BBS Toolkit/BBS Toolkit.iso/programs/bbslaw10.zip/ECPA3.STA

Text File | 1993-03-21 | 33KB | 773 lines

/* BBS LAW COMMENTARY: 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 vacate such court order, with copies served upon
the governmental entity and with written notice of such challenge
to the service provider.  A motion to vacate a court order shall
be filed in the court which issued such order.  A motion to quash
a subpoena shall be filed in the appropriate Unites States
district court or State court.  Such motion or application shall
contain an affidavit or sworn statement--

(A) stating that the applicant is a customer or subscriber to the
service from which the contents of electronic communications
maintained for him have been sought; and

(B) stating the applicant's reasons for believing that the
records sought are not relevant to a legitimate law enforcement
inquiry or that there has not been substantial compliance with
the provisions of this chapter in some other respect.

(2) Service shall be made under this section upon a governmental
entity by delivering or mailing by registered or certified mail a
copy of the papers to the person, office, or department specified
in the notice which the customer has received pursuant to this
chapter.  For the purposes of this section, the term "delivery"
has the meaning given that term in the Federal Rules of Civil
Procedure.

(3) If the court finds that the customer has complied with
paragraphs (1) an (2) of this subsection, the court shall order
the governmental entity to file a sworn response, which may be
filed in camera if the governmental entity includes in its
response the reasons which make in camera review appropriate.  If
the court is unable to determine the motion or application on the
basis of the parties' initial allegations and response, the court
may conduct such additional proceedings as it deems appropriate.
All such proceedings shall be completed and the motion or
application decided as soon as practicable after the filing of
the governmental entity's response.

(4) If the court finds that the applicant is not the subscriber
or customer for whom the communications sought by the
governmental entity are maintained, or that there is a reason to
believe that the law enforcement inquiry is legitimate and that
the communications sought are relevant to that inquiry, it shall
deny the motion or application and order such process enforced.
If the court finds that the applicant is the subscriber or
customer for whom the communications sought by the governmental
entity are maintained, and that there is not a reason to believe
that the communications sought are relevant to a legitimate law
enforcement inquiry, or that there has not been substantial
compliance with the provisions of this chapter, it shall order
the process quashed.

(5) A court order denying a motion or application under this
section shall not be deemed a final order and no interlocutory
appeal may be taken therefrom by the customer.


2705.  Delayed notice

(a) DELAY OF NOTIFICATION.--

(1) A governmental entity acting under section 2703(b) of this
title may--

(A) where a court order is sought, include in the application a
request, which the court shall grant, for an order delaying the
notification required under section 2703(b) of this title for a
period not to exceed ninety days, if the court determines that
there is reason to believe that notification of the existence of
the court order may have an adverse result described in paragraph
(2) of this subsection; or

(B) where an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury subpoena is
obtained, delay the notification required under section 2703(b)
of this title for a period not to exceed ninety days upon the
execution of a written certification of a supervisory official
that there is reason to believe that notification of the
existence of the subpoena may have an adverse result described in
paragraph (2) of this subsection.

(2) An adverse result for the purposes of paragraph (1) of this
subsection is--

(A) endangering the life or physical safety of an individual;

(B) flight from prosecution;

(C) destruction of or tampering with evidence;

(D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation or unduly
delaying a trial.

(3) The governmental entity shall maintain a true copy of
certification under paragraph (1)(B).

(4) Extensions of the delay of notification provided in section
2703 of up to ninety days each may be granted by the court upon
application, or by certification by a governmental entity, but
only in accordance with subsection (b) of this section.

(5) Upon expiration of the period of delay of notification under
paragraph (1) or (4) of this subsection, the governmental entity
shall serve upon, or deliver by registered or first- class mail
to, the customer or subscriber a copy of the process or request
together with notice that--

(A) states with reasonable specificity the nature of the law
enforcement inquiry; and

(B) informs such customer or subscriber--

(i) that information maintained for such customer or subscriber
by the service provider named in such process or request was
supplied to or requested by that governmental authority and the
date on which the supplying or request took place;

(ii) that notification of such customer or subscriber was delayed;

(iii) what governmental entity or court made the certification or
determination pursuant to which that delay was made; and

(iv) which provision of this chapter allowed such delay.

