ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B00858R000400470003-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 111
• Document Creation Date: December 22, 2016
• Document Release Date: December 29, 2010
• Sequence Number: 3
• Publication Date: June 19, 1986
• Content Type: OPEN SOURCE

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r'
99TH CONGRESS )
2d Session
( REPORT
jl 99-647
JUNE 19, 1986.-Committed to the Committee of the Whole House on the State of
the Union and ordered to be printed
Mr. KASTENMEIER, from the Committee on the Judiciary,
submitted the following
REPORT
[To accompany H.R. 4952]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 4952) to amend title 18, United States Code, with respect to
the interception of certain communications, other forms of surveil-
lance, and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the
bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Electronic Communications Privacy Act of 1986".
SEC. 101. FEDERAL PENALTIES FOR THE INTERCEPTION OF COMMUNICATIONS.
(a) DEFINITIONS.-(1) Section 2510(1) of title 18, United States Code, is amended-
(A) by striking out "any communication" and inserting "any aural transfer"
in lieu thereof;
(B) by inserting "(including the use of such connection in a switching sta-
tion)" after "reception".
(C) by striking out "as a common carrier" and
(D) by inserting before the semicolon at the end the following: "or communi-
cations affecting interstate or foreign commerce, but such term does not include
the radio portion of a cordless telephone communication that is transmitted be-
tween the cordless telephone handset and the base unit".
(2) Section 2510(2) of title 18, United States Code, is amended by inserting before
the semicolon at the end the following: ", but such term does not include any elec-
tronic communication".
(3) Section 2510(4) of title 18, United States Code, is amended-
(A) by inserting "or other" after "aural"; and
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(B) by inserting ", electronic," after "wire".
(4) Section 2510(8) of title 18, United States Code, is amended by striking out
"identity of the parties to such communication or the existence,".
(5) Section 2510 of title 18, United States Code, is amended-
(A) by striking out "and" at the end of paragraph (10);
(B) by striking out the period at the end of paragraph (11) and inserting a
semicolon in lieu thereof; and
(C) by adding at the end the following:
"(12) 'electronic communication' means any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photoelectronic or photooptical system
that affects interstate or foreign commerce, but does not include-
"(A) the radio portion of a cordless telephone communication that is
transmitted between the cordless telephone handset and the base unit;
"(13) any wire or oral communication;
"(C) any communication made through a tone-only paging device; or
"(D) any communication from a tracking device (as defined in section
3117 of this title);
"(13) 'user' means any person or entity who-
"(A) uses an electronic communication service; and
"(B) is duly authorized by the provider of such service to engage in such
use;
"(14) 'electronic communications system' means any wire, radio, electromag-
netic, photooptical or photoelectronic facilities for the transmission of electronic
communications, and any computer facilities or related electronic equipment for
the electronic storage of such communications;
"(15) 'electronic communication service' means any service which provides to
users thereof the ability to send or receive wire or electronic communications;
"(16) 'readily accessible to the general public' means, with respect to a radio
communication, that such communication is not-
"(A) scrambled or encrypted;
"(B) transmitted using modulation techniques whose essential parameters
have been withheld from the public with the intention of preserving the
privacy of such communication;
"(C) carried on a subcarrier or other signal subsidiary to a radio trans-
mission;
"(D) transmitted over a communication system provided by a common
carrier, unless the communication is a tone only paging system communica-
tion; or
"(E) transmitted on frequencies allocated under part 25, subpart D, E, or
F of part 74, or part 94 of the Rules of the Federal Communications Com-
mission, unless, in the case of a communication transmitted on a frequency
allocated under part 74 that is not exclusively allocated to broadcast auxil-
iary services, the communication is a two-way voice communication by
radio;
"(17) 'electronic storage' means-
"(A) any temporary, intermediate storage of a wire or electronic commu-
nication incidental to the electronic transmission thereof; and
"(B) any storage of such communication by an electronic communication
service for purposes of backup protection of such communication; and
"(18) 'aural transfer' means a transfer containing the human voice at any
point between and including the point of origin and the point of reception.".
(b) EXCEPTIONS WrrH RESPECT TO ELECTRONIC COMMUNICATIONS.-
(1) Section 2511(2Xd) of title 18, United States Code, is amended by striking out
"or for the purpose of committing any other injurious act".
(2) Section 2511(2Xf) of title 18, United States Code, is amended-
(A) by inserting "or chapter 121" after "this chapter"; and
(B) by striking out "by" the second place it appears and inserting in lieu
thereof ", or foreign intelligence activities conducted in accordance with other-
wise applicable Federal law involving a foreign electronic communications
system, utilizing".
(3) Section 2511(2) of title 18, United States Code, is amended by adding at the end
the following:
"(g) It shall not be unlawful under this chapter or chapter 121 of this title for any
person-
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"(i) to intercept or access an electronic communication made through an elec-
tronic communication system that is configured so that such electronic commu-
nication is readily accessible to the general public;
"(ii) to intercept any radio communication which is transmitted-
"(I) by any station for the use of the general public, or that relates to
ships, aircraft, vehicles, or persons in distress;
"(II) by any governmental, law enforcement, civil defense, or public safety
communications system, including police and fire, readily accessible to the
general public;
"(III) by a station operating on a frequency assigned to the amateur, citi-
zens band, or general mobile radio services; or
"(IV) by any marine or aeronautical communications system;
"(iii) to engage in any conduct which-
"(I) is prohibited by section 633 of the Communications Act of 1934; or
"(II) is excepted from the application of section 705(a) of the Communica-
tions Act of 1934 by section 705(b) of that Act;
"(iv) to intercept any wire or electronic communication the transmission of
which is causing harmful interference to any lawfully operating station, to the
extent necessary to identify the source of such interference; or
"(v) for other users of the same frequency to intercept any radio communica-
tion made through a common carrier system that utilizes frequencies monitored
by individuals engaged in the provision or the use of such system, if such com-
munication is not scrambled encrypted.
"(h) It shall not be unlawful under this chapter-
"(i) to use a pen register (as that term is defined for the purposes of chapter
206 (relating to pen registers) of this title);
"(ii) for a provider of electronic communication service to record the fact that
a wire or electronic communication was initiated or completed in order to pro-
tect such provider, another provider furnishing service toward the completion of
the wire or electronic communication, or a user of that service, from fraudulent,
unlawful or abusive use of such service; or
"(iii) to use a device that captures the incoming electronic or other impulses
which identify the numbers of an instrument from which a wire communication
was transmitted.".
(c) TECHNICAL AND CONFORMING AMENDMENTS.-(1) Chapter 119 of title 18, United
States Code, is amended-
(A) in each of sections 2510(5), 2510(8), 2510(9)(b), 2510(11), and 2511 through
2519 (except sections 2516(1) and 2518(10)), by striking out "wire or oral" each
place it appears (including in any section heading) and inserting "wire, oral, or
electronic" in lieu thereof; and
(B) in section 2511(2)(b), by inserting "or electronic" after "wire".
(2) The heading of chapter 119 of title 18, United States Code, is amended by in-
serting "and electronic communications" after "wire".
(3) The item relating to chapter 119 in the table of chapters at the beginning of
part I of title 18 of the United States Code is amended by inserting "and electronic
communications" after "Wire".
(4) Section 2510(5Xa) of title 18, United States Code, is amended by striking out
"communications common carrier" and inserting "provider of wire or electronic
communication service" in lieu thereof.
(5) Section 2511(2XaXi) of title 18, United States Code, is amended-
(A) by striking out "any communication common carrier" and inserting "a
provider of wire or electronic communication service" in lieu thereof;
(B) by striking out "of the carrier of such communication" and inserting "of
the provider of that service" in lieu thereof; and
(C) by striking out ": Provided, That said communication common carriers"
and inserting ", except that a provider of wire communication service to the
public" in lieu thereof.
(6) Section 2511(2XaXii) of title 18, United States Code, is amended-
(A) by striking out "communication common carriers" and inserting "provid-
ers of wire or electronic communication service" in lieu thereof;
(B) by striking out "communication common carrier" each place it appears
and inserting "provider of wire or electronic communication service" in lieu
thereof; and
(C) by striking out "if the common carrier" and inserting "if such provider"
in lieu thereof.
(7) Section 2512(2Xa) of title 18, United States Code, is amended-
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(A) by striking out "a communications common carrier" the first place it ap-
pears and inserting "a provider of wire or electronic communication service" in
lieu thereof; and
(B) by striking out "a communications common carrier" the second place it
appears and inserting "such a provider" in lieu thereof; and
(C) by striking out "communications common carrier's business" and insert-
ing "business of providing that wire or electronic communication service" in
lieu thereof.
(8) Section 2518(4) of title 18, United States Code, is amended by striking out
"communication common carrier" and inserting "provider of electronic communica-
tion service" in lieu thereof.
(d) PENALTDIS MoDIFICATIOx.-(1) Section 2511(1) of title 18, United States Code, is
amended by striking out "shall be" and all that follows through "or both" and in-
serting in lieu thereof "shall be punished as provided in subsection (4)".
(2) Section 2511 of title 18, United States Code, is amended by adding after the
material added by section 102 the following:
"(4Xa) Except as provided in paragraph (b) of this subsection, whoever violates
subsection (1) of this section shall be fined under this title or imprisoned not more
than five years, or both.
"(b) If the offense is a first offense under paragraph (a) of this subsection and is
not for a tortious or illegal purpose or for purposes of direct or indirect commercial
advantage or private commercial gain, and the wire or electronic communication
with respect to which the offense under paragraph (a) is a radio communication,
then-
"(i) if the communication is not the radio portion of a cellular telephone com-
munication, the offender shall be fined under this title or imprisoned not more
than one year, or both; and
"(ii) if the communication is the radio portion of a cellular telephone commu-
nication, the offender shall be fined not more than $500 or imprisoned not more
than six months, or both.
"(C) Conduct otherwise an offense under this subsection that consists of or relates
to the interception of a satellite transmission that is not encrypted or scrambled
and that is transmitted to a broadcasting station for purposes of retransmission to
the general public is not an offense under this subsection unless the conduct is for
the purposes of direct or indirect commercial advantage or private financial gain.".
(e) ExCLUSIvITY OF REMEDIES WITH RESPECT TO ELECTRONIC CoMMUNICATIONS.-
Section 2518(10) of title 18, United States Code, is amended by adding at the end the
following:
"(c) The remedies and sanctions described in this chapter with respect to the
interception of electronic communications are the only judicial remedies and sanc-
tions for nonconstitutional violations of this chapter involving such communica-
tions.".
SEC. 103. REQUIREMENTS FOR CERTAIN DISCLOSURES.
Section 2511 of title 18, United States Code, is amended by adding at the end the
following-
" (SXA) Except as provided in subparagraph (B) of this paragraph, a person or
entity providing an electronic communication service to the public shall not willful-
ly divulge the contents of any communication (other than one to such person or
entity, or an agent thereof) while in transmission on that service to any person or
entity other than an addressee or intended recipient of such communication or an
agent of such addressee or intended recipient.
"(B) A person or entity providing electronic communication service to the public
may divulge the contents of any such communication-
AD as otherwise authorized in section 2511(2Xa) or 2517 of this title;
"(ii) with the lawful consent of the originator or any addressee or intended
recipient of such communication;
"(iii) to a person employed or authorized, or whose facilities are used, to for-
ward such communication to its destination; or
"(iv) which were inadvertently obtained by the service provider and which
appear to pertain to the commission of a crime, if such divulgence is made to a
law enforcement agency.".
SEC. 103. RECOVERY OF CIVIL DAMAGES.
Section 2520 of title 18, United States Code, is amended to read as follows:
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'T 2520. Recovery of civil damages authorized
"(a) IN GENERAL.-Any person whose wire, oral, or electronic communication is
intercepted, disclosed, or willfully 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 ap-
propriate;
"(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.-The court may assess as damages in an action
under this section whichever is the greater of-
"(1) the sum of the actual damages suffered by the plaintiff and any profits
made by the violator as a result of the violation; or
"(2) 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 authoriza-
tion, 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 chap-
ter or any other provision of 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 oppor-
tunity to discover the violation.'.
SEC. 104. CERTAIN APPROVALS BY JUSTICE DEPARTMENT OFFICIALS.
Section 2516(1) of title 18 of the United States Code is amended bey striking out
or any Assistant Attorney General" and inserting in lieu thereof `any Assistant
Attorney General, any acting Assistant Attorney General, or any Deputy Assistant
Attorney General in the Criminal Division".
SEC. 105. ADDITION OF OFFENSES TO CRIMES FOR WHICH INTERCEPTION IS AUTHORIZED.
(a) WIRE AND ORAL INTERCEPTIONS.-Section 2516(1) of title 18 of the United States
Code is amended-
(1) in paragraph (C)-
(A) by inserting "section 751 (relating to escape)," after "wagering infor-
mation),";
(B) by striking out "2314" and inserting "2312, 2313, 2314," in lieu there-
of;
(C) by inserting "the second section 2320 (relating to trafficking in certain
motor vehicles or motor vehicle parts), section 1203 (relating to hostage
taking), section 1029 (relating to fraud and related activity in connection
with access devices), section 3146 (relating to penalty for failure to appear),
section 3521(bX3) (relating to witness relocation and assistance), section 32
(relating to destruction of aircraft or aircraft facilities)," after "stolen prop-
erty),";
(D) by inserting "section 1952A (relating to use of interstate commerce fa-
cilities in the commission of murder for hire), section 1952B (relating to vio-
lent crimes in aid of racketeering activity)," after "1952 (interstate and for-
eign travel or transportation in aid of racketeering enterprises),"; and
(E) by inserting ", section 115 (relating to threatening or retaliating
against a Federal official), the section in chapter 65 relating to destruction
of an energy facility, and section 1341 (relating to mail fraud)," after "sec-
tion 1963 (violations with respect to racketeer influenced and corrupt orga-
nizations)";
(2) by striking out "or" at the end of paragraph (g);
(3) by inserting after paragraph (g) the following:
"(h) any felony violation of sections 2511 and 2512 (relating to interception
and disclosure of certain communications and to certain intercepting devices) of
this title;
"(i) the location of any fugitive from justice from an offense described in this
section; or"; and
(4) by redesignating paragraph (h) as paragraph (j).
