103-414, Sec. 207(a)(1)(B), added subpar.
(C).
Subsec. (d). Pub. L. 103-414, Sec. 207(a)(2), amended first sentence
generally. Prior to amendment, first sentence read as follows: ``A court
order for disclosure under subsection (b) or (c) of this section may be
issued by any court that is a court of competent jurisdiction set forth
in section 3127(2)(A) of this title and shall issue only if the
governmental entity shows that there is reason to believe the contents
of a wire or electronic communication, or the records or other
information sought, are relevant to a legitimate law enforcement
inquiry.''
Pub. L. 103-322 substituted ``section 3127(2)(A)'' for ``section
3126(2)(A)''.
1988--Subsecs. (b)(1)(B)(i), (c)(1)(B)(i). Pub. L. 100-690,
Sec. 7038, inserted ``or trial'' after ``grand jury''.
Subsec. (d). Pub. L. 100-690, Sec. 7039, inserted ``may be issued by
any court that is a court of competent jurisdiction set forth in section
3126(2)(A) of this title and'' before ``shall issue''.
Section Referred to in Other Sections
This section is referred to in sections 2701, 2702, 2704, 2705,
2706, 2707 of this title.
[CITE: 18USC2704]
Sec. 2704. Backup preservation
(a) Backup Preservation.--(1) A governmental entity acting under
section 2703(b)(2) may include in its subpoena or court order a
requirement that the service provider to whom the request is directed
create a backup copy of the contents of the electronic communications
sought in order to preserve those communications. Without notifying the
subscriber or customer of such subpoena or court order, such service
provider shall create such backup copy as soon as practicable consistent
with its regular business practices and shall confirm to the
governmental entity that such backup copy has been made. Such backup
copy shall be created within two business days after receipt by the
service provider of the subpoena or court order.
(2) Notice to the subscriber or customer shall be made by the
governmental entity within three days after receipt of such
confirmation, unless such notice is delayed pursuant to section 2705(a).
(3) The service provider shall not destroy such backup copy until
the later of--
(A) the delivery of the information; or
(B) the resolution of any proceedings (including appeals of any
proceeding) concerning the government's subpoena or court order.
(4) The service provider shall release such backup copy to the
requesting governmental entity no sooner than fourteen days after the
governmental entity's notice to the subscriber or customer if such
service provider--
(A) has not received notice from the subscriber or customer that
the subscriber or customer has challenged the governmental entity's
request; and
(B) has not initiated proceedings to challenge the request of
the governmental entity.
(5) A governmental entity may seek to require the creation of a
backup copy under subsection (a)(1) of this section if in its sole
discretion such entity determines that there is reason to believe that
notification under section 2703 of this title of the existence of the
subpoena or court order may result in destruction of or tampering with
evidence. This determination is not subject to challenge by the
subscriber or customer or service provider.
(b) Customer Challenges.--(1) Within fourteen days after notice by
the governmental entity to the subscriber or customer under subsection
(a)(2) of this section, such subscriber or customer may file a motion to
quash such subpoena or vacate such court order, with copies served upon
the governmental entity and with written notice of such challenge to the
service provider. A motion to vacate a court order shall be filed in the
court which issued such order. A motion to quash a subpoena shall be
filed in the appropriate United States district court or State court.
Such motion or application shall contain an affidavit or sworn
statement--
(A) stating that the applicant is a customer or subscriber to
the service from which the contents of electronic communications
maintained for him have been sought; and
(B) stating the applicant's reasons for believing that the
records sought are not relevant to a legitimate law enforcement
inquiry or that there has not been substantial compliance with the
provisions of this chapter in some other respect.
(2) Service shall be made under this section upon a governmental
entity by delivering or mailing by registered or certified mail a copy
of the papers to the person, office, or department specified in the
notice which the customer has received pursuant to this chapter. For the
purposes of this section, the term ``delivery'' has the meaning given
that term in the Federal Rules of Civil Procedure.