(6) As used in this subsection, the term "supervisory official"
means the investigative agent in charge or assistant
investigative agent in charge or an equivalent of an
investigating agency's headquarters or regional office, or the
chief prosecuting attorney or the first assistant prosecuting
attorney or an equivalent of a prosecuting attorney's
headquarters or regional office.

(b) PRECLUSION OF NOTICE TO SUBJECT OF GOVERNMENTAL ACCESS.-- A
governmental entity acting under section 2703, when it is not
required to notify the subscriber or customer under section
2703(b)(1), or to the extent that it may delay such notice
pursuant to subsection (a) of this section, may apply to a court
for an order commanding a provider of electronic communications
service or remote computing service to whom a warrant, subpoena,
or court order is directed, for such period as the court deems
appropriate, not to notify any other person of the existence of
the warrant, subpoena, or court order.  The court shall enter
such an order if it determines that there is reason to believe
that notification of the existence of the warrant, subpoena, or
court order will results in--

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly
delaying a trial.


2706.  Cost reimbursement

(a) PAYMENT.-- Except as otherwise provided in subsection (c), a
governmental entity obtaining the contents of communications,
records, or other information under section 2702, 2703, or 2704
of this title shall pay to the person or entity assembling or
providing such information a fee for reimbursement for such costs
as are reasonably necessary and which have been directly incurred
in searching for, assembling, reproducing, or otherwise providing
such information.  Such reimbursable costs shall include any
costs due to necessary disruption of normal operations of any
electronic communication service or remote computing service in
which such information may be stored.

(b) AMOUNT.-- The amount of the fee provided by subsection (a)
shall be as mutually agreed by the governmental entity and the
person or entity providing the information, or, in the absence of
agreement, shall be as determined by the court which issued the
order for production of such information (or the court before
which a criminal prosecution relating to such information would
be brought, if no court order was issued for production of the
information).

(c) The requirement of subsection (a) of this section does not
apply with respect to records or other information maintained by
a communications common carrier that relate to telephone toll
records and telephone listings obtained under section 2703 of
this title.  The court may, however, order a payment as described
in subsection (a) if the court determines the information
required is unusually voluminous in nature or otherwise caused an
undue burden on the provider.


2707.  Civil action

(a) CAUSE OF ACTION.-- Except as provided in section 2703(e), any
provider of electronic communication service, subscriber, or
customer aggrieved by any violation of this chapter in which the
conduct constituting the violation is engaged in with a knowing
or intentional state of mind may, in a civil action, recover from
the person or entity which engaged in that violation such relief
as may be appropriate.

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

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

(2) damages under subsection (c); and

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

(c) DAMAGES.-- The court may assess as damages in a civil action
under this section the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a result of the
violation, but in no case shall a person entitled to recover
receive less than the sum of $1,000.

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

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

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

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

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

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


2708.  Exclusivity of remedies

The remedies and sanctions described in this chapter are the only
judicial remedies and sanctions for nonconstitutional violations
of this chapter.


2709.  Counterintelligence access to telephone toll and
transactional records

(a) DUTY TO PROVIDE.-- A wire or electronic communication service
provider shall comply with a request for subscriber information
and toll billing records information, or electronic communication
transactional records in its custody or possession made by the
Director of the Federal Bureau of Investigation under subsection
(b) of this section.

(b) REQUIRED CERTIFICATION.-- The Director of the Federal Bureau
of Investigation (or an individual within the Federal Bureau of
Investigation designated for this purpose by the Director) may
request any such information and records if the Director (or the
Director's designee) certifies in writing to the wire or
electronic communication service provider to which the request is
made that--

(1) the information sought is relevant to an authorized foreign
counterintelligence investigation; and

(2) there are specific and articulable facts giving reason to
believe that the person or entity to whom the information sought
pertains is a foreign power or an agent of a foreign power as
defined in section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801).

(c) PROHIBITION OF CERTAIN DISCLOSURE.-- No wire or electronic
communication service provider, or officer, employee, or agent
thereof, shall disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or
records under this section.

(d) DISSEMINATION BY BUREAU.-- The Federal Bureau of
Investigation may disseminate information and records obtained
under this section only as provided in guidelines approved by the
Attorney General for foreign intelligence collection and foreign
counterintelligence investigations conducted by the Federal
Bureau of Investigation, and, with respect to dissemination to an
agency of the United States, only if such information is clearly
relevant to the authorized responsibilities of such agency.