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(b) INTERCEPTION OF ELECTRONIC CoMMUNICATioNs.-Section 2516 of title 18 of the
United States Code is amended by adding at the end the following.
"(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, an order authorizing or approving the interception of elec-
tronic communications by an investigative or law enforcement officer having re-
sponsibility for the investigation of the offense as to which the application is made,
when such interception may provide or has provided evidence of any Federal
felony.".
SEC. 106. APPLICATIONS, ORDERS, AND IMPLEMENTATION OF ORDERS.
(a) PLACE OF AUTHORIZED INTERCEPTION.-Section 2518(3) of title 18 of the United
States Code is amended by inserting "(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)" after "within the territorial jurisdiction of the court
in which the judge is sitting".
(b) REIMBURSEMENT FOR AssisTANCE.-Section 2518(4) of title 18 of the United
States Code is amended by striking out "at the prevailing rates" and inserting in
lieu thereof "for re asonable expenses incurred in providing such facilities or assist-
ance".
(c) COMMENCEMENT OF 30-DAY PERIOD AND PosTPONEMENT OF MINIMIZATION.-Sec-
tion 2518(5) of title 18 of the United States Code is amended-
(1) by inserting after the first sentence the following: "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."; and
(2) by adding at the end the following: "In the event the intercepted commu-
nication 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 inter-
ception under this chapter may be conducted in whole or in part by Govern-
ment personnel, or by an individual operating under a contract with the Gov-
ernment, acting under the supervision of an investigative or law enforcement
officer authorized to conduct the interception.".
(d) ALTERNATIVE To DESIGNATING SPECIFIC FACILITIES FROM WHICH CoMMUNICA-
TIONS ARE TO BE INTERCEPTED.-(1) Section 2518(lXbXii) of title of the United States
Code is amended by inserting "except as provided in subsection (11)," before "a par-
ticular description' .
(2) Section 2518(3Xd) of title 18 of the United States Code is amended by inserting
"except as provided in subsection (11)," before "there is".
(3) Section 2518 of title 18 of the United States Code is amended by adding at the
end the following:
"(11) The requirements of subsections (lXbXii) and (3Xd) 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-
"(i) 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 offi-
cer 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;
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
"(ii) in the case of an application with respect to a wire or electronic commu-
nication-
"(I) the application is by a Federal investigative or law enforcement offi-
cer 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 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 inter-
ception by changing facilities; and
'(III) the judge finds that such purpose has been adequately shown.
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"(12) An interception of a communication under an order with respect to which
the requirements of subsections (1)(bXii) and (3Xd) 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 imple-
menting the interception order.".
(4) Section 2519(l)(b) of title 18, United States Code, is amended by inserting "(in-
cluding whether or not the order was an order with respect to which the require-
ments of sections 2518(l)(bXii) and 2518(3Xd) of this title did not apply by reason of
section 2518(11) of this title)" after "applied for".
SEC. 107. INTELLIGENCE ACTIVITIES.
(a) IN GENERAL.-Nothing in this Act or the amendments made by this Act consti-
tutes authority for the conduct of any intelligence activity.
(b) CERTAIN ACTIVITIES UNDER PROCEDURES APPROVED BY THE ATTORNEY GENER-
AL.-Nothing in chapter 119 or chapter 121 of title 18, United States Code, shall
affect the conduct, by officers or employees of the United States Government in ac-
cordance with other applicable Federal law, under procedures approved by the At-
torney General of activities intended to-
(1) intercept encrypted or other official communications of United States exec-
utive branch entities or United States Government contractors for communica-
tions security purposes;
(2) intercept radio communications transmitted between or among foreign
powers or agents of a foreign power as defined by the Foreign Intelligence Sur-
veillance Act of 1978; or
(3) access an electronic communication system used exclusively by a foreign
power or agent of a foreign power as defined by the Foreign Intelligence Sur-
veillance Act of 1978.
SEC. 108. MOBILE TRACKING DEVICES.
(a) IN GENERAL.-Chapter 205 of title 18, United States Code, is amended by
adding at the end the following:
"? 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.".
(b) CLERICAL AMENDMENT.-The table of contents at the beginning of chapter 205
of title 18, United States Code, is amended by adding at the end the following:
"3117. Mobile tracking devices.".
SEC. 109. WARNING SUBJECT OF SURVEILLANCE.
Section 2232 of title 18, United States Code, is amended-
(1) by inserting "(a) PHYSICAL INTERFERENCE WITH SEARCH.-" before "Whoev-
er" the first place it appears;
(2) by inserting "(b) NOTICE OF SEARCH.-" before "Whoever" the second place
it appears; and
(3) by adding at the end the following:
"(c) NOTICE OF CERTAIN ELECTRONIC SURVEILLANCE.-Whoever, having knowledge
that a Federal investigative or law enforcement officer has been authorized or has
applied for authorization under chapter 119 to intercept a wire, oral, or electronic
communication, in order to obstruct, impede, or prevent such interception, gives
notice or attempts to give notice of the possible interception to any person shall be
fined under this title or imprisoned not more than five years, or both.
"Whoever, having knowledge that a Federal officer has been authorized or has
applied for authorization to conduct electronic surveillance under the Foreign Intel-
ligence Surveillance Act (50 U.S.C. 1801, et seq.), in order to obstruct, impede, or
prevent such activity, gives notice or attempts to give notice of the possible activity
to any person shall be fined under this title or imprisoned not more than five years,
or both.".
SEC. 110. INJUNCTIVE REMEDY.
(a) IN GENERAL.-Chapter 119 of title 18, United States Code, is amended by
adding at the end the following:
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"0 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 hear-
ing and determination of such an action, and may, at any time before final determi-
nation, 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 proceed-
ing 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 gov-
erned by the Federal Rules of Criminal Procedure.".
(b) CLERICAL AMENDMENT.-The table of sections at the beginning of chapter 119
of title 18, United States Code, is amended by adding at the end thereof the follow-
ing:
"2521. Injunction against illegal interception.".
SEC. 111. EFFECTIVE DATE.
(a) IN GENERAL.-Except as provided in subsection (b), this title and the amend-
ments made by this title shall take effect 90 days after the date of the enactment of
this Act and shall, in the case of conduct pursuant to a court order or extension,
apply only with respect to court orders or extensions made after this title takes
effect.
(b) SPECIAL RULE FOR STATE AUTHORIZATIONS of INTERCEPTIONS.-Any interception
pursuant to section 2516(2) of title 18 of the United States Code which would be
valid and lawful without regard to the amendments made by this title shall be valid
and lawful notwithstanding such amendments if such interception occurs during the
period beginning on the date such amendments take effect and ending on the earli-
er of-
(1) the day before the date of the taking effect of State law conforming the
applicable State statute with chapter 119 of title 18, United States Code, as so
amended; or
(2) the date two years after the date of the enactment of this Act.
TITLE II-STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
SEC. 201. TITLE 18 AMENDMENT.
Title 18, United States Code, is amended by inserting after chapter 119 the follow-
ing:
"CHAPTER 121-STORED WIRE AND ELECTRONIC COMMU-
NICATIONS AND TRANSACTIONAL RECORDS ACCESS
"See.
"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.
"9 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.
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"(b) PUNISHMENT.-The punishment for an offense under subsection (a) of this sec-
tion is-
"(1) if the offense is committed for purposes of commercial advantage, mali-
cious 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 con-
duct 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 or 2704 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 communica-
tion 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 communica-
tion-
"(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(2Xa), or 2703 of this title;
"(3) with the lawful consent of the originator or an addressee or intended re-
cipient of such communication, or the subscriber in the case of remote comput-
ing service;
"(4) to a person employed or authorized or whose facilities are used to for-
ward 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.
'T 2703. Requirements for governmental access
"(a) CONTENTS OF ELECTRONIC COMMUNICATIONS IN ELECTRONIC STORAGE.-A gov-
ernmental entity may require the disclosure by a provider of electronic communica-
tion service of the contents of a non-voice wire communication or an electronic com-
munication, that is in electronic storage in an electronic communications system for
180 days or less, only pursuant to a warrant issued under the Federal Rules of
Criminal Procedure or equivalent State warrant. A governmental entity may re-
quire the disclosure by a provider of electronic communications services of the con-
tents of an electronic communication that has been in electronic storage in an elec-
tronic communications system for more than 180 days by the means available under
subsection (b) of this section.
"(b) CONTENTS OF ELECTRONIC COMMUNICATIONS IN A REMOTE COMPUTING SERV-
ICE.-(l) 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-
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"(A) without required notice to the subscriber or customer, if the governmen-
tal entity obtains a warrant issued under the Federal Rules of Criminal Proce-
dure or equivalent State warrant; or
"B) with prior notice from the governmental entity to the subscriber or cus-
tomer 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 com-
puting service; and
"(B) solely for the purpose of providing storage or computer processing serv-
ices 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 EtacrEoNIc COMMUNICATIONS SERVICE OR REMOTE COM-
PUTING SERvxca.-A governmental entity may require a provider of electronic com-
munications service or remote computing service to disclose a record or other infor-
mation 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) without
required notice to the subscriber or customer if the governmental entity-
"(1) uses an administrative subpoena authorized by a Federal or State statute,
or a Federal or State grand jury subpoena;
"(2) obtains a warrant issued under the Federal Rules of Criminal Procedure
or equivalent State warrant; or
"(3) obtains a court order for such disclosure under subsection (d) of this sec-
tion.
"(d) Rmqunun raITS Pon COURT ORDER.-A court order for disclosure under subsec-
tion (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.
"9 2704. Backup preservation
"(a) BACKUP PRasERvATION.-(1) A governmental entity acting under section
2703(bX2) 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. With-
out notifying the subscriber or customer of such subpoena or court order, such serv-
ice 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 de-
layed 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 govern-
mental entity no sooner than 14 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 sub-
scriber or customer has challenged the governmental entity's request; and
"(B) has not initiated proceedings to challenge the request of the governmen-
tal entity.
"(5) A governmental entity may seek to require the creation of a backup copy
under subsection (aXl) 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
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with evidence. This determination is not subject to challenge by the subscriber or
customer or service provider.
"(b) CUSTOMER CHALLENGES.-(1) Within 14 days after notice by the governmental
entity to the subscriber or customer under subsection (aX2) of this section, such sub-
scriber 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 United 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 re-
spect.
"(2) Service shall be made under this section upon a governmental entity by deliv-
ering 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 pursu-
ant 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) and (2)
of this subsection, the court shall order the governmental entity to file a sworn re-
sponse, which may be filed in camera if the governmental entity includes in its re-
sponse 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 appro-
priate. All such proceedings shall be completed and the motion or application decid-
ed 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 sec-
tion 2703(b) of this title for a period not to exceed 90 days; if the court deter-
mines 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 sub-
section; or
"(B) where an administrative subpoena authorized by a Federal or State stat-
ute 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 90 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.
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"(3) The governmental entity shall maintain a true copy of certification under
paragraph (1XB).
"(4) Extensions of the delay of notification provided in section 2703 of up to 90
days each may be granted by the court upon application, or by certification by a
governmental entity, but only in accordance with subsection (b) or (c) 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 regis-
tered or first class mail to, the customer or subscriber a copy of the process or re-
quest together with notice that-
"(A) states with reasonable specificity the nature of the law enforcement in-
qu
; and
5) 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 re-
quested by that govern mental authority and the date on which the supply-
in~ or request took lace;
`(u) that notification of such customer or subscriber was delayed;
"(iii) what governmental entity or court made the certification or deter-
mination pursuant to which that delay was made; and
"(iv) which provision of this chapter allowed such dela .
"(6) Ae used in this subsection, the term 'supervisory off vial' means the in-
vestigative 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 Aoczss.-A governmen-
tal entity acting under section 2703, when it is not required to notify the subscriber
or customer under section 2703(bXl), 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 com-
manding a provider of electronic communications service or remote computing serv-
ice 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 war-
rant, 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, sub-
poena, or court order will result 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.
" 0 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 as-
sembling or providing such information a fee for reimbursement for such costs as
are reasonably necessary and which have been directly incurred in searching for,
assembliing, reproducing, or otherwise providing such information. Such reimbursa-
ble costs shall include any costs due to necessary disruption of normal operations of
an 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 mutu-
ally agreed by the governmental entity and the person or entity providing the infor-
mation, 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 subsec-
tion (a) if the court determines the information required is unusually voluminous in
nature or otherwise caused an undue burden on the provider.
"0 2707. Civil action
"(a) CAUSE of ACTION.-Any provider of electronic communication service, sub-
scriber, or customer aggrieved by any violation of this chapter in which the conduct
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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 vio-
lation 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 ap-
propriate;
"(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 sec-
tion 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 authoriza-
tion, 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 reme-
dies and sanctions for nonconstitutional violations of this chapter.
"? 2709. Counterintelligence access to telephone toll and transactional records
"(a) DUTY TO PROVIDE.-A Communications common carrier or an electronic com-
munication service provider shall comply with a request made for telephone sub-
scriber information and toll billing records information, or electronic communica-
tion transactional records made by the Director of the Federal Bureau of Investiga-
tion under subsection (b) of this section.
"(b) REQUIRED CERTIFICATION.-The Director of the Federal Bureau of Investiga-
tion (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 Direc-
tor (or the Director's designee) certifies in writing to the carrier or provider to
which the request is made that-
"(1) the information sought is relevant to an authorized foreign counterintelli-
gence 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 communications common carrier or
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 informa-
tion or records under this section.
"(d) DISSEMINATION BY BUREAU.-The Federal Bureau of Investigation may dis-
seminate 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 Inves-
tigation, 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 Representa-
tives 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 defi-
nitions given such terms in that section; and
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"(2) the term 'remote computing service' means the provision to the public of
computer storage or processing services by means of an electronic communica-
tions system.".
