home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
Magnum One
/
Magnum One (Mid-American Digital) (Disc Manufacturing).iso
/
d10
/
guide61a.arc
/
LHARC3.EXE
/
ECPA1.STA
next >
Wrap
Text File
|
1991-04-22
|
43KB
|
759 lines
/* We have received many requests for information on the
Electronic Communication's Privacy Act. We are happy to
oblige and the full text of this law follows. */
CHAPTER 119 -- WIRE AND ELECTRONIC COMMUNICATIONS
INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
Sec.
2510. Definitions.
2511. Interception and disclosure of wire or oral communications
prohibited.
2512. Manufacture, distribution, possession, and advertising of wire or
oral communication intercepting devices prohibited.
2513. Confiscation of wire, oral, or electronic communication
intercepting devices.
2514. Immunity of witnesses.
2515. Prohibition of use as evidence of intercepted wire, oral, or
electronic communications.
2516. Authorization for interception of wire, oral, or electronic
communications.
2517. Authorization for disclosure and use of intercepted wire, oral, or
electronic communications.
2518. Procedure for interception of wire, oral, or electronic
communications.
2519. Reports concerning intercepted wire, oral or electronic
communications.
2520. Recovery of civil damages authorized.
2521. Injunction against illegal interception.
_ 2510. Definitions
As used in this chapter --
(1) "wire communication" means any aural transfer made in whole or in
part through the use of facilities for the transmission of
communications by the aid of wire, cable, or other like
connection between the point of origin and the point of reception
(including the use of such connection in a switching station)
furnished or operated by any person engaged in providing or
operating such facilities for the transmission of interstate or
foreign communications or communications affecting interstate or
foreign commerce and such term includes any electronic storage of
such communication, but such term does not include the radio
portion of a cordless telephone communication that is transmitted
between the cordless telephone handset and the base unit;
(2) "oral communication" means any oral communication uttered by a
person exhibiting an expectation that such communication is not
subject to interception under circumstances justifying such
expectation, but such term does not include any electronic
communication;
(3) "State" means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
(4) "intercept" means the aural or other acquisition of the contents
of any wire, electronic, or oral communication through the use of
any electronic, mechanical, or other device.
(5) "electronic mechanical, or other device" means any device or
apparatus which can be used to intercept a wire, oral, or
electronic communication other than --
(a) any telephone or telegraph instrument, equipment or
facility, or any component thereof, (i) furnished to the
subscriber or user by a provider of wire or electronic
communication service in the ordinary course of its business
and being used by the subscriber or user in the ordinary
course of its business or furnished by such subscriber or
user for connection to the facilities of such service and
used in the ordinary course of its business; or (ii) being
used by a communications common carrier in the ordinary
course of its business, or by an investigative or law
enforcement officer in the ordinary course of his duties;
(b) a hearing aid or similar device being used to correct
subnormal hearing to not better than normal;
(6) "person" means any employee, or agent of the United States or any
State or political subdivision thereof, and any individual,
partnership, association, joint stock company, trust, or
corporation;
(7) "Investigative or law enforcement officer" means any officer of
the United States or of a State or political subdivision thereof,
who is empowered by law to conduct investigations of or to make
arrests for offenses enumerated in this chapter, and any attorney
authorized by law to prosecute or participate in the prosecution
of such offenses;
(8) "contents", when used with respect to any wire, oral, or
electronic communication, includes any information concerning the
substance, purport, or meaning of that communication;
(9) "Judge of competent jurisdiction" means --
(a) a judge of a United States district court or a United States
court of appeals; and
(b) a judge of any court of general criminal jurisdiction of a
State who is authorized by a statute of that State to enter
orders authorizing interceptions of wire, oral, or
electronic communications;
(10) "communication common carrier" shall have the same meaning which
is given the term "common carrier" by section 153(h) of title 47
of the United States Code;
(11) "aggrieved person" means a person who was a party to any
intercepted wire, oral, or electronic communication or a person
against whom the interception was directed;
(12) "electronic communication" means any transfer of signs, signals,
writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that
affects interstate or foreign commerce, but does not include --
(A) the radio portion of a cordless telephone communication that
is transmitted between the cordless telephone handset and
the base unit;
(B) any wire or oral communication;
(C) any communication made through a tone-only paging device; or
(D) any communication from a tracking device (as defined in
section 3117 of this title);
/* The definition of "electronic communication would include the
use of a modem to call a bulletin board system. */
(13) "user" means any person or entity who --
(A) uses an electronic communication service; and
(B) is duly authorized by the provider of such service to engage
in such use;