(3) If the court finds that the customer has complied with
paragraphs (1) and (2) of this subsection, the court shall order the
governmental entity to file a sworn response, which may be filed in
camera if the governmental entity includes in its response the reasons
which make in camera review appropriate. If the court is unable to
determine the motion or application on the basis of the parties' initial
allegations and response, the court may conduct such additional
proceedings as it deems appropriate. All such proceedings shall be
completed and the motion or application decided as soon as practicable
after the filing of the governmental entity's response.
(4) If the court finds that the applicant is not the subscriber or
customer for whom the communications sought by the governmental entity
are maintained, or that there is a reason to believe that the law
enforcement inquiry is legitimate and that the communications sought are
relevant to that inquiry, it shall deny the motion or application and
order such process enforced. If the court finds that the applicant is
the subscriber or customer for whom the communications sought by the
governmental entity are maintained, and that there is not a reason to
believe that the communications sought are relevant to a legitimate law
enforcement inquiry, or that there has not been substantial compliance
with the provisions of this chapter, it shall order the process quashed.
(5) A court order denying a motion or application under this section
shall not be deemed a final order and no interlocutory appeal may be
taken therefrom by the customer.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1863.)
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (b)(2),
are set out in the Appendix to Title 28, Judiciary and Judicial
Procedure.
Section Referred to in Other Sections
This section is referred to in sections 2701, 2706 of this title.
[CITE: 18USC2705]
Sec. 2705. Delayed notice
(a) Delay of Notification.--(1) A governmental entity acting under
section 2703(b) of this title may--
(A) where a court order is sought, include in the application a
request, which the court shall grant, for an order delaying the
notification required under section 2703(b) of this title for a
period not to exceed ninety days, if the court determines that there
is reason to believe that notification of the existence of the court
order may have an adverse result described in paragraph (2) of this
subsection; or
(B) where an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury subpoena is obtained,
delay the notification required under section 2703(b) of this title
for a period not to exceed ninety days upon the execution of a
written certification of a supervisory official that there is reason
to believe that notification of the existence of the subpoena may
have an adverse result described in paragraph (2) of this
subsection.
(2) An adverse result for the purposes of paragraph (1) of this
subsection is--
(A) endangering the life or physical safety of an individual;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation or unduly
delaying a trial.
(3) The governmental entity shall maintain a true copy of
certification under paragraph (1)(B).
(4) Extensions of the delay of notification provided in section 2703
of up to ninety days each may be granted by the court upon application,
or by certification by a governmental entity, but only in accordance
with subsection (b) of this section.
(5) Upon expiration of the period of delay of notification under
paragraph (1) or (4) of this subsection, the governmental entity shall
serve upon, or deliver by registered or first-class mail to, the
customer or subscriber a copy of the process or request together with
notice that--
(A) states with reasonable specificity the nature of the law
enforcement inquiry; and
(B) informs such customer or subscriber--
(i) that information maintained for such customer or
subscriber by the service provider named in such process or
request was supplied to or requested by that governmental
authority and the date on which the supplying or request took
place;
(ii) that notification of such customer or subscriber was
delayed;
(iii) what governmental entity or court made the
certification or determination pursuant to which that delay was
made; and
(iv) which provision of this chapter allowed such delay.
(6) As used in this subsection, the term ``supervisory official''
means the investigative agent in charge or assistant investigative agent
in charge or an equivalent of an investigating agency's headquarters or
regional office, or the chief prosecuting attorney or the first
assistant prosecuting attorney or an equivalent of a prosecuting
attorney's headquarters or regional office.
(b) Preclusion of Notice to Subject of Governmental Access.--A
governmental entity acting under section 2703, when it is not required
to notify the subscriber or customer under section 2703(b)(1), or to the
extent that it may delay such notice pursuant to subsection (a) of this
section, may apply to a court for an order commanding a provider of
electronic communications service or remote computing service to whom a
warrant, subpoena, or court order is directed, for such period as the
court deems appropriate, not to notify any other person of the existence
of the warrant, subpoena, or court order. The court shall enter such an
order if it determines that there is reason to believe that notification
of the existence of the warrant, subpoena, or court order will result
in--
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly
delaying a trial.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1864.)