(b) CLERICAL AMENDMENT.-The table of chapters at the beginning of part I of
title 18, United States Code, is amended by adding at the end the following:
"121. Stored Wire and Electronic Communications and Transactional
Records Access ........................................................................ 2701".
SEC. 202. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect 90 days after
the date of the enactment of this Act and shall, in the case of conduct pursuant to a
court order or extension, apply only with respect to court orders or extensions made
after this title takes effect.
SEC. 301. TITLE 18 AMENDMENT.
(a) IN GENERAL.-Title 18 of the United States Code is amended by inserting after
chapter 205 the following new chapter:
"Sec.
"3121. General prohibition on pen register use; exception.
"3122. Application for an order for a pen register.
"3123. Issuance of an order for a pen register.
"3124. Assistance in installation and use of a pen register.
"3125. Reports concerning pen registers.
"3126. Definitions for chapter.
' 1 3121. General prohibition on pen register use; exception
"(a) IN GENERAL.-Except as provided in this section, no person may install or use
a pen register 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) ExcKrrloN.-The prohibition of subsection (a) does not apply with respect to
the use of a pen register 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 pro-
vider, or to the protection of users of that service from abuse of service or un-
lawful 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 serv-
ice, from fraudulent, unlawful or abusive use of service, or with the consent or
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.
'T 3122. Application for an order for a pen register
"(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 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 or law enforcement offi-
cer 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
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 sec-
tion shall include-
"(1) the identity of the attorney for the Government or the State law enforce-
ment 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.
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3123. Issuance of an order for a pen register
"(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 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 is to be attached;
"(B) the identity, if known, of the person who is the subject of the crimi-
nal investigation;
"(C) the number and, if known, physical location of the telephone line to
which the pen register is to be attached; and
"(D) a statement of the offense to which the information likely to be ob-
tained by the pen register relates; and
"(2) shall direct, upon the request of the applicant, the furnishing of informa-
tion, facilities, and technical assistance necessary to accomplish the installation
of the pen register 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 for a period not to exceed 60
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 60 days.
"(d) NONDISCLOSURE OF EXISTENCE OF PEN REGISTER.-An order authorizing or ap-
provinf the installation and use of a pen register 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 is at-
tached, or who has been ordered by the court to provide assistance to the appli-
cant, not disclose the existence of the pen register or the existence of the inves-
tigation to the listed subscriber, or to any other person, unless or until other-
wise ordered by the court.
"? 3124. Assistance in installation and use of a pen register
"(a) IN GENERAL.-Upon the request of an attorney for the government or an offi-
cer of a law enforcement agency authorized to install and use a pen register under
this chapter, a provider of wire communication service, landlord, custodian, or other
person shall furnish such investigative or law enforcement officer forthwith all in-
formation, facilities, and technical assistance necessary to accomplish the installa-
tion 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(bX2) of this title.
"(b) COMPENSATION.-A provider of wire communication service, landlord, custodi-
an, 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.
" 3125. Reports concerning pen registers
"The Attorney General shall annually report to Congress on the number of pen
register orders applied for by law enforcement agencies of the Department of Jus-
tice.
"? 3126. Definitions for chapter
"As used in this chapter-
"(1) the term 'communications common carrier' has the meaning set forth for
the term 'common carrier' in section 3(h) of the Communications Act of 1934 (47
U.S.C. 153(h));
"(2) the term 'wire communication' has the meaning set forth for such term
in section 2510 of this title;
"(3) 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;
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"(4) the term `pen register' means a device which records or decodes electron-
ic or other impulses which identify the numbers dialed or otherwise transmit-
ted, with respect to wire communications, on the telephone line to which such
device is attached, but such term does not include any device used by a provider
of wire communication service for billing, or recording as an incident to billing,
for communications services provided by such provider; and
"(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.".
(b) CLERIcAL AMENDMENT.-The table of chapters for part II of title 18 of the
United States Code is amended by inserting after the item relating to chapter 205
the following new item:
"206. Pen Registers ...................................................................................................... 3121".
SEC. 302. EFFECTIVE DATE.
(a) IN GENERAL.-Except as provided in subsection (b), this title and the amend-
ments made by this title shall take effect 90 days after the date of the enactment of
this Act and shall, in the case of conduct pursuant to a court order or extension,
apply only with respect to court orders or extensions made after this title takes
effect.
(b) SPECIAL RULE FOR STATE AuTHoRIZATIoxs OF INTERCEPTIONS.-Any pen register
order or installation which would be valid and lawful without regard to the amend-
ments made by this title shall be valid and lawful notwithstanding such amend-
ments if such order or installation occurs during the period beginning on the date
such amendments take effect and ending on the earlier of-
(1) the day before the date of the taking effect of changes in State law re-
quired in order to make orders or installations under Federal law as amended
by this title; or
(2) the date two years after the date of the enactment of this Act.
PURPOSE
The purpose of the legislation is to amend title 18 of the United
States Code to prohibit the interception of certain electronic com-
munications; to provide procedures for interception of electronic
communications by federal law enforcement officers; to provide
procedures for access to communications records by federal law en-
forcement officers; to provide procedures for federal law enforce-
ment access to electronically stored communications; and to ease
certain procedural requirements for interception of wire communi-
cations by federal law enforcement officers.
HISTORY
When the Framers of the Constitution acted to guard against the
arbitrary use of government power to maintain surveillance over
citizens, there were limited methods of intrusion into the "houses,
papers and effects" protected by the Fourth Amendment. During
the intervening 200 years, development of new methods of commu-
nication and devices for surveillance has expanded dramatically
the opportunity for such intrusions.
The telephone is the most obvious example. Its widespread use
made it technologically possible to intercept the communications of
citizens without entering homes or other private places. When the
issue of government wiretapping first came before the Supreme
Court in Olmstead v. United States, 277 U.S. 438, the Court held
that wiretapping did not violate the Fourth Amendment, since
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there was no searching, no seizure of anything tangible, and no
physical trespass.1
But the Olmstead case is remembered not only for its holding but
for the prescient dissent of Mr. Justice Brandeis, who predicted:
Ways may some day be developed by which the Govern-
ment, without removing papers from secret drawers, can
reproduce them in court, and by which it will be enabled
to expose to a jury the most intimate occurrences of the
home . . . Can it be that the Constitution affords no pro-
tection against such invasions of individual security? 2
Forty years later, the Supreme Court accepted the logic of Jus-
tice Brandeis in Katz v. United States, 389 U.S. 347 (1967), holding
that the Fourth Amendment applies to government interception) of
a telephone conversation. At the same time, the Court extended
Fourth Amendment protection to electronic eavesdropping on oral
conversations in Berger v. New York, 388 U.S. 41 (1967).
Congress responded in a comprehensive fashion by authorizing
government interception, under carefully subscribed circumstances,
in Title III of the Omnibus Crime Control and Safe Streets Act of
1968,3 which has come to be known as the Wiretap Act. That legis-
lation protected two common types of communication-telephone
conversations and face-to-face oral communications-against elec-
tronic eavesdropping. Specifically, the law barred the interception
of wire communications over a common carrier unless an appropri-
ate court order had been obtained.4 Further, it limited the concept
of interception to the "aural acquisition" of the contents of a com-
munication.5 "Oral communications" were protected only in cir-
cumstances where there is a reasonable expectation of privacy.6
NATURE OF THE PROBLEM
Although it is still not twenty years old, the Wiretap Act was
written in different technological and regulatory era. Communica-
tions were almost exclusively in the form of transmission of the
human voice over common carrier networks. Moreover, the con-
tents of a traditional telephone call disappeared once the words
transmitted were spoken and there were no records kept. Conse-
quently the law primarily protects against the aural interception of
the human voice over common carrier networks.
The legislation did not attempt to address the interception of
text, digital or machine communication.7 This statutory framework
appears to leave unprotected an important sector of the new com-
munications technologies.
Many communications today are carried on or through systems
which are not common carriers. Electronic mail, videotex and simi-
lar services are not common carrier services. Under existing law
' Olmstead v. United States, 277 U.S. 438, 464 (1927). Compare, Dow Chemical Co. v. United
States, - U.S. - (May 19, 1986) (aerial photography by government without a warrant does not
violate Fourth Amendment); California v. Ciraolo, - U.S. - (May 19, 1986) (same).
2 277 U.S. at 474 (Brandeis, J., dissenting).
s 18 U.S.C. 2510 et seq. hereinafter "Wiretap Act."
4 18 U.S.C. 2511.
5 18 U.S.C. 2510.
6Id.
, Sen. Rep. No. 1097, 90th Cong., 2d Sess. 90, hereinafter "1968 Senate Report."
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the interception of these services or the disclosure of the contents
of messages over these services are probably not regulated or re-
stricted. Moreover, totally private systems are rapidly being devel-
oped by private companies for their own use. It is not uncommon
for businesses now not to use the local telephone comapny in some
instances the long distance companies in the creation of voice and
data networks. Since these networks are private they are not cov-
ered by existing Federal law. In addition, data is transmitted over
tradional telephone services as well as by these services. Since
data, unlike the human voice, cannot be aurally intercepted, it is
also largely unregulated and unrestricted under present law.
Today, we have large-scale electronic mail operations, cellular
and cordless telephones, paging devices, miniaturized transmitters
for radio surveillance, and a dazzling array of digitized information
networks which were little more than concepts two decades ago.
Unfortunately, the same technologies that hold such promise for
the future also enhance the risk that our communications will be
intercepted by either private parties or the government.
In 1984 the Federal government engaged in more telephone sur-
veillance and wiretapping than in any year since 1973.8 Moreover,
according to a recent study by the Office of Technology Assess-
ment, Federal agencies are planning to use or already use radio
scanners (20 agencies), cellular telephone interception (6 agencies),
tracking devices (15 agencies), pen registers (14 agencies), and elec-
tronic mail interceptions (6 agencies).9
This increased use of a variety of electronic surveillance devices
alone is not cause for alarm. There are instances when a particular
electronic surveillance technique is justified in a criminal investi-
gation. Congress has recognized this by permitting-under careful-
ly limited circumstance under the Wiretap Act-the tapping of
telephone calls or the bugging of rooms. However, despite efforts by
both Congress 10 and the courts,1' legal protection against the un-
reasonable use of newer surveillance techniques has not kept pace
with technology.
The statutory deficiency in Title III with respect to non-voice
communications has been criticized by commentators, Congression-
al experts, and most recently by both the General Accounting
Office and the Office of Technology Assessment.12 The danger is
eloquently pointed out by Professor Richard Posner (now United
States Circuit Court Judge):
e Administrative Office of the United States Courts, Report on Application for Orders Author-
izing or Approving the Interception of Wire or Oral Communications (Wiretap Report) for the
Period Januarryy 1, 1984 to December 81, 1984.
9 Office of Technology Assessment, U.S. Cong., ELECTRONIC SueVZILLANCE AND CIVIL Lmnrr se
(1985), hereinafter "OTA Report."
10 &g., The Wiretap Act, supra note 3; Foreign Intelligence Surveillance Act, 50 U.S.C. 101 et
sei. Right to Financial Privacy Act, 12 U.S.C. 3401 et seg.
' E.g., United States v. Torres, 751 F.2d 875 (7th Cir. 1984), cert. den'd, -U.S.-, 105 S.Ct.
1853 (1985). (court has authority to issue warrant permitting video surveillance); Katz v. United
States, 389 U.S., 347 (1967), (Fourth Amendment applies to government wiretapping of telephone
conversation); Berger v. New York, 388 U.S. 41 (1967) (Fourth Amendment applies to electronic
eavesdropping on oral conversation).
12 See generally, Electronic Communications Privacy Act of 1985.? Hearings on H.R. 8978 Before
the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the House Comm. on the
Judiciary, 99th Cong., 1st and 2d Soso., hereinafter "House H ' See. also Burnham, Lx.
perts Study Ej ton Law of Latest Electronic Services, N.Y. Times, . 18, 1985 (reporting on
study by ACLU Project on Privacy and Technology).
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In the absence of market discipline, there is no presump-
tion that the government will strike an appropriate bal-
ance between disclosure and confidentiality. And the enor-
mous power of the government makes the potential conse-
quences of its snooping far more ominous than those of
a private individual or firm.' 3
This legal uncertainty poses potential problems in a number of
areas. First, it may unnecessarily discourage potential customers
form using such systems, and encourage unauthorized users to
obtain access to communications to which they are not party.14
Lack of clear standards may also expose law enforcement officers
to liability 15 and endanger the admissibility of evidence.' 6
But most important, if Congress does not act to protect the priva-
cy of our citizens, we may see the gradual erosion of a precious
right." Privacy cannot be left to depend solely on physical protec-
tion, or it will gradually erode as technology advances.18 Addition-
al legal protection is necessary to ensure the continued vitality of
the Fourth Amendment.' 9
The Committee believes the bill represents a fair balance be-
tween the privacy expectations of citizens and the legitimate needs
of law enforcement.
When Congress passed the Wiretap Act in 1968, most telephone
calls were transmitted as they always had been-by wire. Other
technologies, however, were already on the horizon, an inevitability
implicitly recognized by Congress in protecting telephone calls car-
ried "in whole or in part" over wire. 18 U.S.C. 2510. Today, only a
minority of telephone calls are made through wire alone; the ma-
jority combine wire with some form of radio technology, usually
microwave.
a. Microwave
Microwave consists of extremely high frequency radio waves
transmitted point-to-point on line-of-sight paths between antennas
located on towers or building tops (in terrestrial microwave sys-
tems) and between satellites and earth station "dish" antennas (in
satellite-based systems). Like most radio transmissions, the micro-
wave portion of a telephone call is vulnerable to interception.20
I' Posner, Privacy in the Supreme Court, 1979 Sup. Ct. Rev. 173, 176 (1979).
14 House hearings, supra note 12 (testimony of P. Walker, P. Quigley, P. Nugent, J. Stanton
et al.)
'5 See Malley v. Briggs, -U.S.- (84-1586, Mar. 5, 1986), 54 U.S.L.W. 4243 (Mar. 5, 1986).