(14) "electronic communications system" means any wire, radio,
electromagnetic, photooptical or photoelectronic facilities for
the transmission of electronic communications, and any computer
facilities or related electronic equipment for the electronic
storage of such communications;
(15) "electronic communication service" means any service which
provides to users thereof the ability to send or receive wire or
electronic communications;
(16) "readily accessible to the general public" means, with respect to
a radio communication, that such communication is not --
(A) scrambled or encrypted;
(B) transmitted using modulation techniques whose essential
parameters have been withheld from the public with the
intention of preserving the privacy of such communication;
(C) carried on a subcarrier or other signal subsidiary to a
radio transmission;
(D) transmitted over a communication system provided by a common
carrier, unless the communication is a tone only paging
system communication; or
(E) transmitted on frequencies allocated under part 25, subpart
D, E, or F of part 74, or part 94 of the Rules of the
Federal Communications Commission, unless, in the case of a
communication transmitted on a frequency allocated under
part 74 that is not exclusively allocated to broadcast
auxiliary services, the communication is a two-way voice
communication by radio;
(17) "electronic storage" means --
(A) any temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission
thereof; and
(B) any storage of such communication by an electronic
communication service for purposes of backup protection of
such communication; and
(18) "aural transfer" means a transfer containing the human voice at
any point between and including the point of origin and the point
of reception.
_ 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 have reason to know that the
information was obtained through the interception of a wire,
oral, or electronic communication in violation of this
subsection; or
(d) intentionally uses, or endeavors to use, the contents of any
wire, oral, or electronic communication, knowing or having
reason to know that the information was obtained through the
interception of a wire, oral, or electronic communication in
violation of this subsection;
shall be punished as provided in subsection (4) or shall be
subject to suit as provided in subsection (5).
(2) (a) (i) It shall not be unlawful under this chapter for an
operator of a switchboard, or an officer, employee, or
agent of a provider of wire or electronic communication
service, whose facilities are used in the transmission
of a wire communication, to intercept, disclose, or use
that communication in the normal course of his
employment while engaged in any activity which is a
necessary incident to the rendition of his service or
to the protection of the rights or property of the
provider of that service, except that a provider of
wire communication service to the public shall not
utilize service observing or random monitoring except
for mechanical or service quality control checks.
(ii) Notwithstanding any other law, providers of wire or
electronic communication service, their officers,
employees, and agents, landlords, custodians, or other
persons, are authorized to provide information
facilities, or technical assistance to persons
authorized by law to intercept wire, oral, or
electronic communications or to conduct electronic
surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, if such
provider, its officers, employees, or agents, landlord,
custodian, or other specified person, has been provided
with --
(A) a court order directing such assistance signed by
the authorizing judge, or
(B) a certification in writing by a person specified
in section 2518(7) of this title or the Attorney
General of the United States that no warrant or
court order is required by law, that all statutory
requirements have been met, and that the specified
assistance is required.
setting forth the period of time during which the
provision of the information, facilities, or technical
assistance is authorized and specifying the
information, facilities, or technical assistance
required. No provider of wire or electronic
communication service, officer, employee, or agent
thereof, or landlord, custodian, or other specified
person shall disclose the existence of any interception
or surveillance or the device used to accomplish the
interception or surveillance with respect to which the
person has been furnished a court order or
certification under this chapter, 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 an order or certification
under this subparagraph.
(b) It shall not be unlawful under this chapter for an officer,
employee, or agent of the Federal Communications Commission,
in the normal course of his employment and in discharge of
the monitoring responsibilities exercised by the Commission
in the enforcement of chapter 5 of title 47 of the United
States Code, to intercept a wire or electronic
communication, or oral communication transmitted by radio,
or to disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a person
acting under color of law to intercept a wire, oral, or
electronic communication, where such person is a party to
the communication or one of the parties to the communication
has given prior consent to such interception.
(d) It shall not be unlawful under this chapter for a person not
acting under color of law to intercept a wire, 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, it shall not
be unlawful for an officer, employee, or agent of the United
States in the normal course of his official duty to conduct
electronic surveillance, as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978, as authorized
by that Act.
