(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.

_ 2703. Requirements for governmental access

(a) CONTENTS OF ELECTRONIC COMMUNICATIONS IN ELECTRONIC STORAGE.-- A

governmental entity may require the disclosure by a provider of

electronic communication service of the contents of an electronic

communication, that is in electronic storage in an electronic

communications system for one hundred and eighty days or less,

only pursuant to a warrant issued under the Federal Rules of

Criminal Procedure or equivalent State warrant. A governmental

entity may require the disclosure by a provider of electronic

communications services of the contents of an electronic

communication that has been in electronic storage in an

electronic communications system for more than one hundred and

eighty days by the means available under subsection (b) of this

section.

(b) CONTENTS OF ELECTRONIC COMMUNICATIONS IN A REMOTE COMPUTING

SERVICE.--

(1) A governmental entity may require a provider of remote

computing service to disclose the contents of any electronic

communication to which this paragraph is made applicable by

paragraph (2) of this subsection--

(A) without required notice to the subscriber or customer,

if the governmental entity obtains a warrant issued

under the Federal Rules of Criminal Procedure or

equivalent State warrant; or

(B) with prior notice from the governmental entity to the

subscriber or customer if the governmental entity--

(i) uses an administrative subpoena authorized by a

Federal or State statute or a Federal or State

grand jury subpoena; or

(ii) obtains a court order for such disclosure under

subsection (d) of this section;

except that delayed notice may be given pursuant to

section 2705 of this title.

(2) Paragraph (1) is applicable with respect to any electronic

communication that is held or maintained on that service--

(A) on behalf of, and received by means of electronic

transmission from (or created by means of computer

processing of communications received by means of

electronic transmission from), a subscriber or customer

of such remote computing service; and

(B) solely for the purpose of providing storage or computer

processing services to such subscriber or customer, if

the provider is not authorized to access the contents

of any such communications for purposes of providing

any services other than storage or computer processing.

(c) RECORDS CONCERNING ELECTRONIC COMMUNICATION SERVICE OR REMOTE

COMPUTING SERVICE.--

(1) (A) Except as provided in subparagraph (B), a provider of

electronic communication service or remote computing

service may disclose a record or other information

pertaining to a subscriber to or customer of such

service (not including the contents of communications

covered by subsection (a) or (b) of this section) to

any person other than a governmental entity.

(B) A provider of electronic communication service or

remote computing service shall disclose a record or

other information pertaining to a subscriber to or

customer of such service (not including the contents of

communications covered by subsection (a) or (b) of this

section) to a governmental entity only when the

governmental entity--

(i) uses an administrative subpoena authorized by a

Federal or State statute, or a Federal or State

grand jury subpoena;

(ii) obtains a warrant issued under the Federal Rules

of Criminal Procedure or equivalent State warrant;

(iii) obtains a court order for such disclosure under

subsection (d) of this section; or

(iv) has the consent of the subscriber or customer to

such disclosure.

(2) A governmental entity receiving records or information under

this subsection is not required to provide notice to a

subscriber or customer.

(d) REQUIREMENTS FOR COURT ORDER.-- A court order for disclosure

under subsection (b) or (c) of this section shall issue only if

the governmental entity shows that there is reason to believe the

contents of a wire or electronic communication, or the records or

other information sought, are relevant to a legitimate law

enforcement inquiry. In the case of a State governmental

authority, such a court order shall not issue if prohibited by

the law of such State. A court issuing an order pursuant to this

section, on a motion made promptly by the service provider, may

quash or modify such order, if the information or records

requested are unusually voluminous in nature or compliance with

such order otherwise would cause an undue burden on such

provider.

(e) NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING INFORMATION

UNDER THIS CHAPTER.-- No cause of action shall lie in any court

against any provider of wire or electronic communication service,

its officers, employees, agents, or other specified persons for

providing information, facilities, or assistance in accordance

with the terms of a court order, warrant, subpoena, or

certification under this chapter.

_ 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 Unites 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) an (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.

_ 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 results 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.

_ 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) 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.