1e 18 U.S.C. 2515.
14 According to a recent poll, 77 percent of Americans are concerned about technology's
threats to their personal privacy. Louis Harris & Associates, The Road After 1984, Southern
New England Telephone (1984).
18 See Dow Chemical v. United States, -- US. - (May 19, 1984) (Powell, J. dissenting).
19 For recent explorations on the capacity of Congress to interpret the Constitution, see
Mikva, How Well Does Congress Support and Defend the Constitutions 61 N.C. L. Rev. 587
(1983); Fisher, Constitutional Interpretation by Members of Congress, 63 N.C. L. Rev. 707 (1985).
2?T. Harrington and B. Cooper, THE HIDDEN SIGNALS ON SATELLITE TV (1984).
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The equipment to complete an interception can be expensive, and
the task difficult; however, the practice is sufficiently well known
as to be an option for satellite dish owners and for foreign intelli-
gence agencies. Despite the availability of the technical means of
interception of microwave transmissions, such transmissions are
protected by the plain language of Title III.
b. Cellular Telephone
In 1981 the Federal Communications Commission approved the
use of cellular telephone services.21 This technology uses both
radio transmissions and wire to make "portable" telephone service
available in a car, a briefcase, or in rural areas not reached by tele-
phone wire.
In a cellular radiotelephone system, large service areas are divid-
ed into honeycomb-shaped segments or "cells"-each of which is
equipped with a low-power transmitter or base station which can
receive and radiate messages within its parameters. When a caller
dials a number on a cellular telephone, a transceiver sends signals
over the air on a radio frequency to a cell site. From there the
signal travels over phone lines or a microwave to a computerized
mobile telephone switching office ("MTSO") or station. The MTSO
automatically and inaudibly switches the conversation from one
base station and one frequency to another as the portable tele-
phone, typically in a motor vehicle, moves from cell to cell.22
Cellular technology, because it is more complex, is more difficult
to intercept than traditional mobile telephones; it is, however,
more accessible than microwave transmissions. Cellular telephone
calls can be intercepted by either sophisticated scanners designed
for that purpose, or by regular radio scanners modified to intercept
cellular calls.23
The availability of this technology poses a troubling conflict be-
tween the technology of surveillance and new techniques of com-
munication using radio. Interception of cellular calls is illegal
under current federal law.24 At least one state has passed a law
specifically aimed at protecting cellular calls.25 Notwithstanding
83 Cellular Communications Systems Decisions, 86 FCC 2d 469 (1981).
"House Hearings, supra note 12, testimony of P. Quigley, J. Stanton. Cellular technology is
more advanced than ordinary mobile telephones. Cell-to-cell "hand-off" of calls maximizes chan-
nel capacity, allowing use by many more subscribers in a specific area. In addition, cellular tele-
phone calls are fully automated and do not require the services of a mobile operator.
"Rouse Hearings supra note 12 (testimony of R. Colgan), see Ad, LANs MOBILE PRODUCT
NEws. Jan. 15, 1985 (for Regency scanners). When cellular service began it was "remarkably
private". Huff, Cellular Phone TECHNOI OGY REVIEW, (Nov./Dec. 1983) at 53, 58. This was so be-
cause unlike older radio telephones there is usually no operator required to place the calls, and
there is no?p~arty line function. Greathouse, Privacy and the Cellular Phone, PERSONAL COMMU-
NICATIONS MAGAZINE. In addition, because cellular was assigned to new frequencies (between 825
Mhz and 890 Mhz), scanners were not initially available to easily enable scanning of cellular
calls by the general public. Id. More recently, such scanners have been made available for sale.
Hanson, Legislating Cellular Privacy: An Idea That Won't Work, PERSONAL COMMUNICATIONS
MAGAZINE; Corn, The vacy Issue, CELLULAR RESOUaoas, 66, 71 (Sept/Oct 1984); Corn, The Pri-
vacy Issue Updated, CELLULAR RESOURCES 46-49 (Nov. 1985).
'* See, HousE HEARINGS, supra n. 12 (testimony of U.S. Dept. of Just.) (interception of cellular
to landline calls illegal because "in whole or in part by wire." 18 U.S.C. 2510); cf United States
v. Hall, 488 F.2d 193 (9th Cir. 1973) (same for ordinary mobile telephones); 47 U.S.C. 705 (inter-
ception and divulgence or use of communications not broadcast for general public illegal). Per-
haps because of the relative newness of the technology, there are no cases directly addressing
the issue of cellular interceptions.
85 Cal. Penal Code ??630 et seq.
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these legal proscriptions there remains a real-life conflict as inter-
ception technology catches up with communications develop-
ment.26 The resolution of these competing interests was carefully
considered by the Committee.
c. Cordless Telephones
Cordless telephones are another new telephone technology pre-
senting a conflict between communication and interception. A cord-
less telephone consists of a handset and a base unit wired to a
landline and a household/business electrical current. A communi-
cation is transmitted from the handset to the base unit by AM or
FM radio signals. From the base unit the communication is trans-
mitted over wire, the same as a regular telephone call. The radio
portions of these telephone calls can be intercepted with relative
ease using standard AM radios.27
The legality of intercepting cordless telephone calls has been
fully litigated in only two states. The Supreme Courts of Kansas
and Rhode Island, both construing federal law, have held that evi-
dence obtained by an interception of a cordless telephone call by
law enforcement officials without a warrant can be admitted at
trial.28 In each case the court was convinced that the radio portion
of a conversation was entitled to no legal protection against inter-
ception.29 This approach sharply conflicts with the major relevant
federal case. 30
These courts were not required, however, to decide the rights of
the other party to the conversations in these cases, persons using
conventional landline telephones. While it it possible to argue that
a person using a cordless phone knows or has reason to know that
the call can be easily overheard, that argument does not apply to
the other party to the conversation.
When Congress enacted the Wiretap Act it specifically excluded
the transmission of data from protection against private and gov-
ernmental interceptions. 31 In the intervening years, data transmis-
sion and computer systems have become a pervasive part of the
business and home environments.
Computer and telephone technologies have merged; the resulting
new communication techniques utilize computer terminals and
26 House Hearings, supra note 12 (testimony of R. Colgan). The wide availability of this tech-
nology and its expanded use of up to 7 million such phones by 1990, poem additional challenges
to law makers.
87 See State v. DeLaurier, 488 A.2d 688 (R.I. 1985); State v. Howard, 235 Kan. 236, 679 P.2d 297
(1984).
as 488 A.2d 688; 235 Kan. 236, 679 P.2d 297.
so 488 A.2d 688; 235 Kan. 236, 679 P.2d 297. The state courts concluded that radio communica-
tions are neither "wire" nor protected "oral communications". 488 A.2d at 693; 235 Kan. at 247
They reasoned that to require the police to obtain a warrant to listen to an AM radio would be
"absurd". 488 A.2d at 694. They also reasoned that such communications were not protected
against interception because there is no "reasonable expectation of privacy". State v. DeLaurier,
488 A.2d at 694. State v. Howard, 235 Kan. 236, 676 P.2d 297 (1984). The DeLaurier court also
found that an AM radio is not a "device" within the meaning of 18 U.S.C. 2510(5), therefore no
violation of federal law occurred. 488 A.2d at 694.
30 United States v. Hall, 488 F.2d 193 (9th Cir. 1973) (interception of radio portion of mobile
telephone call violates Wiretap Act since communication "in whole or in part by wire." 18
U.S.C. 2510.
3 1 1968 Senate Report, supra note 7, at 90.
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video display screens, and frequently transmit data over telephone
lines.
The array of services include electronic bulletin boards, electron-
ic data bases, videotext services, and remote computing. Some of
these new services permit an individual to use a keyboard and tele-
phone to transmit electronic messages and data and to receive
interactive services featuring banking and other financial services,
shopping, news, messages, and education. Many of these services
also record the nature of the transactions engaged in by the user.
Thus, the new technologies represent both an explosion in commu-
nication opportunities as well as surveillance possibilities.3 2
One of the most popular new computer services is electronic
mail, a service which combines features of the telephone and regu-
lar first class mail. Electronic mail can include telex, teletex, fac-
simile, voice mail and mixed systems that electronically transmit
and store messages. Many e-mail users have found it a useful sub-
stitute for telephone calls, while others utilize it instead of the gov-
ernment postal service.
Electronic mail differs from regular mail in three ways. First, e-
mail is provided by private parties and thus not subject to govern-
mental control or regulation under the postal laws.33 Second, it is
interactive in nature and can involve virtually instantaneous "con-
versations" more like a telephone call than mail. Finally, e-mail is
different from regular mail because the electronic communication
provider as part of the service may technically have access to the
contents of the message and may retain copies of transmissions. 34
Any discussion of the application of current law governing inter-
ception of e-mail or the use of e-mail surveillance begins with the
Fourth Amendment, which protects our reasonable expectation of
privacy. There are no reported cases governing the acquisition of e-
mail by the government, so an application of the Fourth Amend-
ment to the interception of e-mail is speculative. It appears likely,
however, that the courts would find that the parties to an e-mail
transmission have a "reasonable expectation of privacy" and that a
warrant of some kind is required.
As for statutory protection, while there may be some limits on
government access to e-mail messages from an e-mail provider,
there do not appear to be any federal statutes which directly ad-
dress this issue.35 Title III would not apply, since it is limited to
the "aural acquisition" of the contents of a communication, and e-
mail usually does not involve the transmission of audible sound.36
The Communications Act might have some limited application, ex-
cepting law enforcement officials.37 The Foreign Intelligence Sur-
32 OTA Report, supra note 9, at 48.
95 See 18 U.S.C. 1701 et seq. These regulations appear to place restrictions on government
access to government operated electronic mail systems. Although the United States Postal Serv-
ice operated an electronic mail system for a short period, that service is no longer in operation.
'4 House Hearings, supra note 11 (testimony of P. Walker). E-mail systems are designed to
provide access to contents and copies of m es in case of system failure. Messages are elec-
tronically generated and not normally accessed y the e-mail provider.
95 The Right to Financial Privacy Act may apply if certain categories of records are involved.
12 U.S.C. 3401 et seq.
as See 18 U.S.C. 2510; United States v. New York Telephone Company, 434 U.S. 159, 168
(1977).
94 47 U.S.C. 705 (which bars the interception and disclosure or use of certain communications)
applies only to radio or wire communications. Some courts have held that this statute does not
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veillance Act, however, could be read to require federal law en-
forcement officials to obtain a court order before engaging in "elec-
tronic surveillance" that acquires the contents of e-mail communi-
cations.38 These criminal prohibitions do not apply to private per-
sons.
The use of remote computing services has also dramatically in-
creased.39 Many persons use the facilities of these services to proc-
ess and store their own data.
A subscriber or customer to a remote computing service trans-
mits records to a third party, a service provider, for the purpose of
computer processing. This processing can be done with the custom-
er or subscriber using the facilities of the remote computing service
in essentially a time-sharing arrangement, or it can be accom-
plished by the service provider on the basis of information supplied
by the subscriber or customer.
As with electronic mail, remote computing services are still rela-
tively new, and there is no case law directly on point. Proceeding
by analogy, under current law a subscriber or customer probably
has very limited rights to assert in connection with the disclosure
of records held or maintained by remote computing services.40 It is
likely, however, that contents of customer data enjoy a higher
degree of Fourth Amendment protection.41
An increasingly important adjunct to the telecommunications
systems is the paging system. Radio paging is essentially a one-way
message service. Recent estimates indicate that there are over 2.5
million pagers in operation; these numbers are expected to double
within five years.42
There are three basic types of paging devices: tone-only, digital,
and voice.43 In a tone-only pager system an outside party places a
telephone call to the paging service which in turn sends a signal to
the user indicating that the user has a telephone call. The user
must then call back a specific phone number (often an answering
service). The digital or display pager permits the user to receive a
govern the activities of law enforcement officials. United States v. Hall, 488 F.2d 193, 197 (9th
Cir. 1973); United States v. Chrisman, 375 F. Supp. 1354 (N.D. Cal. 1974).
's 50 U.S.C. 1809(a) provides that it is a felony for a person to "engage in electronic surveil-
lance under color of law except as authorized by statute." 50 U.S.C. 1801(0 includes within the
definition of "electronic surveillance" "the acquisition ... of the contents of any wire or radio
communication ..." 50 U.S.C. 1801(f).
99 House Hearings, supra note 12 (testimony of P. Nugent).
40 Cf. United States v. Miller, 425 U.S. 435 (1976) (no standing under Fourth Amendment for
customer to object to bank disclosure of customer records). Congress reversed the result reached
in Miller by enacting the Right to Financial Privacy Act, 12 U.S C. 3401 et. seq.
41 Miller, note 39 supra, might be distinguished when contents rather than records are in-
volved. Unlike records of the bank's (or remote computing service's) records, contents are analo-
gous to items stored, under the customer's control, in a safety deposit box.
42 According, to one consultant for Authur D. Little, the number of pagers in service could
grow to 10 million (including 6 millio
n display pagers) by 1990. Telocator Members Told That
ATOR
wing to Prosper in the Future TxI oc uLi E IN, September, 1984.
See generally, Note, Does A Part Eoual the Whole: Is the Interception of Paging Devices
Communications Governed by Title III, 7 Gao. MASON U.L. Rsv. 234 (1984). Newer two-way
paging devices are apparently on the horizon. Posa, Radio Pagers Expand Horizons, HIGH TscH-
xotoGY (Marc h, 1983).
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digital or alphanumeric message on a display screen. A voice pager
permits a person who wishes to communicate with the user to
leave a recorded message which is then transmitted to the user.
The user actually hears the voice message.