(f) Nothing contained in this chapter or chapter 121, or section
705 of the Communications Act of 1934, shall be deemed to
affect the acquisition by the United States Government of
foreign intelligence information from international or
foreign communications, or foreign intelligence activities
conducted in accordance with otherwise applicable Federal
law involving a foreign electronic communications system,
utilizing a means other than electronic surveillance as
defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, and procedures in this chapter and
the Foreign Intelligence Surveillance Act of 1978 shall be
the exclusive means by which electronic surveillance, as
defined in section 101 of such Act, and the interception of
domestic wire and oral communications may be conducted.
(g) It shall not be unlawful under this chapter or chapter 121
of this title for any person --
(i) to intercept or access an electronic communication made
through an electronic communication system that is
configured so that such electronic communication is
readily accessible to the general public;
(ii) to intercept any radio communication which is
transmitted --
(I) by any station for the use of the general public,
or that relates to ships, aircraft, vehicles, or
persons in distress;
(II) by any governmental, law enforcement, civil
defense, private land mobile, or public safety
communications system, including police and fire,
readily accessible to the general public;
(III) by a station operating on an authorized frequency
within the bands allocated to the amateur,
citizens band, or general mobile radio services;
or
(IV) by any marine or aeronautical communications
system;
(iii) to engage in any conduct which --
(I) is prohibited by section 633 of the Communications
Act of 1934; or
(II) is excepted from the application of section 705(a)
of the Communications Act of 1934 by section
705(b) of that Act;
(iv) to intercept any wire or electronic communication the
transmission of which is causing harmful interference
to any lawfully operating station or consumer
electronic equipment, to the extent necessary to
identify the source of such interference; or
(v) for other users of the same frequency to intercept any
radio communication made through a system that utilizes
frequencies monitored by individuals engaged in the
provision or the use of such system, if such
communication is not scrambled or encrypted.
(h) It shall not be unlawful under this chapter --
(i) to use a pen register or a trap and trace device (as
those terms are defined for the purposes of chapter 206
(relating to pen registers and trap and trace devices)
of this title); or
(ii) for a provider of electronic communication service to
record the fact that a wire or electronic communication
was initiated or completed in order to protect such
provider, another provider furnishing service toward
the completion of the wire or electronic communication,
or a user of that service, from fraudulent, unlawful or
abusive use of such service.
(3) (a) Except as provided in paragraph (b) of this subsection, a
person or entity providing an electronic communication
service to the public shall not intentionally divulge the
contents of any communication (other than one to such person
or entity, or an agent thereof) while in transmission on
that service to any person or entity other than an addressee
or intended recipient of such communication or an agent of
such addressee or intended recipient.
(b) A person or entity providing electronic communication
service to the public may divulge the contents of any such
communication --
(i) as otherwise authorized in section 2511(2)(a) or 2517
of this title;
(ii) with the lawful consent of the originator or any
addressee or intended recipient of such communication;
(iii) to a person employed or authorized, or whose
facilities are used, to forward such communication to
its destination; or
(iv) which were inadvertently obtained by the service
provider and which appear to pertain to the commission
of a crime, if such divulgence is made to a law
enforcement agency.
(4) (a) Except as provided in paragraph (b) of this subsection or in
subsection (5), whoever violates subsection (1) of this
section shall be fined under this title or imprisoned not
more than five years, or both.
(b) If the offense is a first offense under paragraph (a) of
this subsection and is not for a tortious or illegal purpose
or for purposes of direct or indirect commercial advantage
or private commercial gain, and the wire or electronic
communication with respect to which the offense under
paragraph (a) is a radio communication that is not scrambled
or encrypted, then --
(i) If the communication is not the radio portion of a
cellular telephone communication, a public land mobile
radio service communication or a paging service
communication, and the conduct is not that described in
subsection (5), the offender shall be fined under this
title or imprisoned not more than one year, or both,
and
(ii) if the communication is the radio portion of a cellular
telephone communication, a public land mobile radio
service communication or a paging service
communication, the offender shall be fined not more
than $500.
(c) Conduct otherwise an offense under this subsection that
consists of or relates to the interception of a satellite
transmission that is not encrypted or scrambled and that is
transmitted --
(i) to a broadcasting station for purposes of
retransmission to the general public; or
(ii) as an audio subcarrier intended for redistribution to
facilities open to the public, but not including data
transmissions or telephone calls,
is not an offense under this subsection unless the conduct
is for the purposes of direct or indirect commercial
advantage or private financial gain.