Section Referred to in Other Sections
This section is referred to in sections 2703, 2704 of this title.
[CITE: 18USC2706]
Sec. 2706. Cost reimbursement
(a) Payment.--Except as otherwise provided in subsection (c), a
governmental entity obtaining the contents of communications, records,
or other information under section 2702, 2703, or 2704 of this title
shall pay to the person or entity assembling or providing such
information a fee for reimbursement for such costs as are reasonably
necessary and which have been directly incurred in searching for,
assembling, reproducing, or otherwise providing such information. Such
reimbursable costs shall include any costs due to necessary disruption
of normal operations of any electronic communication service or remote
computing service in which such information may be stored.
(b) Amount.--The amount of the fee provided by subsection (a) shall
be as mutually agreed by the governmental entity and the person or
entity providing the information, or, in the absence of agreement, shall
be as determined by the court which issued the order for production of
such information (or the court before which a criminal prosecution
relating to such information would be brought, if no court order was
issued for production of the information).
(c) Exception.--The requirement of subsection (a) of this section
does not apply with respect to records or other information maintained
by a communications common carrier that relate to telephone toll records
and telephone listings obtained under section 2703 of this title. The
court may, however, order a payment as described in subsection (a) if
the court determines the information required is unusually voluminous in
nature or otherwise caused an undue burden on the provider.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1866; amended Pub. L. 100-690, title VII, Sec. 7061, Nov. 18, 1988, 102
Stat. 4404.)
Amendments
1988--Subsec. (c). Pub. L. 100-690 inserted heading.
[CITE: 18USC2707]
Sec. 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
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) Disciplinary Actions for Violations.--If a court determines that
any agency or department of the United States has violated this chapter
and the court finds that the circumstances surrounding the violation
raise the question whether or not an officer or employee of the agency
or department acted willfully or intentionally with respect to the
violation, the agency or department concerned shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted
against the officer or employee.
(e) Defense.--A good faith reliance on--
(1) a court warrant or order, a grand jury subpoena, a
legislative authorization, or a statutory authorization;
(2) a request of an investigative or law enforcement officer
under section 2518(7) of this title; or
(3) a good faith determination that section 2511(3) of this
title permitted the conduct complained of;
is a complete defense to any civil or criminal action brought under this
chapter or any other law.
(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.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1866; amended Pub. L. 104-293, title VI, Sec. 601(c), Oct. 11, 1996, 110
Stat. 3469.)
Amendments
1996--Subsec. (a). Pub. L. 104-293, Sec. 601(c)(1), substituted
``other person'' for ``customer''.
Subsec. (c). Pub. L. 104-293, Sec. 601(c)(2), inserted at end ``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.''
Subsecs. (d) to (f). Pub. L. 104-293, Sec. 601(c)(3), (4), added
subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f),
respectively.
[CITE: 18USC2708]
Sec. 2708. Exclusivity of remedies
The remedies and sanctions described in this chapter are the only
judicial remedies and sanctions for nonconstitutional violations of this
chapter.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1867.)
[CITE: 18USC2709]
Sec. 2709. Counterintelligence access to telephone toll and
transactional records
(a) Duty to Provide.--A wire or electronic communication service
provider shall comply with a request for subscriber information and toll
billing records information, or electronic communication transactional
records in its custody or possession made by the Director of the Federal
Bureau of Investigation under subsection (b) of this section.
(b) Required Certification.--The Director of the Federal Bureau of
Investigation, or his designee in a position not lower than Deputy
Assistant 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 in a position not lower than Deputy
Assistant Director) certifies in writing to the wire or electronic
communication service provider to which the request is made that--
(A) the name, address, length of service, and toll billing
records sought are relevant to an authorized foreign
counterintelligence investigation; and
(B) there are specific and articulable facts giving reason
to believe that the person or entity to whom the information
sought pertains is a foreign power or an agent of a foreign
power as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801); and
(2) request the name, address, and length of service of a person
or entity if the Director (or his designee in a position not lower
than Deputy Assistant Director) certifies in writing to the wire or
electronic communication service provider to which the request is
made that--
(A) the information sought is relevant to an authorized
foreign counterintelligence investigation; and
(B) there are specific and articulable facts giving reason
to believe that communication facilities registered in the name
of the person or entity have been used, through the services of
such provider, in communication with--
(i) an individual who is engaging or has engaged in
international terrorism as defined in section 101(c) of the
Foreign Intelligence Surveillance Act \1\ or clandestine
intelligence activities that involve or may involve a
violation of the criminal statutes of the United States; or
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\1\ So in original. Probably should be ``Act of 1978''.