The only reported case on this technology, Dorsey v. State,44 in-
volves a voice pager. In the Dorsey case, the court upheld the use of
a scanner by the police to intercept voice messages transmitted
over a paging system to an alleged drug dealer. The court held that
these messages are neither wire nor oral communications and,
therefore, such interceptions are lawful.45
According to the United States Department of Justice, however,
the three types of paging devices require different levels of statuto-
ry protection .46 The Department reasons that "tone only" pagers
carry no reasonable expectation of privacy and therefore no court
order is required for a government official to intercept or monitor
such signals. The interception of "display pagers" is, according to
the Department of Justice, also not within the ambit of Title III;
the Department concedes, however, that because, use of such de-
vices encompasses a reasonable expectation of privacy, governmen-
tal interception of messages over such a system requires use of a
search warrant under the Fourth Amendment.47 Finally, the De-
partment of Justice concludes that a "voice pager" is simply the
continuation of an original wire communication, and therefore a
Title III court order is required.48
PEN REGISTERS
The privacy of telephone customers can also be affected by the
use of pen registers or other devices which record the numbers
dialed from a telephone.49 Pen registers can be used by telephone
companies for internal business purposes 5 ? as well as by the gov-
ernment for law enforcement purposes.51 It is this governmental
use which has posed the most difficult questions for Congress and
the courts.52
44 402 So. 2d 1178 (Fla. 1981). In Dorsey, the Supreme Court of Florida interpreted a state stat-
ute in pans lateria with Federal law. 402 So. 2d at 1183.
45 Id The Dorsey court specifically rejected the reasoning in United States v. Hall, 488 F.2d
193 (9th Cir. 1973).
46 U.S. Department of Justice, Office of Legal Counsel (Theodore B. Olson), Memorandum for
John A. Mintz, Assistant Director-Legal Counsel, Federal Bureau of Investigation, January 5,
1984 (OISoN MEMO).
47 OISON Mello, Supra note 40.
48 Id. Compare, Dorsey v. State, 402 So. 2d 1178 (Fla. 1981).
49.gee United States v. N.Y. Tel. Co., 434 U.S. 159, 161, 167 (1977); United States v. Giordano,
416 U.S. 505, 549 n. 1 (1974) (Powell, J., concurring in part and dissenting in part).
bO Telephone companies can use pen registers to verify long distance billing information. Fish-
man, Pen Registers and Privacy: Risks, Expectations and the Nullification of Congressional
Intent, 29 CATHOLIC L. Rev. 557, 558 (1980). Telephone companies can use pen registers to detect
the use of illegal devices, such as "blue boxes." United States v. N.Y. Tel. Co. 434 U.S. 159, 174-
75 (1977); See generally Note, The Legal Constraints Upon the Use of the Pen Register as a Law
Enforcement Tool 60 CORNECI. L. Rev. 1028, 1029 (1975). Additionally, a pen register could be
placed on the phone of a person suspected of placing harrassing or obscene calls. 47 U.S.C. 223.
See generally Claerout, The Pen Register, 20 DRAKE L. Rev. 108, 109-110 (1970).
61 Pen registers are often used to acquire ' robable cause" evidence necessary to obtain a
search warrant or a Title III wiretap order. House HEARINGS, supra note 12 (testimony of J.
Knapp). Remarks, Fred Hess, Criminal Division, United States Department of Justice, Office of
Technology Assessment Workshop, May 17, 1985. See also Fishman, WIRETAPPING AND EAvEs-
DROPPING 46 (1978).
62 Slightly different issues are presented when law enforcement officials utilize devices which
trap or trace incoming phone calls. Prior to the passage of Title III courts had upheld the use of
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The United States Supreme Court has on two occasions decided
cases involving questions about the legality of installation and use
of pen registers. United States v. N.Y. Tel. Co.53 presented the
question whether an ordinary search warrant was sufficient to au-
thorize government use of a pen register. The Court held that the
existing federal wiretap law was not implicated by the use of a pen
register,54 and that federal district judges have authority to issue
warrants directing telephone company cooperation with the instal-
lation of pen registers.55
In Smith v. Maryland 56 the Supreme Court found that law en-
forcement officials need not obtain a search warrant before secur-
ing telephone company cooperation in the installation of a pen reg-
ister.5 7 The Court reasoned that because the person who used the
telephone voluntarily disclosed the numbers dialed there was "no
reasonable expectation of privacy," eliminating Fourth Amend-
ment protection .58
The current practice of federal law enforcement agencies is to
obtain a court order, under Rule 57 of the Federal Rules of Crimi-
nal Procedures,59 before using a pen register.80 This practice con-
forms with the Foreign Intelligence Surveillance Act,81 which cre-
ated a requirement for a court order even in a domestic criminal
case.62 Outside the limited context of foreign intelligence, Congress
has specified no standard for obtaining a pen register court order.
Thus, current case law and statutes leave federal law enforcement
officials with virtually unchecked discretion to obtain information
through the use of pen registers. All the government needs to do is
make an application to a federal court; no independent judicial
review of the facts is required.
Electronic communication technologies have become so pervasive
that extensive records are maintained which reveal a great deal
about how individuals interact with each other. For decades, tele-
phone companies have maintained telephone toll records and tele-
such devices because of the consent of one of the parties to the communication. Rathun v.
United States, 355 U.S. 107 (1957). Enactment of Title III has not affected this result. Carr, THE
LAW OF ELECTRONIC SURVEILLANCE, ? 3.03[3] at 84 (1977) and at 23 (1985 Supp.).
8s 434 U.S. 159 (1977).
54 Id. at 165-68.
a5 Id. at 171-78.
66 442 U.S. 735 (1979).
57 Id. at 746.
se Id. at 745.
se The Rule specifies: In all cases not provided for by rule, the district judges and magistrates
may regulate their practice in any manner not inconsistent with these rules or those of the dis-
trict in which they act. FED. R. CRIM. PROC. 57.
6O The Subcommittee on Courts, Civil Liberties and the Administration of Justice of the Com-
mittee on the Judiciary, United States House of Representatives, conducted a survey of all 94
federal district court Chief Judges to ascertain how frequently pen registers are used. The Sub-
committee received 60 responses which indicated that for those courts 2,199 pen register orders
were obtained during the first 9 months of 1985.
61 Public Law 95-511; 50 U.S.C. 1801 et seq.
62 50 U.S.C. 1809 creates criminal liability for federal officials who engage in electronic sur-
veillance, unless such official has either a search warrent or a court order from a court of com-
petent jurisdiction. 50 U.S.C. 1801(f) defines "electronic surveillance" to include the acquisition
of the "contents" of wire communications, and further defines "contents" to "include any infor-
mation concerning the identity of the parties to such communication or the existence, substance,
purpont or meaning of that communication." Thus, the Foreign Intelligence Surveillance Act
covers the use of pen registers. H.R. Rep. No. 1293; 95th Cong. 2d Sess. 67 (1978).
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graph companies have kept copies of telegrams. There is a body of
law which addresses the question of government access to this
data.63 Similarly there are legal rules which limit the access to in-
formation about postal correspondence.64
The newer technologies such as electronic mail and remote com-
puting services maintain a type of records which do not neatly fit
within the legal categories which exist for older technologies. This
legal uncertainty has caused concern within the business communi-
ty for several reasons. First, to the extent that potential customers
have less protection when they use an electronic medium than
with paper, there may be a disincentive to use an electronic serv-
ice.65 Second, if persons with records have a choice of maintaining
them "in house" or with a third party, they may be less inclined to
go outside if such a move deprives them of legal rights (such as
notice and an opportunity to contest government access). Any
effort to resolve this legal uncertainty should first proceed from a
complete understanding of the existing law with respect to more
traditional technologies.
Telephone toll records
As a general matter telephone companies maintain a record of
calls placed from a telephone for billing purposes. These business
records are primarily used by the telephone company for its own
purposes. At the federal level the government can legally obtain
access to such records based on a grand jury or trial subpoena or
through the use of an administrative summons authorizing a spe-
cific federal agency to obtain records.66 Such government access is
usually in connection with an ongoing criminal or civil investiga-
tion.67 The most frequent use of this investigative technique is by
the Department of Justice. 6 s Requests for telephone toll records
would appear to easily exceed 100,000 per year.69
At the state level, some states have placed limits on access to
telephone toll records by state and local law enforcement. Colora-
es See generally. Reporters Committee v. AT&T 593 F.2d 1030 (D.C. Cir. 1979) cert. denied, 440
N.S. 949 (1979) (no violation of the Fourth Amendment to release toll call records without notice
to the customer); see also Smith v. Maryland, 442 U.S. 735 (1979) (use of a "pen register is per-
missible under Fourth Amendment because a subscriber has no reasonable expectation of priva-
cy in numbers dialed.)
64 39 U.S.C. 3263(d) (requires search warrant to open first class mail); United States v. Van
Leeuwen, 397 U.S. 249 (1970) (first class mail may only be opened pursuant to warrant under
Fourth Amendment); Ex parte Jackson, 96 U.S. 727, 733 (1878) ("whilst in the mail ... [letters]
.. can only be opened and examined under ... warrant").
The use of mail covers, which record the names and addresses of senders and recipients of
mail, have different legal standards applied to their use. Because investigative use of this infor-
mation does not include access to the contents of the letter there has been a lesser degree of
Fourth Amendment concern. See note 2, infra.
06 See House Hearings, supra note 12, testimony of M. Nugent.
eaporters Comm. v. AT&T, supra note 61.
es jd
The Committee conducted a survey of various telephone companies to ascertain the fre-
quency with which telephone toll records are sought. For approximately six states (Maryland,
Washington, D.C., Colorado, Michigan, Illinois andmost of California) nearly 10,000 subpoenas:
were issued by the Department of Justice for a oneayear time period. NYNEXreported that for
New York State alone, subpoenas-wee received -relatiz ' to between 35,000 and 91,000 tele-
phones per year-over the past five-
years--In Reporters Comm. v. AT&T, supra, note 61, at 1037, it was, estimated -that the number of
requests for telephone toll records was at a rate of between two and three thousand each month.
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do,7 ? California,7 1 Pennsylvania,' 2 and New Jersey,' 3 have all re-
quired that a court order be obtained before access to telephone-
created transactional information can be granted. The majority
view, however, appears to conform with federal law, that is to
permit access based on any form of legal process .7 4
Telegrams
The applicable federal law would appear to permit governmental
access to copies of telegrams based on the use of a subpoena.75
First class mail searches and mail covers
One of the most frequently used forms of private communication
is the government operated first class mail system. Therefore, an
assessment of the limitations which have been placed on govern-
mental access to the contents of and/or transactional information
concerning first class mail correspondence is relevant to any deter-
mination about what legal rights should exist with respect to
access by the government to newer forms of communications.
Under current Federal law, a search warrant based on probable
cause is required before the government can obtain the contents of
a first class letter.76
A lower standard is used for government access to mail covers,
an investigative technique whereby the postal service records the
names and addresses of persons who write to an investigative
target or to whom such person writes. While the United States
Postal Service does place limits (by regulation) on the use of this
technique, courts have thus far declined to find a Fourth Amend-
ment interest implicated by the practice.77
STATEMENT
Legislation amending the Wiretap Act to include new technol-
ogies, H.R. 214, was first introduced in the 95th Congress by Con-
gressman Robert W. Kastenmeier, Chairman of the Subcommittee
on Courts, Civil Liberties and the Administration of Justice of the
70 People v. Sporleder, 666 p.2d 135 (Sup. Ct. Colo. 1983), Charnes v. diGiacomo, 612 F2d 1717
(Sup. Ct. Colo. 1980), People v. Corr, 682 P.2d 20 (Sup. Ct. Colo. 1984).
71 People v. Blair, 25 Cal. 3d 640, 602 P.2d 738 (Calif. Sup. Ct. 1979); People v. McKunes, 124
Cal. Rep. 126 (Calif. Ct. App. 1975).
72 Commonwealth v. DeJohn, 986 Pa. 32, 403 A.2d 1283 (1979), Cert. denied, 444 U.S. 704
(1980).
76 State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); Note, 13 Seton Hall L. Rev. 803 (1983).
74 In re Order for Indiana Bell Telephone to Disclose Records 409 N.E. 2d 1089 (Sup. Ct. Ind.
1980); State v. Fredette, 411 A.2d 65 (Sup. Ct. Me. 1979); Hastetter v. Behan, 639 p.2d 10 (Sup. Ct.
Montana. 1982); People v. DiRaffaele, 55 N.Y. 2d. 234, 433 N.E. 513 (Ct App. 1981); Fitzgerald v.
State, 599 p.2d 572, 577 (Sup. Ct. Wyo. 1979).
76 Wheeler v. United States, 226 U.S. 478 (1913) (a subpoena requiring production of telegrams
upheld against a Fourth Amendment challenge); see also Brown v. United States, 276 U.S. 134
(1928) (upholding finding of criminal contempt against person who refused to comply with sub-
poena of copies of telegrams).
T 6 See note 62, supra.
77 39 C.F.R. 233.2; United States v. Krauth, 769 F.2d 473 (8th Cir. 1985) United States v.
Gering, 716 F.2d 615 (9th Cir. 1983); United States v. Depoli, 628 F.2d 779 (1980); United States v.
Huie, 593 F.2d 14 (5th Cir. 1979); United States v. Choate, 576 F.2d 165 (1978); and 619 F.2d 11
(9th Cir. 1980); Vreeden v. David, 718 F.2d 343 (10th Cir. 1983); see also Paton v. LaPrade, 469
F.Supp. 773 (D.N.J. 1978). See generally Burnham, Keeping an Eye on Suspect Mail, New York
Times, March 1, 1986, pg. B-10.
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House Committee on the Judiciary. That legislation grew out of
widespread general concern with government surveillance.78
Although H.R. 214 was not enacted, Congressman Kastenmeier
revisited the subject in general oversight hearings held in the 98th
Congress entitled "1984: Civil Liberties and the National Security
State." 79
As a result of those hearings, a bill, H.R. 6343, was introduced in
the 98th Congress by Congressman Kastenmeier that served as a
model for legislation in the 99th Congress.
