Night Owl 9/Night Owl CD-ROM (NOPV9) (Night Owl Publisher) (1993).ISO/006a/bbslaw10.zip/ECPA2.STA

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(i) any violation of section 1679a(c)(2) (relating to destruction
of a natural gas pipeline) or subsection (i) or (n) of section
1472 (relating to aircraft piracy) of title 49, of the United
States Code;

(j) any criminal violation of section 2778 of title 22 (relating
to the Arms Export Control Act); or

(k) the location of any fugitive from justice from an offense
described in this section;

(l) any conspiracy to commit any of the foregoing offenses.

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

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


2517.  Authorization for disclosure and use of intercepted wire,
oral, or electronic communications

(1) Any investigative or law enforcement officer who, by any
means authorized by this chapter, has obtained knowledge of the
contents of any wire, oral, or electronic communication, or
evidence derived therefrom, may disclose such contents to another
investigative or law enforcement officer to the extent that such
disclosure is appropriate to the proper performance of the
official duties of the officer making or receiving the
disclosure.

(2) Any investigative or law enforcement officer who, by any
means authorized by this chapter, has obtained knowledge of the
contents of any wire, oral, or electronic communication or
evidence derived therefrom any use such contents to the extent
such use is appropriate to the proper performance of his official
duties.


(3) Any person who has received, by any means authorized by this
chapter, any information concerning a wire, oral, or electronic
communication, or evidence derived therefrom intercepted in
accordance with the provisions of this chapter may disclose the
contents of that communication or such derivative evidence while
giving testimony under oath or affirmation in any proceeding held
under the authority of the United States or of any State or
political subdivision thereof.

(4) No otherwise privileged wire, oral, or electronic
communication intercepted in accordance with, or in violation of,
the provisions of this chapter shall lose its privileged
character.

(5) When an investigative or law enforcement officer, while
engaged in intercepting wire, oral, or electronic communications
in the manner authorized herein, intercepts wire, oral, or
electronic communications relating to offenses other than those
specified in the order of authorization or approval, the contents
thereof, and evidence derived therefrom, may be disclosed or used
as provided in subsections (1) and (2) of this section.  Such
contents and any evidence derived therefrom may be used under
subsection (3) of this section when authorized or approved by a
judge of competent jurisdiction where such judge finds on
subsequent application that the contents were otherwise
intercepted in accordance with the provisions of this chapter.
Such application shall be made as soon as practicable.


2518.  Procedure for interception of wire, oral, or electronic
communications

(1) Each application for an order authorizing or approving the
interception of a wire, oral, or electronic communication under
this chapter shall be made in writing upon oath or affirmation to
a judge of competent jurisdiction and shall state the applicant's
authority to make such application.  Each application shall
include the following information:

(a) the identity of the investigative or law enforcement officer
making the application, and the officer authorizing the
application;

(b) a full and complete statement of the facts and circumstances
relied upon by the applicant, to justify his belief that an order
should be issued, including (i) details as to the particular
offense that has been, is being, or is about to be committed,
(ii) except as provided in subsection (11), a particular
description of the nature and location of the facilities from
which or the place where the communication is to be intercepted,
(iii) a particular description of the type of communications
sought to be intercepted, (iv) the identity of the person, if
known, committing the offense and whose communications are to be
intercepted;

(c) a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous;

(d) a statement of the period of time for which the interception
is required to be maintained.  If the nature of the investigation
is such that the authorization for interception should not
automatically terminate when the described type of communication
has been first obtained, a particular description of facts
establishing probable cause to believe that additional
communications of the same type will occur thereafter;

(e) a full and complete statement of the facts concerning all
previous applications known to the individual authorizing and
making the application, made to any judge for authorization to
intercept, or for approval of interceptions of, wire, oral, or
electronic communications involving any of the same persons,
facilities or places specified in the application, and the action
taken by the judge on each such application; and

(f) where the application is for the extension of an order, a
statement setting forth the results thus far obtained from the
interception, or a reasonable explanation of the failure to
obtain such results.

(2) The judge may require the applicant to furnish additional
testimony or documentary evidence in support of the application.