(5) (a) (i) If the communication is --
(A) a private satellite video communication that is
not scrambled or encrypted and the conduct in
violation of this chapter is the private viewing
of that communication and is not for a tortious or
illegal purpose or for purposes of direct or
indirect commercial advantage or private
commercial gain; or
(B) a radio communication that is transmitted on
frequencies allocated under subpart D of part 74
of the rules of the Federal Communications
Commission that is not scrambled or encrypted and
the conduct in violation of this chapter is not
for a tortious or illegal purpose or for purposes
of direct or indirect commercial advantage or
private commercial gain.
then the person who engages in such conduct shall be
subject to suit by the Federal Government in a court of
competent jurisdiction.
(ii) In an action under this subsection --
(A) if the violation of this chapter is a first
offense for the person under paragraph (a) of
subsection (4) and such person has not been found
liable in a civil action under section 2520 of
this title, the Federal Government shall be
entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or
subsequent offense under paragraph (a) of
subsection (4) or such person has been found
liable in any prior civil action under section
2520, the person shall be subject to a mandatory
$500 civil fine.
(b) The court may use any means within its authority to enforce
an injunction issued under paragraph (ii)(A), and shall
impose a civil fine of not less than $500 for each violation
of such an injunction.
_ 2512. Manufacture, distribution, possession, and advertising of wire,
oral, or electronic communication intercepting devices prohibited
(1) Except as otherwise specifically provided in this chapter, any
person who intentionally --
(a) sends through the mail, or sends or carries in interstate or
foreign commerce, any electronic, mechanical, or other
device, knowing or having reason to know that the design of
such device renders it primarily useful for the purpose of
the surreptitious interception of wire, oral, or electronic
communications;
(b) manufactures, assembles, possesses, or sells any electronic,
mechanical, or other device, knowing or having reason to
know that the design of such device renders it primarily
useful for the purpose of the surreptitious interception of
wire, oral, or electronic communications, and that such
device or any component thereof has been or will be sent
through the mail or transported in interstate or foreign
commerce; or
(c) places in any newspaper, magazine, handbill, or other
publication any advertisement of --
(i) any electronic, mechanical, or other device knowing or
having reason to know that the design of such device
renders it primarily useful for the purpose of the
surreptitious interception of wire, oral, or electronic
communications; or
(ii) any other electronic, mechanical, or other device,
where such advertisement promotes the use of such
device for the purpose of the surreptitious
interception of wire, oral, or electronic
communications,
knowing or having reason to know that such advertisement
will be sent through the mail or transported in interstate
or foreign commerce,
shall be fined not more than $10,000 or imprisoned not more than
five years, or both.
(2) It shall not be unlawful under this section for --
(a) a provider of wire or electronic communication service or
an officer, agent, or employee of, or a person under
contract with, such a provider, in the normal course of the
business of providing that wire or electronic communications
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.
_ 2513. Confiscation of wire, oral, or electronic communication
intercepting devices
Any electronic, mechanical, or other device used, sent, carried,
manufactured, assembled, possessed, sold, or advertised in violation of
section 2511 or section 2512 of this chapter may be seized and forfeited to
the United States. All provisions of law relating to (1) the seizure,
summary and judicial forfeiture, and condemnation of vessels, vehicles,
merchandise, and baggage for violations of the customs laws contained in
title 19 of the United States Code, (2) the disposition of such vessels,
vehicles, merchandise, and baggage or the proceeds from the sale thereof,
(3) the remission or mitigation of such forfeiture, (4) the compromise of
claims, and (5) the award of compensation to informers in respect of such
forfeitures, shall apply to seizures and forfeitures incurred, or alleged
to have been incurred, under the provisions of this section, insofar as
applicable and not inconsistent with the provisions of this section; except
that such duties as are imposed upon the collector of customs or any other
person with respect to the seizure and forfeiture of vessels, vehicles,
merchandise, and baggage under the provisions of the customs laws contained
in title 19 of the United States Code shall be performed with respect to
seizure and forfeiture of electronic, mechanical, or other intercepting
devices under this section by such officers, agents, or other persons as
may be authorized or designated for that purpose by the Attorney General.
_ 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.