During the 99th Congress, the Committee, acting through the
subcommittee on Courts, Civil Liberties, and the Administration of
Justice-held four days of hearings on H.R. 3378 the bill on which
H.R. 4952 is based, introduced by Chairman Kastenmeier and
Cong. Carlos J. Moorhead, ranking minority Member of the Sub-
committee. An identical bill, S. 1667, was introduced in the Senate
by Sen. Patrick J. Leahy, ranking minority Member of the Subcom-
mittee on Patents, Copyrights and Trademarks of the Senate Com-
mittee on the Judiciary, and Sen. Charles McC. Mathias, Chairman
of the Subcommittee.
On September 26, 1985, the Subcommittee heard from the follow-
ing witnesses: Senator Patrick Leahy (United States Senator from
Vermont); Philip M. Walker (general regulatory counsel, GTE Te-
lenet Inc., on behalf of the Electronic Mail Association); and Philip
J. Quigley (president and chief executive officer, Pactel Mobile
Companies, on behalf of the Cellular Telecommunications Industry
Association).
On October 24, 1985, the subcommittee heard from Fred W.
Weingarten (program manager, communication and technologies
program, Office of Technology Assessment, United States Con-
gress); P. Michael Nugent (government affairs counsel, Electronic
Data Systems Corporation, on behalf of ADAPSO, the computer
software and services industry association); and John Stanton (ex-
ecutive vice president, McCaw Communications Companies, Inc., on
behalf of Telocator Network of America).
On January 30, 1986, the subcommittee took testimony from
Neal Amick (division manager for corporate security, American
Telephone and Telegraph Company); John W. Kelly Jr. (attorney,
Southwestern Bell Telephone Company); Perry Williams (secretary,
American Radio Relay League, Inc., a group representing ham
radio operators, presenting the statement of Dr. Larry E. Price,
president of the group); George A. Kuhnreich, (vice president for
corporate planning and governmental affairs, Tandy Corporation);
and Richard T. Colgan (executive secretary, Association of North
American Radio Clubs).
On March 5, 1986, the final day of hearings, the witnesses were
James I. K. Knapp (Deputy Assistant Attorney General, Criminal
Division, United States Department of Justice); and Clifford F.
Fishman (Professor of Law, Columbus School of Law, Catholic Uni-
versity of America, and author of Wiretapping and Eavesdropping.
78 See generally Surveillance: Hearings on the Matter of Wiretappi Electronic Eavesdrop
ping, and Other Surveillance Before the Subcommittee on Courts, Civil Liberties and the Admin-
istration of Justice of the House Comm. on the Judiciary, 94th Cong., let Sees.
791984: Civil Liberties and the National Security State: Hearings Before the Subcommittee on
Courts, Civil Liberties and the Administration of Justice, 98th Cong., 1st and 2d Sees. 133-258.
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The Subcommittee took note that the Senate held a hearing on
S. 1667, on November 13, 1985.
After completion of the hearing process in the 99th Congress,
H.R. 3378, the bill on which H.R. 4952 is based, went to subcommit-
tee mark-up on May 14, 1986. Two amendments, offered by Mr.
DeWine, were not accepted by the subcommittee. A quorum of
Members being present, the bill, as amended by Chairman Kasten-
meier by an amendment in the nature of a substitute, was passed
by a voice vote and reported in the form of a clean bill. H.R. 4952
was introduced by Mr. Kastenmeier on June 5, 1986, cosponsored
by 14 Members of the subcommittee and 10 other Members: Mr.
Moorhead, Mr. Brooks, Mr. Mazzoli, Mr. Synar, Mrs. Schroeder,
Mr. Frank, Mr. Morrison of Connecticut, Mr. Berman, Mr.
Bouncher, Mr. Hyde, Mr. Kindness, Mr. Swindall, Mr. Coble, Mr.
Edwards of California, Mr. Conyers, Mr. English, Mr. Matsui, Mr.
Bruce, Mr. Owens, Mr. Mitchell, Mr. Kostmayer, Mr. Nowak, and
Mr. Leland.
On June 10, 1986, the full Committee considered H.R. 4952 and,
after general debate, and without substantive amendment, ordered
the bill reported favorably by roll call vote, 34-0, a quorum of
Members being present.
SUPPORT FOR THE LEGISLATION
The organizations and individual corporations named below sup-
port the principles embodied in the legislation.
Organizations
Electronic Mail Association
ADAPSO (Computer software and services industry association)
Telocator Network of America
Cellular Telecommunications Industry Association (CTIA)
American Civil Liberties Union (ACLU)
National Association of Manufacturers (NAM)
U.S. Chamber of Commerce
National Association of Broadcasters (NAB)
National Cable Television Association (NCTA)
National Association of Business & Educational Radio (NABER)
American Radio Relay League (ham operators)
CBEMA (Computer and Business Equipment Manufacturers Asso-
ciation)
U.S. Telephone Association
Videotext Industry Association
Information Industry Association
Electronic Funds Transfer Association
Radio and Television News Directors Association
Association of American Railroads
Institute of Electrical and Electronics Engineers (IEEE)
Direct Marketing Association
Utilities Telecommunications Council
Associated Credit Bureaus, Inc.
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Corporations
AT&T
General Electric
IBM
GTE
ITT
MCI
CBS
Capital Cities/ABC, Inc.
National Broadcasting Co., Inc. (NBC)
Tandy Corporation (Radio Shack)
EDS, a subsidiary of General Motors Trintex
Equifax
TRW
Source Telecomputing Corporation
Chase Manhattan Bank
Motorola
Ameritech
Bell Atlantic
Bell South
Southwestern Bell
NYNEX
Pacific Telesis
US West
Associated Credit Services, Inc.
AGENCY VIEWS
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AND INTERGOVERNMENTAL AFFAIRS,
Washington, DC, June 6, 1986.
Hon. PETER RODINO, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC,
DEAR MR. CHAIRMAN: This letter is to advise you of the Depart-
ment of Justice's position with regard to H.R. 4952, the Electronic
Communications Privacy Act of 1986, which we understand is
scheduled for markup on June 10 by the full House Judiciary Com-
mittee. This bill makes important changes to the existing wiretap
statutes and fills gaps in current laws by creating provisions to reg-
ulate interception of and access to new forms of electronic commu-
nication such as data transmissions.
The Department of Justice has worked intensively on this legis-
lation over the past several weeks with the members and staff of
the Subcommittee on Courts, Civil Liberties and the Administra-
tion of Justice, as well as with interested representatives of indus-
try and civil liberties groups. While initial versions of this legisla-
tion did not in our view adequately safeguard legitimate and vital
law enforcement and national security needs for access to commu-
nications, as a result of the negotiations that have occurred the bill
has been substantially modified to accommodate our concerns. In
our judgment the bill as presently drafted fairly balances the inter-
ests of privacy and law enforcement and its enactment would rep-
resent a major accomplishment of the 99th Congress, holding forth
the promise of significant benefits for business, privacy, and law
enforcement alike.
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Accordingly, the Department of Justice strongly supports the en-
actment of H.R. 4952.
Sincerely,
JOHN R. BOLTON,
Assistant Attorney General.
SECTION-BY-SECTION ANALYSIS
Section 1 provides the short title for the bill, the Electronic Com-
munications Privacy Act of 1986.
TITLE I-INTERCEPTION OF COMMUNICATIONS AND RELATED MATTERS
Section 101 contains five subsections. Subsection (a) contains the
definitions, and amendments to definitions, used in this chapter
and in the new chapter 121 of title 18.
Subsection (01) contains three subparagraphs. Subsection
(aX1XA) amends the definition of "wire communication" to include
aural transfers. The term "aural transfer" is defined in section
2510 (18) of this title. The term "aural transfer" means a transfer
containing the human voice at any point between and including
the point of origin and point of interception. Thus, the amended
definition is intended to encompass existing telephone services.80
Digitized voice communications are included to the extent that the
communication originates with human voice. As a result of this
change, a company whose activities affect interstate commerce and
which installs its own private telephone or electronic communica-
tion system would have that system covered by the statute.
By amending the definition of "wire communication" in subsec-
tion (a)(1X8) to include communications utilizing wires, cables, or
other like connections within a switching office, the Committee in-
tends that "wire communication" be construed to include commu-
nications made over cellular systems (as defined in 47 C.F.R.
? 22.2),81 regardless of whether the communications are between
two cellular telephones or between a cellular telephone and a
"landline" telephone.
Existing law, which prohibits interception of wire communica-
tions or oral communications, was enacted prior to the develop-
ment of cellular telecommunications and does not provide adequate
privacy protection to conversations transmitted over a cellular
system. The Department of Justice has taken the position that,
under existing law, communications between a mobile radio tele-
phone and a landline telephone are wire communications, but that
conversations between two radio telephones and not carried in
whole or in part by regular telephone lines are neither wire com-
munications nor oral communications. Inasmuch as all cellular
communications (whether mobile-to-mobile or mobile-to-landline)
must pass through a mobile telephone switching office, the Com-
mittee bill will remedy this inadequacy and provide explicit priva-
cy protection to all communications utilizing cellular radio.
so The term "other like connection" as used in section 2510(1) includes fiber optic cable.
81 Cellular System. A high capacity land mobile system in which assigned spectrum is divided
into discrete channels which are assigned in groups to geographic cells covering a geographic
service area. The discrete channels are capable of being reused in different cells within the serv-
ice area.
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In the event that the evolution of cellular technology permits the
switching or transmission of mobile-to-mobile service (or mobile-to-
landline service) without the use of wire, cable, or other like con-
nection, the Committee intends that cellular communications be in-
cluded within the term "electronic communication". Because cellu-
lar communication is transmitted over a communication system
currently regarded by the FCC as a common carrier,82 the Commit-
tee also intends that such communication not be considered "read-
ily accessible to the general public" at any time subsequent to the
date of enactment, regardless of how a provider of cellular service
is denominated by any state or how the FCC may classify any such
provider in the future.
The Committee's intention of providing privacy protection to cel-
lular communications in any event is also reflected in the specific
inclusion in the legislation of penalties for the interception of such
communications.83
Part of the impetus to clarify the illegality of interception of cel-
lular communications has been provided by the advertisement of
scanning receivers (popularly known as `scanners") specifically
promoting eavesdropping on conversations transmitted over cellu-
lar systems. Apparently after the FCC allocated frequencies to cel-
lular radio some manufacturers of scanners added the capability to
stop at and receive signals transmitted on these frequencies. The
Committee finds this development troubling, and expects that the
future design and manufacture of scanners will take into account
the privacy protections accorded cellular telephony in this legisla-
tion.
Section 101(aXl) amends the definition of "wire communication"
to include "any aural transfer made in whole or in part through
the use of facilities for the transmission of communications by the
aid of wire, cable, or other like connection * * * furnished or oper-
ated by any person engaged in providing or operating such facili-
ties for the transmission of * * * communications affecting inter-
state or foreign commerce * * *." Similarly, section 101(aX5) defines
a new term electronic communication" to include "any transfer of
signs, signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part bey a * * * system that af-
fects interstate or foreign commerce * * *.'
By the inclusion of the element "affecting (affects) interstate or
foreign commerce" in these provisions the Committee does not
intend that the Act regulate activities conducted outside the terri-
torial United States. Thus, insofar as the Act regulates the "inter-
ception" of communications, for example, it, like the Omnibus
Crime Control and Safe Streets Act of 1968, regulates only those
"interceptions" conducted within the territorial United States. See
Stowe v. Decoy, 588 F.2d 336 (2d Cir. 1978), cert. denied, 442 U.S.
931 (1979), and cases cited therein. See also Berlin Democratic Club
v. Rumsfield, 410 F.Supp. 144, 157 (D.D.C. 1976), United States v.
Toscanino, 500 F.2d 267, 279-280 (2d Cir. 1974); Unites States v. Co-
troni, 527 F.2d 708 (2d Cir. 1975). Similarly, the controls in section
201 of the Act regarding access to stored wire and electronic com-
82 See Cellular Communications Systems, 86 FCC 2d 469, 496 (1981).
83 See 18 U.S.C. ? 2511(4)(b), as added by ? 101(dx2) of H.R. 4952.
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munications are intended to apply only to access within the territo-
rial United States.
Subsection (aX1XC) amends the definition of wire communication
to delete the "common carrier" requirement. In the current envi-
ronment, numerous entities provide electronic communications
services beyond the traditional common carrier. Therefore, the
Co..__..ittee chose to extend federal jurisdiction to the maximum
permissible constitutional limits by providing coverage of a person
who provides or operates facilities for communications that affect
interstate or foreign commerce. See Heart of Atlanta Motel v.
United States, 379 U.S. 241, 258-259 (1964).
In the present telecommunications environment, a terminating
or originating customer or subscriber will often have installed his
own facilities to switch or otherwise process his incoming or outgo-
ing traffic. One example of such equipment is the "private branch
exchange", or PBX, typically owned or leased by the customer and
located on his premises, and used to interconnect the customer's
telephones and date terminals with one another and with the lines
of the local exchange carrier, one or more interexchange carriers,
and possibly other service providers. To the extent that electronic
and wire communications passing through PBXs and other such
equipment affect interstate commerce, the Committee intends that
those communications the protected under Section 2511. The inter-
ception of an electronic or wire communication at a point on the
customer's premises is thus as much a violation of Section 2511 as
if the interception were made through the equipment of a commu-
nications carrier. Similarly, where a user has interconnected its
own equipment into a private network, communications carried on
the network are fully entitled to the protections of Section 2511.
Subsection (a)(1)(D) amends the definition of wire communication
to exclude the radio portion of a cordless telephone communication
that is transmitted between the cordless telephone handset and the
base unit.
By "cordless telephone" we refer not to a cellular telephone, but
to the type of telephone which uses a short range (a few hundred
feet) radio link between the handset and the base unit in place of
the usual wire. Such telephones are regulated under Part 15, sub-
part E of the rules of the Federal Communications Commission
(FCC), and are not licensed. Because the communications made on
some cordless telephones can easily be intercepted with readily
available technologies (such as AM radio), it would be inappropri-
ate to make such interception a criminal offense. The absence of
privacy protection has been noted by the FCC. 47 C.F.R. ? 15.236(a)
(requiring a label stating "PRIVACY OF COMMUNICATIONS MAY NOT BE
ENSURED WHEN USING THIS PHONE"). This view also comports with
some recent cases. See discussion of current law, supra. It should be
noted that it is only the radio portion of the communication that is
excluded. The wire portion of the communication remains fully
covered in the same sense as a traditional wire telephone conversa-
tion.