_ 2707. Civil action

(a) CAUSE OF ACTION.-- Except as provided in section 2703(e), any

provider of electronic communication service, subscriber, or

customer aggrieved by any violation of this chapter in which the

conduct constituting the violation is engaged in with a knowing

or intentional state of mind may, in a civil action, recover from

the person or entity which engaged in that violation such relief

as may be appropriate.

(b) RELIEF.-- In a civil action under this section, appropriate

relief includes--

(1) such preliminary and other equitable or declaratory relief

as may be appropriate;

(2) damages under subsection (c); and

(3) a reasonable attorney's fee and other litigation costs

reasonably incurred.

(c) DAMAGES.-- The court may assess as damages in a civil action

under this section the sum of the actual damages suffered by the

plaintiff and any profits made by the violator as a result of the

violation, but in no case shall a person entitled to recover

receive less than the sum of $1,000.

(d) DEFENSE.-- A good faith reliance on--

(1) a court warrant or order, a grand jury subpoena, a

legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer

under section 2518(7) of this title; or

(3) a good faith determination that section 2511(3) of this

title permitted the conduct complained of;

is a complete defense to any civil or criminal action brought

under this chapter or any other law.

(e) LIMITATION -- A civil action under this section may not be

commenced later than two years after the date upon which the

claimant first discovered or had a reasonable opportunity to

discover the violation.

_ 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.

_ 2709. Counterintelligence access to telephone toll and transactional

records

(a) DUTY TO PROVIDE.-- A wire or electronic communication service

provider shall comply with a request for subscriber information

and toll billing records information, or electronic communication

transactional records in its custody or possession made by the

Director of the Federal Bureau of Investigation under subsection

(b) of this section.

(b) REQUIRED CERTIFICATION.-- The Director of the Federal Bureau of

Investigation (or an individual within the Federal Bureau of

Investigation designated for this purpose by the Director) may

request any such information and records if the Director (or the

Director's designee) certifies in writing to the wire or

electronic communication service provider to which the request is

made that--

(1) the information sought is relevant to an authorized foreign

counterintelligence investigation; and

(2) there are specific and articulable facts giving reason to

believe that the person or entity to whom the information

sought pertains is a foreign power or an agent of a foreign

power as defined in section 101 of the Foreign Intelligence

Surveillance Act of 1978 (50 U.S.C. 1801).

(c) PROHIBITION OF CERTAIN DISCLOSURE.-- No wire or electronic

communication service provider, or officer, employee, or agent

thereof, shall disclose to any person that the Federal Bureau of

Investigation has sought or obtained access to information or

records under this section.

(d) DISSEMINATION BY BUREAU.-- The Federal Bureau of Investigation

may disseminate information and records obtained under this

section only as provided in guidelines approved by the Attorney

General for foreign intelligence collection and foreign

counterintelligence investigations conducted by the Federal

Bureau of Investigation, and, with respect to dissemination to an

agency of the United States, only if such information is clearly

relevant to the authorized responsibilities of such agency.

(e) REQUIREMENT THAT CERTAIN CONGRESSIONAL BODIES BE INFORMED.-- On a

semiannual basis the Director of the Federal Bureau of

Investigation shall fully inform the Permanent Select Committee

on Intelligence of the House of Representatives and the Select

Committee on Intelligence of the Senate concerning all requests

made under subsection (b) of this section.

_ 2710. 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.

CHAPTER 205-SEARCHES AND SEIZURES

Sec. 3101. Effect of rules of court--Rules

3117. Mobile tracking devices.

_ 3117. Mobile tracking devices

(a). IN GENERAL.--If a court is empowered to issue a warrant or other

order for the installation of a mobile tracking device, such

order may authorize the use of that device within the

jurisdiction of the court, and outside that jurisdiction if the

device is installed in that jurisdiction.

(b). DEFINITION.--As used in this section, the term "tracking device"

means an electronic or mechanical device which permits the

tracking of the movement of a person or object.

CHAPTER 206-PEN REGISTERS AND TRAP TRACE DEVICES

Sec.