_ 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General, Associate Attorney
General, any Assistant Attorney General, any acting Assistant
Attorney General, or any Deputy Assistant Attorney General in the
Criminal Division specially designated by the Attorney General,
may authorize an application to a Federal judge of competent
jurisdiction for, and such judge may grant in conformity with
section 2518 of this chapter an order authorizing or approving
the interception of wire of oral communications by the Federal
Bureau of Investigation, or a Federal agency having
responsibility for the investigation of the offense as to which
the application is made, when such interception may provide or
has provided evidence of --
(a) any offense punishable by death or by imprisonment for more
than one year under sections 2274 through 2277 of title 42
of the United States Code (relating to the enforcement of
the Atomic Energy Act of 1954), section 2284 of title 42 of
the United States Code (relating to sabotage of nuclear
facilities or fuel), or under the following chapters of this
title: chapter 37 (relating to espionage), chapter 105
(relating to sabotage), chapter 115 (relating to treason),
chapter 102 (relating to riots), chapter 65 (relating to
malicious mischief), chapter 111 (relating to destruction of
vessels), or chapter 81 (relating to piracy);
(b) a violation of section 186 or section 501(c) of title 29,
United States Code (dealing with restrictions on payments
and loans to labor organizations), or any offense which
involves murders, kidnapping, robbery, or extortion, and
which is punishable under this title;
(c) any offense which is punishable under the following sections
of this title: section 201 (bribery of public officials and
witnesses), section 224 (bribery in sporting contests),
subsection (d), (e), (f), (g), (h), or (i) of section 844
(unlawful use of explosives), section 1084 (transmission of
wagering information), section 751 (relating to escape),
sections 1503, 1512, and 1513 (influencing or injuring an
officer, juror, or witness generally), section 1510
(obstruction of criminal investigations), section 1511
(obstruction of State or local law enforcement), section
1751 (Presidential and Presidential staff assassination,
kidnapping, and assault), section 1951 (interference with
commerce by threats or violence), section 1952 (interstate
and foreign travel or transportation in aid of racketeering
enterprises), section 1952A (relating to use of interstate
commerce facilities in the commission of murder for hire),
section 1952B (relating to violent crimes in aid of
racketeering activity), section 1954 (offer, acceptance, or
solicitation to influence operations of employee benefit
plan), section 1955 (prohibition of business enterprises of
gambling), section 1956 (laundering of monetary
instruments), section 1957 (relating to engaging in monetary
transactions in property derived from specified unlawful
activity), section 659 (theft from interstate shipment),
section 664 (embezzlement from pension and welfare funds),
section 1343 (fraud by wire, radio, or television), section
2252 or 2253 (sexual exploitation of children), sections
2251 and 2252 (sexual exploitation of children), sections
2312, 2313, 2314, and 2315 (interstate transportation of
stolen property), the second section 2320 (relating to
trafficking in certain motor vehicles or motor vehicle
parts, section 1203 (relating to hostage taking), section
1029 (relating to fraud and related activity in connection
with access devices), section 3146 (relating to penalty for
failure to appear), section 3521(b)(3) (relating to witness
relocation and assistance), section 32 (relating to
destruction of aircraft or aircraft facilities), section
1963 (violations with respect to racketeer influenced and
corrupt organizations), section 115 (relating to threatening
or retaliating against a Federal official), the section in
chapter 65 relating to destruction of an energy facility,
and section 1341 (relating to mail fraud), section 351
(violations with respect to congressional, Cabinet, or
Supreme Court assassinations, kidnapping, and assault),
section 831 (relating to prohibited transactions involving
nuclear materials), section 33 (relating to destruction of
motor vehicles or motor vehicle facilities), or section 1992
(relating to wrecking trains);
(d) any offense involving counterfeiting punishable under
section 471, 472, or 473 of this title;
(e) any offense involving fraud connected with a case under
title 11 or the manufacture, importation, receiving,
concealment, buying, selling, or otherwise dealing in
narcotic drugs, marihuana, or other dangerous drugs,
punishable under any law of the United States;
(f) any offense including extortionate credit transactions under
sections 892, 893, or 894 of this title;
(g) a violation of section 5322 of title 31, United States Code
(dealing with the reporting of currency transactions);
(h) any felony violation of sections 2511 and 2512 (relating to
interception and disclosure of certain communications and to
certain intercepting devices) of this title;