Subsection (aX2) amends the definition of oral communication to
exclude electronic communications. An oral communication is an
utterance by a person under circumstances exhibiting an expecta-
tion that the communication is not subject to interception, under
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circumstances justifying such an expectation. In essence, an oral
communication is one carried by sound waves, rather than by an
electronic medium.
The definitions of wire communication and oral communication
are not mutually exclusive. Accordingly, different as cts of the
same communication might be differently characterized. For exam-
ple, a person who overhears one end of a telephone conversation by
listening in on the oral utterances of,one of the parties is intercept-
V an oral communication. If the eavesdropper instead taps into
telephone wire, he is intercepting a wire communication. There
have been cases involving radio communications in which the court
having determined that the radio communication was not a wire
communication then analyzes it in privacy terms to determine if it
is an oral communication. The Committee views this as an inappro-
priate consideration and the amendment to 18 U.S.C. 2510(2) re-
jects that case analysis. See, e.g., United States v. Rose, 669 F.2d 23
(1st Cir. 1982).
Subsection (aX3) amends section 2510(4) of title 18 to provide a
definition for the term "intercept" with respect to electronic com-
munications. The definition under current law of "intercept" is re-
tained with respect to "wire" and "oral communications" with one
exception. The Committee added the term "or other" after "aural".
This change is intended to make clear that it is illegal to intercept
the non-voice portion of a wire communication such as the data or
digitized portion of a voice communication. The term intercept
with respect to "electronic communications" is defined to mean
"the interception of the contents of that communication through
the use of any electronic, mechanical or other device".
Subsection (aX4) amends section 2510(3) to strike the words
"identity of the parties to such communication or the existence".
This amendment avoids any ambiguity about the legality of the use
of "pen registers". The Supreme Court has clearly indicated that
the use of pen registers does not violate either this chapter or the
Fourth Amendment. This amendment makes that policy clear. In
addition, this amendment should be read in conjunction with the
new chapter on pen registers, chapter 206 of title 18. It does not,
however, affect the installation on use of pen registers under the
Foreign Intelligence Surveillance Act. 50 U.S.C. 1801 et. seq. This
amendment also makes clear the distinction between contents of
communications and transactional records. The omission of a con-
forming amendment to the definition of "contents" in section 705
of title 47 is not intended to affect the current law under that sec-
tion with respect to pen registers. The use of pen registers has been
found not to violate section 705. See Hodge v. Mountains Tel. &
Telegraph Co., 555 F2d 254 (19th Cir. 1977).
Subsection (aX5) adds six new definitions to the chapter. Section
2510 is amended by adding a new subsection (12) to define "elec-
tronic communications". This expansion permits the inclusion in
the general wiretapping and bugging law of many new forms of
communication. For example, digitized transmissions and electron-
ic mail will be provided with protection against interception. The
definition of electronic communication means "any transfer of
signs, signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part by a wire, radio, electro-
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magnetic, photoelectronic or photooptical system that affects inter-
state or foreign commerce, but does not include any wire or oral
communication." Excluded from the definition of "electronic com-
munication" are: (1) the radio portion of a cordless telephone com-
munication; (2) any wire or oral communication; (3) any communi-
cation by a tone-only paging device; or (4) any communication from
a tracking device.
The term "electronic communication" is intended to cover a
broad range of communication activities that affect interstate or
foreign commerce, except that the term does not include either oral
or wire communications. As a rule, a communication is an electron-
ic communication if it is neither carried by sound waves nor can
fairly be characterized as one containing the human voice (carried
in part by wire). Communications consisting solely of data, for ex-
ample, and all communications transmitted only by radio would be
electronic communications.
A wire communication encompasses the whole of a voice tele-
phone transmission even if part of the transmission is carried by
fibre-optic cable or by radio-as in the case of cellular telephones
and long-distance satellite or microwave facilities. This result is
generally in accord with the case law. See United States v. Clegg,
509 F.2d 605, 611 (5th Cir. 1975); United States v. Gregg, 629 F.
Supp. 958, 963 (W.D. Mo. 1986). Moreover, the conversion of a voice
signal to digital form for purposes of transmission does not, in
itself, render the communication non-wire; the provider's choice of
transmission technology should not be dispositive. The Committee
has intentionally omitted from the definitions any indication that a
wire communication cannot also exhibit some of the characteristics
of an electronic communication.
It should be noted that an improperly mechanical reading of the
phrase "in whole or in part * * * by the aid of wire * * " could
sweep in virtually all voice communications made with the aid of
any electronic equipment, inasmuch as virtually all such equip-
ment includes in its assembly some length of wire or the equiva-
lent. The Committee, however, intends the quoted phrase to refer
to wire that carries the communication to a significant extent from
the point of origin to the point of receipt, and not to wire that is
found inside the terminal equipment at either end of the communi-
cation. On the other hand, communications over a length of wire
that connects two telephones in the same building would be pro-
tected as wire communications. Similarly a cellular telephone
system which uses either the wire-line system or wires in a switch-
ing station is covered as a wire communication.
A transaction may consist, in parts, of both electronic communi-
cations and wire or oral communications. For example, the trans-
mission of data over the telephone is an electronic communication;
but if the parties used the line to speak with one another between
data transmissions, they would then be making a wire communica-
tion. And, indeed, a party's utterances into the telephone mouth-
piece are an oral communication. The rules governing interception
or disclosure may be different for each type of communication. The
Committee understands that the Department of Justice will apply
for a court order under the "wire" standards in cases where a tap
may intercept mixed wire and electronic communications. As long
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as the wire standards are followed a single court order should suf-
fice to authorize the interception of both wire and electronic com-
munications involving the same lines or instruments.
Inclusion of the term "radio" in the definition of "electronic com-
munication" in Section 2510(12) reflects the fact that radio commu-
nications come within the scope of chapter 119. A number of other
provisions, however, affect the legality of the interception of radio
communications under chapter 119. The Committee does not intend
any of the provisions directed specifically to radio to affect the ap-
plicability of Section 705 of the Communications Act of 1934, as
amended, to actions by members of the public.
Subsection (aX5) also adds a definition for the term "user."
"User" means any person or entity who uses an electronic commu-
nication service and is duly authorized by the provider of such
service to engage in such use.
Interception of closed circuit television communications is only
included in the bill in a limited fashion. If a person or entity trans-
mits a closed circuit television picture of a meeting using wires,
microwaves or other method of transmission, the transmission
itself would be an electronic communication and interception of the
picture at any point without either consent or a court order would
be in violation of the statute. By contrast, if law enforcement offi-
cials were to install their own cameras and create their own closed
circuit television picture of a meeting, the capture of the video
images would not be an interception under the statute because
there would be no interception of the contents of an electronic com-
munication. This would be so even if the law enforcement agency
utilized the wiring in the premises to insall the cameras and trans-
mit the images- Intercepting the audio portion of the meeting
would of course be an interception of an oral communication and
the statute would apply to that portion.
Under the Fourth Amendment and recent case law in the area,
law enforcement authorities are bound to seek a court order based
on probable cause to place a closed circuit television camera in
premises where there is a reasonable expectation of privacy with-
out at least one party consent. The whole area of closed circuit tele-
vision is suitable for Congressional action and is a likely subject of
legislation in the future. See H.R. 3455 (Kastenmeier) (applying
Title III standards to video surveillance) The Committee is aware
that the Department of Justice follows the rules established by the
leading cases in this area in seeking closed circuit television
orders,84 and the Committee believes this is a wise procedure pend-
ing either legislation on the subject or a final judicial resolution of
these issues.
Subsection (aX5) also adds a new definition for "electronic com-
munication system" to mean any wire, radio, electronic photoelec-
tronic or photooptical facilities for the transmission of electronic
communications, and any computer facilities or related electronic
equipment for the electronic storage of such communications.
Subsection (aX5) adds a definition for "electronic communication
service" to mean any service which provides to users thereof the
e* United States v. Torres, 751 F.2d 875 (7th Cir. 1984); we also United States v. Brasucci, 786
F. 2d 504 (2d Cir. 1986).
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ability to send or receive electronic communications or wire com-
munications. These services can be provided through the same fa-
cilities. Common carriers like existing telephone companies are
deemed providers of an electronic communication service.
Subsection (a)(5) adds a definition for the term "readily accessible
to the general public." This term is used in section 2511(2) which
creates an exception to the general prohibitions on interception.
The new paragraph (16) states "readily accessible to the general
public" means with respect to a radio communication, that such is
not in one of five separate categories. In other words, if a radio
communication fits into one of the five categories then it will have
privacy protection (unless some other exception applies to preclude
coverage). The first category of protected communications 85 is
radio communications which are scrambled or encrypted. The
terms scrambled or encrypted are used in their technical sense. To
"Encrypt" or to "Scramble" means to convert plaintext into unin-
telligible form by means of equipment intended to protect the con-
tents of a communication from unintended recipients. Equipment
which merely changes the form of a plaintext message, e.g., a
device which converts an analog signal to a digital stream, does not
provide "encryption" within the meaning of this bill. The use of a
word code, no matter how sophisticated, would not suffice. Exam-
ples of scrambling techniques which are currently available include
the data encryption standard (DES).
The second type of protected communications is spread spectrum
radio communications. These radio signals are transmitted using
modulation techniques whose essential parameters have been with-
held from the public with the intention of preserving the privacy of
such communication. See 50 FED. REG. 25234 (June 18, 1985).
Spread spectrum technology usually involves the transmission of a
signal on different frequencies and the receiving station must pos-
sess the necessary algorithm in order to reassemble the signal.
The third type of protected communications is radio communica-
tions carried on a subcarrier or other signal subsidiary. This cate-
gory includes, for example, data and background music services
carried on FM subcarriers and data carried on the vertical blank-
ing interval (VBI) of a television signal. Under Section
2511(2)(g)(ii)(I), however, it is not unlawful to intercept subcarrier
and VBI communications that are transmitted for the use of the
general public, e.g., the stereo subcarrier used in FM broadcasting,
or data carried on the VBI to provide closed-captioning of television
programming for the hearing-impaired.
The fourth type of protected communications is those which are
carried by common carriers. There is an exception for tone-only
paging systems. Thus, the interception of tone-only paging system
transmissions will not be prohibited by this law. On the other
hand, the unauthorized interception of a displaying paging signal
intended for digital display by the paging receiver (which involves
the transmission of alphanumeric characters over the radio) car-
ried by a common carrier is illegal.
85 Protected communication as used in this description means that the communication is oth-
erwise legally protected against interception absent the application of some other exception such
as one party consent.
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The fifth type of protected communications consists of certain
types of radio signals. Included in this category are satellite com-
munications, auxiliary broadcast services and private microwave
services. Each of these services routinely carries business or per-
sonal communications made with an expectation of privacy. These
categories are described by reference to certain parts of the Rules
of the Federal Communications Commission. This category ex-
cludes certain communications which are essentially two-way voice
radio communications.
Part 25 of the FCC's Rules regulates communications made by
satellite. Such communications are not defined to be readily acces-
sible to the general public. Two other provisions of this Act, howev-
er, limit the liability incurred under chapter 119 by the intercep-
tion of certain types of satellite communications. Section
2511(gXiiiXII) exempts activities covered by section 705(b) of the
Communications Act, relating to the interception or receipt of cer-
tain satellite cable programming for private viewing; accordingly,
such activities are not unlawful under chapter 119. Section
2511(4)(bXiii) further provides that it is not an offense under Sec-
tion 2511(4) to intercept an unscrambled and unencrypted "net-
work feed"-i.e., a satellite transmission that is transmitted to a
broadcasting station for purposes of retransmission to the general
public-so long as the conduct is not for the purposes of direct or
indirect commercial advantage or private financial gain.
Also excluded from the category of readily accessible radio com-
munications are those transmitted on frequencies allocated under
subparts D, E, and F of Part 74 of the FCC's Rules. Under the
FCC's Rules, these frequencies may be licensed only to broadcast-
ers. 47 C.F.R. ?? 74.432, 74.532, 74.632. Each of the subparts regu-
lates communications that are entirely internal to a broadcast op-
eration. They include, for example, video and audio transmissions
from a news team in the field to the studio, and transmission from
the studio to the transmitter site. Part 74 transmissions may also
include two-way voice communications, such as those between stu-
dios and remote crews; but this Act provides an exception for such
two-way voice communications made on frequencies shared with
services outside Part 74. The interception of communications on
such shared frequencies is not unlawful under chapter 119.
The final service excluded from the category of readily accessible
radio communications is that regulated under Part 94 of the FCC's
Rules, the private operational fixed microwave service. This service
carries confidential business data. Under limited conditions, it may
also be used to transmit certain types of television material. Trans-
missions under Part 94 are generally made with the intent of
maintaining privacy, and it would be inappropriate to disrupt ongo-
ing business practices by making those communications available
to competitors and to other members of the public.
Subsection (aX5) also provides a definition for "electronic stor-
age". That terms means "any temporary intermediate storage of a
communication incidental to the electronic transmission thereof
and any storage of such communication by an electronic communi-
cation service for purposes of backup protection of such communi-
cation." Section 2510(17) defines "electronic storage" to mean any
temporary, intermediate storage of a communication incidental to
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the electronic transmission thereof, and any storage of such com-
munication by an electronic communication service for purposes of
backup protection of such communication. Under Section 2710,
computer storage is defined as an element of "remote computing
service". These definitions are not intended to limit the terms
"electronic storage" or "computer storage" to any particular
medium of storage. While storage often takes place within the
random access memory of a computer, the term applies equally to
storage in any other form, including that on magnetic tape, disks,
or other media. Thus, for example, the prohibitions against unau-
thorized access to a wire or electronic communication while it is in
electronic storage, as set forth in Section 2701, would prohibit un-
authorized access to such a communication while it is stored on
magnetic tape or disk. The prohibitions would apply similarly to in-
formation held on magnetic tape or disk pursuant to an agreement
to provide remote computing service.
