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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, kidnapping, 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
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 chpater 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.
(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
of this title;