(3) Upon such application the judge may enter an ex parte order,
as requested or as modified, authorizing or approving
interception of wire, oral, or electronic communications within
the territorial jurisdiction of the court in which the judge is
sitting (and outside that jurisdiction but within the United
States in the case of a mobile interception device authorized by
a Federal court within such jurisdiction), if the judge
determines on the basis of the facts submitted by the applicant
that --

(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
offense enumerated in section 2516 of this t chapter;

(b) there is probable cause for brief that particular
communications concerning that offense will be obtained through
such interception;

(c) normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
to be too dangerous;

(d) except as provided in subsection (11), there is probable
cause for belief that the facilities from which, or the place
where the wire, oral, or electronic communications are to be
intercepted are being used, or are about to be used, in
connection with the commission of such offense, or are leased to,
listed in the name of, or commonly used by such person.

(4) Each order authorizing or approving the interception of any
wire, oral, or electronic communication under this chapter shall
specify --

(a) the identity of the person, if known, whose communications
are to be intercepted;

(b) the nature and location of the communications facilities as
to which, or the place where, authority to intercept is granted;

(c) a particular description of the type of communication sought
to be intercepted, and a statement of the particular offense to
which it relates;


(d) the identity of the agency authorized to intercept the
communications, and of the person authorizing the application;
and

(e) the period of time during which such interception is
authorized, including a statement as to whether or not the
interception shall automatically terminate when the described
communication has been first obtained.

An order authorizing the interception of a wire, oral, or
electronic communication under this chapter shall, upon request
of the applicant, direct that a provider of wire or electronic
communication service, landlord, custodian or other person shall
furnish the applicant forthwith all information, facilities, and
technical assistance necessary to accomplish the interception
unobtrusively and with a minimum of interference with the
services that such service provider, landlord, custodian, or
person is according the person whose communications are to be
intercepted.  Any provider of wire or electronic communication
service, landlord, custodian or other person furnishing such
facilities or technical assistance shall be compensated therefor
by the applicant for reasonable expenses incurred in providing
such facilities or assistance.

/* If for any horrible reason a BBS is ever commanded to allow an
electronic tapping of a user to take place, the agency who wishes
to tap must pay the expenses of the tap. */

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

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

(7) Notwithstanding any other provision of this chapter, any
investigative or law enforcement officer, specially designated by
the Attorney General, the Deputy Attorney General, the Associate
Attorney General or by the principal prosecuting attorney of any
State or subdivision thereof acting pursuant to a statute of that
State, who reasonably determines that --


(a) an emergency situation exists that involves --

(i) immediate danger of death or serious physical injury to any
person;

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

(iii) conspiratorial activities characteristic of organized crime,
that requires a wire, oral, or electronic communication to be
intercepted before an order authorizing such interception can,
with due diligence, be obtained, and

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

(8) (a) The contents of any wire, oral, or electronic
communication intercepted by any means authorized by this chapter
shall, if possible, be recorded on tape or wire or other
comparable device.  The recording of the contents of any wire,
oral, or electronic communication under this subsection shall be
done in such way as will protect the recording from editing or
other alterations.  Immediately upon the expiration of the period
of the order, or extensions thereof, such recordings shall be
made available to the judge issuing such order and sealed under
his directions.  Custody of the recordings shall be wherever the
judge orders.  They shall not be destroyed except upon an order
of the issuing or denying judge and in any event shall be kept
for ten years.  Duplicate recordings may be made for use or
disclosure pursuant to the provisions of subsections (1) and (2)
of section 2517 of this chapter for investigations.  The presence
of the seal provided for by this subsection, or a satisfactory
explanation for the absence thereof, shall be a prerequisite for
the use or disclosure of the contents of any wire, oral, or
electronic communication or evidence derived therefrom under
subsection (3) of section 2517.

(b) Applications made and orders granted under this chapter shall
be sealed by the judge.  Custody of the applications and orders
shall be wherever the judge directs.  Such applications and
orders shall be disclosed only upon a showing of good cause
before a judge of competent jurisdiction and shall not be
destroyed except on order of the issuing or denying judge, and in
any event shall be kept for ten years.

(c) Any violation of the provisions of this subsection may be
punished as contempt of the issuing or denying judge.