3121. General prohibition on pen register on trap and trace device use;

exception.

3122. Application for an order for a pen register or a trap and trace

device.

3123. Issuance of an order for a pen register or a trap or trace

device.

3124. Assistance in installation and use of a pen register or a trap

and trace device.

3125. Reports concerning pen registers and trap and trace devices.

3126. Definitions for chapter.

_ 3121. General prohibition on pen register and trap and trace device

use; exception

(a) In General.-Except as provided in this section, no person may

install or use a pen register or a trap and trace device without

first obtaining a court order under section 3123 of this title or

under the Foreign Intelligence Surveillance Act of 1978 (50

U.S.C. 1801 et seq.).

(b) Exception.-The prohibition of subsection (a) does not apply with

respect to the use of a pen register or a trap and trace device

by a provider of electronic or wire communication service-

(1) relating to the operation, maintenance, and testing of a

wire or electronic communication service or to the

protection of the rights or property of such provider, or to

the protection of users of that service from abuse of

service or unlawful use of service; or

(2) to record the fact that a wire or electronic communication

was initiated or completed in order to protect such

provider, another provider furnishing service toward the

completion of the wire communication, or a user of that

service, from fraudulent, unlawful or abusive use of

service; or with the consent of the user of that service.

(c) Penalty.-Whoever knowingly violates subsection (a) shall be fined

under this title or imprisoned not more than one year, or both.

_ 3122. Application for an order for a pen register or a trap and trace

device

(a) Application.-

(1) An attorney for the Government may make application for an

order or an extension of an order under section 3123 of this

title authorizing or approving the installation and use of a

pen register or a trap and trace device under this chapter,

in writing under oath or equivalent affirmation, to a court

of competent jurisdiction.

(2) Unless prohibited by State law, a State investigative law

enforcement officer may make application for an order or an

extension of an order under section 3123 of this title

authorizing or approving the installation and use of a pen

register or a trap and trace device under this chapter, in

writing under oath or equivalent affirmation, to a court of

competent jurisdiction of such State.

(b) Contents Of Application. - An application under subsection (a) of

this section shall include-

(1) the identity of the attorney for the Government or the State

law enforcement or investigative officer making the

application and the identity of the law enforcement agency

conducting the investigation; and

(2) a certification by the applicant that the information likely

to be obtained is relevant to an ongoing criminal

investigation being conducted by that agency.

_ 3123. Issuance of an order for a pen register or a trap and trace device

(a) In General.-Upon an application made under section 3122 of this

title, the court shall enter an ex parte order authorizing the

installation and use of a pen register or a trap and trace device

within the jurisdiction of the court if the court finds that the

attorney for the Government or the State law enforcement or

investigative officer has certified to the court that the

information likely to be obtained by such installation and use is

relevant to an ongoing criminal investigation.

(b) Contents Of Order.-An order issued under this section-

(1) shall specify-

(A) the identity, if known, of the person to whom is leased

or in whose name is listed the telephone line to which

the pen register or trap and trace device is to be

attached;

(B) the identity, if known, of the person who is the

subject of the criminal investigation;

(C) the number and, if known, physical location of the

telephone line to which the pen register or trap and

trace device is to be attached and, in the case of a

trap and trace device, the geographic limits of the

trap and trace order; and

(D) a statement of the offense to which the information

likely to be obtained by the pen register or trap and

trace device relates; and

(2) shall direct, upon the request of the applicant, the

furnishing of information, facilities, and technical

assistance necessary to accomplish the installation of the

pen register or trap and trace device under section 3124 of

this title.

(c) Time Period And Extensions.-

(1) An order issued under this section shall authorize the

installation and use of a pen register or a trap and trace

device for a period not to exceed sixty days.

(2) Extensions of such an order may be granted, but only upon an

application for an order under section 3122 of this title

and upon the judicial finding required by subsection (a) of

this section. The period of extension shall be for a period

not to exceed sixty days.