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(ii) a foreign power or an agent of a foreign power
under circumstances giving reason to believe that the
communication concerned international terrorism as defined
in section 101(c) of the Foreign Intelligence Surveillance
Act \1\ or clandestine intelligence activities that involve
or may involve a violation of the criminal statutes of the
United States.
(c) Prohibition of Certain Disclosure.--No wire or electronic
communication service provider, or officer, employee, or agent thereof,
shall disclose to any person that the Federal Bureau of Investigation
has sought or obtained access to information or records under this
section.
(d) Dissemination by Bureau.--The Federal Bureau of Investigation
may disseminate information and records obtained under this section only
as provided in guidelines approved by the Attorney General for foreign
intelligence collection and foreign counterintelligence investigations
conducted by the Federal Bureau of Investigation, and, with respect to
dissemination to an agency of the United States, only if such
information is clearly relevant to the authorized responsibilities of
such agency.
(e) Requirement That Certain Congressional Bodies Be Informed.--On a
semiannual basis the Director of the Federal Bureau of Investigation
shall fully inform the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on Intelligence of the
Senate, 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.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1867; amended Pub. L. 103-142, Nov. 17, 1993, 107 Stat. 1491; Pub. L.
104-293, title VI, Sec. 601(a), Oct. 11, 1996, 110 Stat. 3469.)
Amendments
1996--Subsec. (b)(1). Pub. L. 104-293 inserted ``local and long
distance'' before ``toll billing records''.
1993--Subsec. (b). Pub. L. 103-142, Sec. 1, amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as follows: ``Required
Certification.--The Director of the Federal Bureau of Investigation (or
an individual within the Federal Bureau of Investigation designated for
this purpose by the Director) may request any such information and
records if the Director (or the Director's designee) certifies in
writing to the wire or electronic communication service provider to
which the request is made that--
``(1) the information sought is relevant to an authorized
foreign counterintelligence investigation; and
``(2) there are specific and articulable facts giving reason to
believe that the person or entity to whom the information sought
pertains is a foreign power or an agent of a foreign power as
defined in section 101 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801).''
Subsec. (e). Pub. L. 103-142, Sec. 2, inserted ``, and the Committee
on the Judiciary of the House of Representatives and the Committee on
the Judiciary of the Senate,'' after ``Senate''.
[CITE: 18USC2710]
Sec. 2710. Wrongful disclosure of video tape rental or sale
records
(a) Definitions.--For purposes of this section--
(1) the term ``consumer'' means any renter, purchaser, or
subscriber of goods or services from a video tape service provider;
(2) the term ``ordinary course of business'' means only debt
collection activities, order fulfillment, request processing, and
the transfer of ownership;
(3) the term ``personally identifiable information'' includes
information which identifies a person as having requested or
obtained specific video materials or services from a video tape
service provider; and
(4) the term ``video tape service provider'' means any person,
engaged in the business, in or affecting interstate or foreign
commerce, of rental, sale, or delivery of prerecorded video cassette
tapes or similar audio visual materials, or any person or other
entity to whom a disclosure is made under subparagraph (D) or (E) of
subsection (b)(2), but only with respect to the information
contained in the disclosure.
(b) Video Tape Rental and Sale Records.--(1) A video tape service
provider who knowingly discloses, to any person, personally identifiable
information concerning any consumer of such provider shall be liable to
the aggrieved person for the relief provided in subsection (d).