(e) REQUIREMENT THAT CERTAIN CONGRESSIONAL BODIES BE INFORMED.--
On a semiannual basis the Director of the Federal Bureau of
Investigation shall fully inform the Permanent Select Committee
on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate concerning all requests
made under subsection (b) of this section.


2710.  Definitions for chapter

As used in this chapter -

(1) the terms defined in section 2510 of this title have,
respectively, the definitions given such terms in that section;
and

(2) the term "remote computing service" means the provision to
the public of computer storage or processing services by means of
an electronic communications system.


CHAPTER 205-SEARCHES AND SEIZURES

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

3117.  Mobile tracking devices.


3117.  Mobile tracking devices

(a). IN GENERAL.--If a court is empowered to issue a warrant or
other order for the installation of a mobile tracking device,
such order may authorize the use of that device within the
jurisdiction of the court, and outside that jurisdiction if the
device is installed in that jurisdiction.

(b). DEFINITION.--As used in this section, the term "tracking
device" means an electronic or mechanical device which permits
the tracking of the movement of a person or object.


CHAPTER 206-PEN REGISTERS AND TRAP TRACE DEVICES

Sec.

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

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

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

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

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

3126.  Definitions for chapter.


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

(a) In General.-Except as provided in this section, no person may
install or use a pen register or a trap and trace device without
first obtaining a court order under section 3123 of this title or
under the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).

(b) Exception.-The prohibition of subsection (a) does not apply
with respect to the use of a pen register or a trap and trace
device by a provider of electronic or wire communication service-

(1) relating to the operation, maintenance, and testing of a wire
or electronic communication service or to the protection of the
rights or property of such provider, or to the protection of
users of that service from abuse of service or unlawful use of
service; or

(2) to record the fact that a wire or electronic communication
was initiated or completed in order to protect such provider,
another provider furnishing service toward the completion of the
wire communication, or a user of that service, from fraudulent,
unlawful or abusive use of service; or with the consent of the
user of that service.

(c) Penalty.-Whoever knowingly violates subsection (a) shall be
fined under this title or imprisoned not more than one year, or
both.


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

(a) Application.-

(1) An attorney for the Government may make application for an
order or an extension of an order under section 3123 of this
title authorizing or approving the installation and use of a pen
register or a trap and trace device under this chapter, in
writing under oath or equivalent affirmation, to a court of
competent jurisdiction.

(2) Unless prohibited by State law, a State investigative law
enforcement officer may make application for an order or an
extension of an order under section 3123 of this title
authorizing or approving the installation and use of a pen
register or a trap and trace device under this chapter, in
writing under oath or equivalent affirmation, to a court of
competent jurisdiction of such State.

(b) Contents Of Application. - An application under subsection
(a) of this section shall include-

(1) the identity of the attorney for the Government or the State
law enforcement or investigative officer making the application
and the identity of the law enforcement agency conducting the
investigation; and

(2) a certification by the applicant that the information likely
to be obtained is relevant to an ongoing criminal investigation
being conducted by that agency.


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

(a) In General.-Upon an application made under section 3122 of
this title, the court shall enter an ex parte order authorizing
the installation and use of a pen register or a trap and trace
device within the jurisdiction of the court if the court finds
that the attorney for the Government or the State law enforcement
or investigative officer has certified to the court that the
information likely to be obtained by such installation and use is
relevant to an ongoing criminal investigation.

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

(1) shall specify-

(A) the identity, if known, of the person to whom is leased or in
whose name is listed the telephone line to which the pen register
or trap and trace device is to be attached;

(B) the identity, if known, of the person who is the subject of
the criminal investigation;

(C) the number and, if known, physical location of the telephone
line to which the pen register or trap and trace device is to be
attached and, in the case of a trap and trace device, the
geographic limits of the trap and trace order; and

(D) a statement of the offense to which the information likely to
be obtained by the pen register or trap and trace device relates;
and

(2) shall direct, upon the request of the applicant, the
furnishing of information, facilities, and technical assistance
necessary to accomplish the installation of the pen register or
trap and trace device under section 3124 of this title.