(d) Nondisclosure Of Existence Of Pen Register Or A Trap And Trace

Device.-An order authorizing or approving the installation and

use of a pen register or a trap and trace device shall direct

that-

(1) the order be sealed until otherwise ordered by the court;

and

(2) the person owning or leasing the line to which the pen

register or a trap and trace device is attached, or who has

been ordered by the court to provide assistance to the

applicant, not disclose the existence of the pen register or

trap and trace device or the existence of the investigation

to the listed subscriber, or to any other person, unless or

until otherwise ordered by the court.

_ 3124. Assistance in installation and use of a pen register or a trap

and trace device

(a) Pen Registers.-Upon the request of an attorney for the Government

or an officer of a law enforcement agency authorized to install

and use a pen register under this chapter, a provider of wire or

electronic communication service, landlord, custodian, or other

person shall furnish such investigative or law enforcement

officer forthwith all information, facilities, and technical

assistance necessary to accomplish the installation of the pen

register unobtrusively and with a minimum of interference with

the services that the person so ordered by the court accords the

party with respect to whom the installation and use is to take

place, if such assistance is directed by a court order as

provided in section 3123(b)(2) of this title.

(b) Trap And Trace Device.-Upon the request of an attorney for the

Government or an officer of a law enforcement agency authorized

to receive the results of a trap and trace device under this

chapter, a provider of a wire or electronic communication

service, landlord, custodian, or other person shall install such

device forthwith on the appropriate line and shall furnish such

investigative or law enforcement officer all additional

information, facilities and technical assistance including

installation and operation of the device unobtrusively and with a

minimum of interference with the services that the person so

ordered by the court accords the party with respect to whom the

installation and use is to take place, if such installation and

assistance is directed by a court order as provided in section

3123(b)(2) of this title. Unless otherwise ordered by the court,

the results of the trap and trace device shall be furnished to

the officer of a law enforcement agency, designated in the court,

at reasonable intervals during regular business hours for the

duration of the order.

(c) Compensation.-A provider of a wire or electronic communication

service, landlord, custodian, or other person who furnishes

facilities or technical assistance pursuant to this section shall

be reasonably compensated for such reasonable expenses incurred

in providing such facilities and assistance.

(d) No Cause Of Action Against A Provider Disclosing Information

Under This Chapter.-No cause of action shall lie in any court

against any provider of a wire or electronic communication

service, its officers, employees, agents, or other specified

persons for providing information, facilities, or assistance in

accordance with the terms of a court order under this chapter.

(e) Defense.-A good faith reliance on a court order, a legislative

authorization, or a statutory authorization is a complete defense

against any civil or criminal action brought under this chapter

or any other law.

_ 3125. Reports concerning pen registers and trap and trace devices

The Attorney General shall annually report to Congress on the number

of pen register orders and orders for trap and trace devices applied for by

law enforcement agencies of the Department of Justice.

_ 3126. Definitions for chapter

As used in this chapter-

(1) the terms "wire communication", "electronic communication", and

"electronic communication service" have the meanings set forth

for such terms in section 2510 of this title;

(2) the term "court of competent jurisdiction" means-

(A) a district court of the United States (including a

magistrate of such a court) or a United States Court of

Appeals; or

(B) a court of general criminal jurisdiction of a State

authorized by the law of that State to enter orders

authorizing the use of a pen register or a trap and trace

device;

(3) the term "pen register" means a device which records or decodes

electronic or other impulses which identify the numbers dialed or

otherwise transmitted on the telephone line to which such device

is attached, but such term does not include any device used by a

provider or customer of a wire or electronic communication

service for billing, or recording as an incident to billing, for

communications services provided by such provider or any device

used by a provider or customer of a wire communication service

for cost accounting or other like purposes in the ordinary course

of its business;

(4) the term "trap and trace" device means a device which captures

the incoming electronic or other impulses which identify the

originating number of an instrument or device from which a wire

or electronic communication was transmitted;

(5) the term "attorney for the Government" has the meaning given such

term for the purposes of the Federal Rules of Criminal Procedure;

and

(6) the term "State" means a State, the District of Columbia, Puerto

Rico, and any other possession or territory of the United States.