(d) Within a reasonable time but not later than ninety days after
the filing of an application for an order of approval under
section 2518(7)(b) which is denied or the termination of the
period of an order or extensions thereof, the issuing or denying
judge shall cause to be served, on the persons named in the order
or the application, and such other parties to intercepted
communications as the judge may determine in his discretion that
is in the interest of justice, and inventory which shall include
notice of --

(1) the fact of the entry of the order or the application;

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

(3) the fact that during the period wire, oral, or electronic
communications were or were not intercepted. The judge, upon the
filing of a motion, may in his discretion make available to such
person or his counsel for inspection such portions of the
intercepted communications, applications and orders as the judge
determines to be in the interest of justice.  On an ex parte
showing of good cause to a judge of competent jurisdiction the
serving of the inventory required by this subsection may be
postponed.

(9) The contents of any wire, oral, or electronic communication
intercepted pursuant to this chapter or evidence derived
therefrom shall not be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in a Federal
or State court unless each party, not less then ten days before
the trial, hearing, or proceeding, has been furnished with a copy
of the court order, and accompanying application, under which the
interception was authorized or approved.  This ten-day period may
be waived by the judge if he finds that it was not possible to
furnish the party with the above information ten days before the
trial, hearing, or proceeding and that the party will not be
prejudiced by the delay in receiving such information.

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

(i) the communication was unlawfully intercepted;

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

(iii) the interception was not made in conformity with the order
of authorization or approval. Such motion shall be made before
the trial, hearing, or proceeding unless there was no opportunity
to make such motion or the person was not aware of the grounds of
the motion.  If the motion is granted, the contents of the
intercepted wire, oral, or electronic communication, or evidence
derived therefrom, shall be treated as having been obtained in
violation of this chapter.  The judge, upon the filing of such
motion by the aggrieved person, may in his discretion make
available to the aggrieved person or his counsel for inspection
such portions of the intercepted communication or evidence
derived therefrom as the judge determines to be in the interests
of justice.

(b) In addition to any other right to appeal, the United States
shall have the right to appeal from an order granting a motion to
suppress made under paragraph (a) of this subsection, or the
denial of an application for an order of approval, if the United
States attorney shall certify to the judge or other official
granting such motion or denying such application that the appeal
is not taken for purposes of delay.  Such appeal shall be taken
within thirty days after the date the order was entered and shall
be diligently prosecuted.

(c) The remedies and sanctions described in this chapter with
respect to the interception of electronic communications are the
only judicial remedies and sanctions for nonconstitutional
violations of this chapter involving such communications.

(11) The requirements of subsections (1)(b)(ii) and (3)(d) of
this section relating to the specification of the facilities from
which, or the place where, the communication is to be intercepted
do not apply if --

(a) in the case of an application with respect to the
interception of an oral communication --

(i) the application is by a federal investigative or law
enforcement officer and is approved by the Attorney General, the
Deputy Attorney General, the Associate Attorney General, an
Assistant Attorney General, or an acting Assistant Attorney
General;

(ii) the application contains a full and complete statement as to
why such specification is not practical and identifies the person
committing the offense and whose communications are to be
intercepted; and

(iii) the judge finds that such specification is not practical;
and

(b) in the case of an application with respect to a wire or
electronic communication --

(iv) the application is by a Federal investigative or law
enforcement officer and is approved by the Attorney General, the
Deputy Attorney General, the Associate Attorney General, an
Assistant Attorney General, or an acting Assistant Attorney
General;

(v) the application identifies the person believed to be
committing the offense and whose communications are to be
intercepted and the applicant makes a showing of a purpose, on
the part of that person, to thwart interception by changing
facilities; and

(vi) the judge finds that such purpose has been adequately shown.

(12) An interception of a communication under an order with
respect to which the requirements of subsections (1)(b)(ii) and
(3)(d) of this section do not apply by reason of subsection
(11) shall not begin until the facilities from which, or the
place where, the communication is to be intercepted is
ascertained by the person implementing the interception order.  A
provider of wire or electronic communications service that has
received an order as provided for in subsection (11)(b) may move
the court to modify or quash the order on the ground that its
assistance with respect to the interception cannot be performed
in a timely or reasonable fashion.  The court, upon notice to the
government, shall decide such a motion expeditiously.