(c) Time Period And Extensions.-

(1) An order issued under this section shall authorize the
installation and use of a pen register or a trap and trace device
for a period not to exceed sixty days.

(2) Extensions of such an order may be granted, but only upon an
application for an order under section 3122 of this title and
upon the judicial finding required by subsection (a) of this
section.  The period of extension shall be for a period not to
exceed sixty days.

(d) Nondisclosure Of Existence Of Pen Register Or A Trap And
Trace Device.-An order authorizing or approving the installation
and use of a pen register or a trap and trace device shall direct
that-

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

(2) the person owning or leasing the line to which the pen
register or a trap and trace device is attached, or who has been
ordered by the court to provide assistance to the applicant, not
disclose the existence of the pen register or trap and trace
device or the existence of the investigation to the listed
subscriber, or to any other person, unless or until otherwise
ordered by the court.


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

(a) Pen Registers.-Upon the request of an attorney for the
Government or an officer of a law enforcement agency authorized
to install and use a pen register under this chapter, a provider
of wire or electronic communication service, landlord, custodian,
or other person shall furnish such investigative or law
enforcement officer forthwith all information, facilities, and
technical assistance necessary to accomplish the installation of
the pen register unobtrusively and with a minimum of interference
with the services that the person so ordered by the court accords
the party with respect to whom the installation and use is to
take place, if such assistance is directed by a court order as
provided in section 3123(b)(2) of this title.

(b) Trap And Trace Device.-Upon the request of an attorney for
the Government or an officer of a law enforcement agency
authorized to receive the results of a trap and trace device
under this chapter, a provider of a wire or electronic
communication service, landlord, custodian, or other person shall
install such device forthwith on the appropriate line and shall
furnish such investigative or law enforcement officer all
additional information, facilities and technical assistance
including installation and operation of the device unobtrusively
and with a minimum of interference with the services that the
person so ordered by the court accords the party with respect to
whom the installation and use is to take place, if such
installation and assistance is directed by a court order as
provided in section 3123(b)(2) of this title.  Unless otherwise
ordered by the court, the results of the trap and trace device
shall be furnished to the officer of a law enforcement agency,
designated in the court, at reasonable intervals during regular
business hours for the duration of the order.

(c) Compensation.-A provider of a wire or electronic
communication service, landlord, custodian, or other person who
furnishes facilities or technical assistance pursuant to this
section shall be reasonably compensated for such reasonable
expenses incurred in providing such facilities and assistance.

(d) No Cause Of Action Against A Provider Disclosing Information
Under This Chapter.-No cause of action shall lie in any court
against any provider of a wire or electronic communication
service, its officers, employees, agents, or other specified
persons for providing information, facilities, or assistance in
accordance with the terms of a court order under this chapter.

(e) Defense.-A good faith reliance on a court order, a
legislative authorization, or a statutory authorization is a
complete defense against any civil or criminal action brought
under this chapter or any other law.


3125.  Reports concerning pen registers and trap and trace
devices

The Attorney General shall annually report to Congress on the
number of pen register orders and orders for trap and trace
devices applied for by law enforcement agencies of the Department
of Justice.


3126.  Definitions for chapter

As used in this chapter-

(1) the terms "wire communication", "electronic communication",
and "electronic communication service" have the meanings set
forth for such terms in section 2510 of this title;

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

(A) a district court of the United States (including a magistrate
of such a court) or a United States Court of Appeals; or

(B) a court of general criminal jurisdiction of a State
authorized by the law of that State to enter orders authorizing
the use of a pen register or a trap and trace device;

(3) the term "pen register" means a device which records or
decodes electronic or other impulses which identify the numbers
dialed or otherwise transmitted on the telephone line to which
such device is attached, but such term does not include any
device used by a provider or customer of a wire or electronic
communication service for billing, or recording as an incident to
billing, for communications services provided by such provider or
any device used by a provider or customer of a wire communication
service for cost accounting or other like purposes in the
ordinary course of its business;

(4) the term "trap and trace" device means a device which
captures the incoming electronic or other impulses which identify
the originating number of an instrument or device from which a
wire or electronic communication was transmitted;

(5) the term "attorney for the Government" has the meaning given
such term for the purposes of the Federal Rules of Criminal
Procedure; and

(6) the term "State" means a State, the District of Columbia,
Puerto Rico, and any other possession or territory of the United
States.