(2) A video tape service provider may disclose personally
identifiable information concerning any consumer--
(A) to the consumer;
(B) to any person with the informed, written consent of the
consumer given at the time the disclosure is sought;
(C) to a law enforcement agency pursuant to a warrant issued
under the Federal Rules of Criminal Procedure, an equivalent State
warrant, a grand jury subpoena, or a court order;
(D) to any person if the disclosure is solely of the names and
addresses of consumers and if--
(i) the video tape service provider has provided the
consumer with the opportunity, in a clear and conspicuous
manner, to prohibit such disclosure; and
(ii) the disclosure does not identify the title,
description, or subject matter of any video tapes or other audio
visual material; however, the subject matter of such materials
may be disclosed if the disclosure is for the exclusive use of
marketing goods and services directly to the consumer;
(E) to any person if the disclosure is incident to the ordinary
course of business of the video tape service provider; or
(F) pursuant to a court order, in a civil proceeding upon a
showing of compelling need for the information that cannot be
accommodated by any other means, if--
(i) the consumer is given reasonable notice, by the person
seeking the disclosure, of the court proceeding relevant to the
issuance of the court order; and
(ii) the consumer is afforded the opportunity to appear and
contest the claim of the person seeking the disclosure.
If an order is granted pursuant to subparagraph (C) or (F), the court
shall impose appropriate safeguards against unauthorized disclosure.
(3) Court orders authorizing disclosure under subparagraph (C) shall
issue only with prior notice to the consumer and only if the law
enforcement agency shows that there is probable cause to believe that
the records or other information sought are relevant to a legitimate law
enforcement inquiry. In the case of a State government authority, such a
court order shall not issue if prohibited by the law of such State. A
court issuing an order pursuant to this section, on a motion made
promptly by the video tape service provider, may quash or modify such
order if the information or records requested are unreasonably
voluminous in nature or if compliance with such order otherwise would
cause an unreasonable burden on such provider.
(c) Civil Action.--(1) Any person aggrieved by any act of a person
in violation of this section may bring a civil action in a United States
district court.
(2) The court may award--
(A) actual damages but not less than liquidated damages in an
amount of $2,500;
(B) punitive damages;
(C) reasonable attorneys' fees and other litigation costs
reasonably incurred; and
(D) such other preliminary and equitable relief as the court
determines to be appropriate.
(3) No action may be brought under this subsection unless such
action is begun within 2 years from the date of the act complained of or
the date of discovery.
(4) No liability shall result from lawful disclosure permitted by
this section.
(d) Personally Identifiable Information.--Personally identifiable
information obtained in any manner other than as provided in this
section shall not be received in evidence in any trial, hearing,
arbitration, or other proceeding in or before any court, grand jury,
department, officer, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or a political
subdivision of a State.
(e) Destruction of Old Records.--A person subject to this section
shall destroy personally identifiable information as soon as
practicable, but no later than one year from the date the information is
no longer necessary for the purpose for which it was collected and there
are no pending requests or orders for access to such information under
subsection (b)(2) or (c)(2) or pursuant to a court order.
(f) Preemption.--The provisions of this section preempt only the
provisions of State or local law that require disclosure prohibited by
this section.
(Added Pub. L. 100-618, Sec. 2(a)(2), Nov. 5, 1988, 102 Stat. 3195.)
References in Text
The Federal Rules of Criminal Procedure, referred to in subsec.
(b)(2)(C), are set out in the Appendix to this title.
Prior Provisions
A prior section 2710 was renumbered section 2711 of this title.
[CITE: 18USC2711]
Sec. 2711. Definitions for chapter
As used in this chapter--
(1) the terms defined in section 2510 of this title have,
respectively, the definitions given such terms in that section; and
(2) the term ``remote computing service'' means the provision to
the public of computer storage or processing services by means of an
electronic communications system.
(Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat.
1868, Sec. 2710; renumbered Sec. 2711, Pub. L. 100-618, Sec. 2(a)(1),
Nov. 5, 1988, 102 Stat. 3195.)
Amendments
1988--Pub. L. 100-618 renumbered section 2710 of this title as this
section.