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Complete Home & Office Legal Guide
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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-09-14
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/* The Electronic Commuications Privacy Act continues. */
(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.
/* The following sections directly relate to BBS systems. */
(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 v