2519.  Reports concerning intercepted wire, oral, or electronic
communications

(1) Within thirty days after the expiration of an order (or each
extension thereof) entered under section 2518, or the denial of
an order approving an interception, the issuing or denying judge
shall report to the Administrative Office of the United States
Courts --

(a) the fact that an order or extension was applied for;

(b) the kind of order or extension applied for (including whether
or not the order was an order with respect to which the
requirements of sections 2518(1)(b)(ii) and 2518(3)(d) of this
title did not apply by reason of section 2518(11) of this title);

(c) the fact that the order or extension was granted as applied
for, was modified, or was denied;

(d) the period of interceptions authorized by the order, and the
number and duration of any extensions of the order;

(e) the offense specified in the order or application, or
extension of an order;

(f) the identity of the applying investigative or law enforcement
officer and agency making the application and the person
authorizing the application; and

(g) the nature of the facilities from which or the place where
communications were to be intercepted.

(2) In January of each year the Attorney General, an Assistant
Attorney General specially designated by the Attorney General, or
the principal prosecuting attorney of a State, or the principal
prosecuting attorney for any political subdivision of a State,
shall report to the Administrative Office of the United States
Courts--

(a) the information required by paragraphs (a) through (g) of
subsection (1) of this section with respect to each application
for an order or extension made during the preceding calendar
year;

(b) a general description of the interceptions made under such
order or extension, including (i) the approximate nature and
frequency of incriminating communications intercepted, (ii) the
approximate nature and frequency of other communications
intercepted, (iii) the approximate number of persons whose
communications were intercepted, and (iv) the approximate nature,
amount, and cost of the manpower and other resources used in the
interceptions;

(c) the number of arrests resulting from interceptions made under
such order or extension, and the offenses for which arrests were
made;

(d) the number of trials resulting from such interceptions;

(e) the number of motions to suppress made with respect to such
interceptions, and the number granted or denied;

(f) the number of convictions resulting from such interceptions
and the offenses for which the convictions were obtained and a
general assessment of the importance of the interceptions; and

(g) the information required by paragraphs (b) through (f) of
this subsection with respect to orders or extensions obtained in
a preceding calendar year.

(3) In April of each year the Director of the Administrative
Office of the United States Courts shall transmit to the Congress
a full and complete report concerning the number of applications
for orders authorizing or approving the interception of wire,
oral, or electronic communications pursuant to this chapter and
the number of orders and extensions granted or denied pursuant to
this chapter during the preceding calendar year.  Such report
shall include a summary and analysis of the data required to be
filed with the Administrative Office by subsections (1) and (2)
of this section.  The Director of the Administrative Office of
the United States Courts is authorized to issue binding
regulations dealing with the content and form of the reports
required to be filed by subsections (1) and (2) of this section.


2520.  Recovery of civil damages authorized

(a) IN GENERAL.--Except as provided in section 2511(2)(a)(ii),
any person whose wire, oral, or electronic communication is
intercepted, disclosed, or intentionally used in violation of
this chapter may in a civil action recover from the person or
entity which engaged in that violation such relief as may be
appropriate.

(b) RELIEF.--In an action under this section, appropriate relief
includes--

(1) such preliminary and other equitable or declaratory relief as
may be appropriate;

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

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

(c) COMPUTATION OF DAMAGES. --

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

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

(B) If, on one prior occasion, the person who engaged in that
conduct has been enjoined under section 2511(5) or has been found
liable in a civil action under this section, the court shall
assess the greater of the sum of actual damages suffered by the
plaintiff, or statutory damages of not less than $100 and not
more than $1,000.

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

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

(B) statutory damages of whichever is the greater of $100 a day
for each day of violation or $10,000.

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

(1) a court warrant or order, a grand jury subpoena, a
legislative authorization, or a statutory authorization;

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

(3) a good faith determination that section 2511(3) of this title
permitted the conduct complained of;

is a complete defense against any civil or criminal action
brought under this chapter or any other law.

(e) LIMITATION.--A civil action under this section may not be
commenced later than two years after the date upon which the
claimant first has a reasonable opportunity to discover the
violation.


2521. Injunction against illegal interception

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

CHAPTER 121- STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL

RECORDS ACCESS

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. Definitions


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 of not more than $250,000 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 of not more than $5,000 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.

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 2516, 2511(2)(a), or 2703