Subsection (a)(5) adds a new definition for the term "aural trans-
fer". "Aural transfer" means a "transfer containing the human
voice at any point between and including the point of origin and
the point of reception". Under this definition voice messages trans-
ferred over a paging system are protected. It is intended that com-
puter-generated or otherwise artificial voices are not included in
this definition and thus will not be part of a "wire communica-
tion". They would, however, be part of an "electronic communica-
tion".
Subsection 101(b) makes three different types of amendments to
existing title 18.
Subsection (bXl) amends section 2511(2)(d) of title 18 by striking
out "or for the purpose of committing any other injurious act'.
Under current federal law it is permissible for one party to consent
to the interception and recording of a conversation. This exception
to the general prohibition on interception, however, contains an ex-
ception relating to persons who intercept or record communications
for illegal, tortious or other injurious purposes. This exception was
added in 1968 by the late Senator Hart in an effort to prevent one
party from intercepting or recording a conversation for blackmail
or similar improper purposes. Unfortunately, that floor amend-
ment was not drafted with precision. As a result, numerous court
cases have arisen wherein the term "other injurious purposes" has
been construed and misconstrued. Most troubling of these cases
have been attempts by parties to chill the exercise of First Amend-
ment rights through the use of civil remedies under this chapter.
For example, in Boddie v. American Broadcasting Co., 731 F.2d 333
(6th Cir. 1984), the plaintiff, whose conversations were recorded by
a journalist, sued. Despite the consent of the reporter who was a
party to the conversation, the plaintiff claimed that the recordation
was illegal because it was done for an improper purpose (e.g., to
embarrass the plaintiff). The court's opinion suggests that if the
network intended to cause "insult and injury" to plaintiff Boddie,
she might be entitled to recover. This interpretation of the statute
places a stumbling block in the path of even the most scrupulous
journalist. Many news stories have been brought to light by record-
ing aconversation with the consent of only one of the parties in-
volved-often the journalist himself. Unfortunately, many news
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stories are embarrassing to someone. The present form of the stat-
ute not only provides such a person with a right to bring suit, but
it also makes the actions of the journalist potentially a criminal of-
fense under section 2511, even if the interception was made for the
purpose of committing neither a criminal act nor a tort. The stat-
ute thus presents the journalist with a hard choice: to get the news
may expose him or her to a criminal conviction and/or civil liabil-
ity. And whether a journalist is convicted in fact may turn, under
Boddie, on how a jury sitting years later assesses the journalist's
subjective intent. The Committee finds such a threat to be incon-
sistent with the guarantees of the First Amendment. Inasmuch as
the amended statute continues to prohibit interceptions made for
the purpose of committing either a crime or a tort (including acts
of defamation), the Committee believes that the public will be af-
forded ample protection against improper or unscrupulous inter-
ception. The amendment is intended to remove only the shadow
of a finding that section 2511 has been violated by interceptions
made in the course of otherwise responsible news gathering. While
the appeals court decision merely sent the case back for further
factual development, it is clear from the facts of the case that the
term "improper purpose" is overly broad and vague. The deletion
of the term leaves in place the exception to one party consent for
illegal or tortious interceptions or recordation. Thus, the original
purpose of the Hart amendment is preserved without maintenance
of the litigation-breeding phrase. This amendment is supported by
Ilie Department of Justice.
Subsection (bX2) amends section 2511(2xf) to expand the excep-
tion applicable to foreign intelligence activities to make sure the
provisions of chapter 121 do not adversely affect such activities.
Section 101(bX2) of H.R. 4952 amends section 2511(2xf) of Title 18
to ensure that nothing in chapter 119 or chapter 121 of Title 18 as
amended by H.R. 4952, affects existing legal authority for United
States Government foreign intelligence activities involving foreign
electronic communications systems. The provision neither enhances
nor diminishes existing authority for such activities; it simply pre-
serves the status quo. It does not provide authority for the conduct
of any intelligence activity.
Further the Committee expects that the practice of providing to
the House and Senate Intelligence Committees proposed changes in
relevant executive branch procedures and regulations governing
the conduct of intelligence activities, including those involving elec-
tronic surveillance, physical searches, and the minimization of in-
formation collected concerning U.S. persons will be continued. As
in the past, the Committee expects that any relevant changes in
these procedures and regulations will be provided to the intelli-
gence committees prior to their taking effect.
Finally, as has been noted before, since Congress last addressed
the issue of privacy of communications in a comprehensive fashion,
the technologies of communication and interception have changed
dramatically, and are expected to continue to do so. These factors
have raised serious issues about the protection of the privacy inter-
ests of U.S. citizens, which are of great concern to this Committee
and to the American people. For this reason, the Committee wishes
to emphasize the obligation of the heads of intelligence agencies to
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continue to keep the Permanent Select Committee on Intelligence
fully and currently informed of all intelligence activities pursuant
to Title V of the National Security Act of 1947.
Section 107 of H.R. 4952 emphasizes that nothing in Title I of the
bill or the amendments made by Title I, such as the changes made
to 18 U.S.C. 2511(2Xf), provides authority for the conduct of any in-
telligence activity.
Subsection (bX4) of section 101 of the bill amends section 2511(2)
to provide new exemptions from criminal liability which are appro-
priate to the new types of technologies which are added to the pri-
vacy protection of the federal wiretap law. Thus, the bill lists a
series of types of interceptions which are permissible.
The Committee has drafted the present Act with an eye to its
interplay with Section 705(a) of the Communications Act of 1934. In
particular, where this bill provides that "it shall not be unlawful"
for the public to engage in specific conduct with respect to radio
transmissions, the Committee intends that such a provision does
not "authorize" the conduct for purposes of the first sentence of
Section 705(a) of the Communications Act. Accordingly, the legality
of such conduct remains subject to inquiry under the Communica-
tions Act. In contrast, where the bill provides that a specified
person "may" engage in certain conduct, or uses similar language
in the affirmative, the Committee intends that such a provision
does "authorize" the conduct for purposes of Section 705(a). The le-
gality of such conduct would be determined under Title 18. In addi-
tion, where judicial interpretations have previously determined
that certain types of activities are implicitly authorized for pur-
poses of Section 705, that interpretation is intended to continue in
effect. See, e.g., United States v. Freeman, 524 F.2d 337, 340 (7th
Cir. 1975), cert. denied, 424 U.S. 920 (1976).
The first exemption is a generic exception. It is permissible to
intercept electronic communications made through an electronic
communication system that is configured so that such electronic
communication is readily accessible to the general public. The term
"configure" is intended to establish an objective standard of design
configuration to begin determining whether a system receives pri-
vacy protection. An example of systems which are readily accessi-
ble include loud speakers hooked up to a telephone system.
It should be noted that the term "readily accessible to the gener-
al public" is a defined term with respect to radio communications.
See discussion, at --, supra. Under section 101(b)(4) nothing car-
ried by wire is "readily accessible to the general public".
Nothing in the bill affects the use of radar detectors, because the
radar transmissions are readily accessible to the general public.
Nothing in the bill, however, affects the authority of states to regu-
late the use of radar detectors.
The second set of exceptions relate to specific types of radio com-
munications which have traditionally been free from prohibitions
on mere interception. Thus, it is permissible to intercept any radio
communication which is transmitted (1) by any station for the use
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of the general public,86 or that relate to ships, aircraft, vehicles or
persons in distress; (2) by any governmental, law enforcement, civil
defense, or public safety communications system, including police
and fire, readily accessible to the general public; (3) by a station
operating on a frequency assigned to amateur, citizens band or gen-
eral mobile radio services, or (4) by any marine or aeronautical
communications system.
Amateur radio communications, including those utilizing tele-
phone interconnect or amateur radio computer linked message sys-
tems, are certainly not those to which this legislation is aimed. All
amateur radio communications conducted on radio frequencies allo-
cated to the Amateur Radio Service are exempt from the electronic
communications intercept prohibitions of the bill.
It should be noted that amateurs, in performing their public
service functions, occasionally utilize communications of other serv-
ices, such as NOAA weather broadcasts and the like. As such,
many amateurs employ "scanner" receivers which are capable of
receiving communications of many different radio services (includ-
ing amateur VHF and UHF communications, typically). The use of,
as an example, a multiband radio receiver by a licensed amateur
should not subject the amateur to criminal prosecution or harass-
ment in any fashion. Amateurs have legitimate reason to monitor
frequencies outside the amateur bands. Many amateurs, for in-
stance, are enrolled in the Military Affiliate Radio System and the
Civil Air Patrol, which use frequencies assigned to the Department
of Defense. Others are members of the Coast Guard Auxiliary
using frequencies in the Maritime Service allocation. Some 30,000
amateurs are part of Skywarn, a system operated by the National
Weather Service for tracking and warning of severe weather condi-
tions, e.g., tornadoes; at times it may be required that they monitor
Government frequencies in connection with this work. In short,
there is legitimate reason for amateurs to have equipment which
tunes beyond amateur bands.
The Committee considered listing all the existing radio services
which are exempt from the bar on interceptions, but rejected that
approach because it would have been cumbersome, possibly redun-
dant, and would have had a built-in obsolescence. When the Com-
mittee asked the Federal Communications Commission for a list of
radio services which were currently regulated by the FCC of the
same kind as those listed in the bill, they provided a list of more
than 40 such services. Such a list is extremely lengthy and the no-
menclature used is frequently changing. Therefore, instead of list-
ing all of these services the Committee listed some of the more
common radio services. In addition, the bill includes a "generic"
exception relating to radio services which are "readily accessible to
the general public." Thus, for example, private land mobile serv-
ices (currently licensed under Part 90 of the FCC Rules) are exempt
from the prohibition on interceptions.
This subsection also exempts from coverage any conduct which is
also prohibited by section 633 of the Communications Act of 1934.
88 These include all communications transmitted for the use of the general public, including
radio and television broadcast signals transmitted under Part 73 of the FCC Rules.
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Thus, if an individual violates the criminal prohibitions in section
633 (relating to cable piracy) they cannot also be charged under
this chapter of title 18.
The subsection also exempts conduct which is excepted from sec-
tion 705(a) of the Communications Act by virtue of section 705(b) of
that Act. Thus, if conduct is permitted under section 705(b) it
would not be a crime under this chapter of title 18. Determination
of whether conduct is permitted under section 705(b) must, of
course, be the result of an examination of the statute, relevant leg-
islative history, existing court interpretations, and constructions
given the statute by appropriate federal regulatory entities.
With respect to the interception of radio communications by
home satellite dishes, the Committee does not intend to make
criminal any type of conduct that is currently lawful under Section
705 of the Communications Act and the present Wiretap Act. To
remove any doubts about its impact on home satellite dish owners,
H.R. 4952 contains a provision expressly stating that it is not un-
lawful under Title 18 to intercept unscrambled network program-
ming feeds to affiliates-i.e., communications "transmitted to a
broadcasting station for purposes of retransmission to the general
public"-unless the conduct is for the purposes of direct or indirect
commercial advantage or private financial gain. Accordingly H.R.
4952 does not create a new class of criminal conduct concerning
interception of radio communications by home satellite dishes. In
order to violate Title 18, moreover, an interception must be "will-
ful". Incidental or inadvertent interception of a protected video
signal which does not benefit a home dish owner would not consti-
tute a criminal violation of the statute. H.R. 4952, in short, is care-
fully drafted to remain as neutral as possible with respect to the
coverage of both Section 705 and Title 18 as to interception of radio
signals by home satellite dish owners. "Private gain" is a term de-
fined in section 705(b) and the meaning given there is intended to
apply to this section as well.
H.R. 4952 adds a new Section 2511(4)(c) which exempts from Title
18 the reception by home earth station owners of certain unscram-
bled satellite transmissions, as long as such reception is not for
commercial advantage or private gain (including any use by a com-
mercial establishment). While the bill does not make criminal any
type of conduct with respect to interception of radio communica-
tions by home satellite dishes that is currently lawful under section
705 of the Communications Act and the provisions of Chapter 119
of Title 18, the specific exemption in this subsection does not apply
to the interception of private communications via satellite such as
sporting events when they are not the final output of a national
television network to a broadcasting station for purposes of re-
transmission to the general public.
However, even the unscrambled satellite transmission which is
not protected under Title 18 because it comes within Section
2511(4)(bXiii) may in fact be a private communication, and H.R.
4952 is not intended to exempt such noncommercial interception
from liability, if any, under Section 705 of Title 47 or otherwise
"authorize" interception of unscrambled transmissions for noncom-
mercial purposes. Rather, the intention of the Committee is that
the legality of noncommercial interception of this type of unscram-
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bled satellite transmission will be decided under Section 705 of the
Communications Act. The Committee expresses no view on this
issue. The Committee notes, however, that it is the view of the
General Counsel of the FCC that interception and viewing by home
earth station owners of television network satellite feeds to local
affiliated television stations could subject the interceptor to civil
and criminal penalties under the Communications Act. See, Letter
of Jack D. Smith to Honorable Robert Kastenmeier, Chairman,
Subcommittee on Courts, Civil Liberties and the Administration of
Justice, November 27, 1985. Compare National Football League v.
McBee & Benno's, - F.2d- (8th Cir. June 4, 1986) (individual
interception of "clean feeds" not permanently enjoined because of
equitable considerations).
[The letter follows:]
FEDERAL COMMUNICATIONS COMMISSION,
Washington, DC, November 27, 1985.
Hon. ROBERT W. KASTENMEIER,
Chairman, Subcommittee on Courts, Civil Liberties, and the Admin-
istration of Justice, Washington, DC
DEAR CONGRESSMAN KASTENMEIER: At a recent meeting between
congressional and Commission staff, David Beier requested that my
office issue an opinion on the applicability of Section 705 of the
Communications Act to network television feeds. Specifically, we
were asked whether Section 705 prohibits owners of satellite anten-
nas from intercepting the networks' television feeds as they are
being distributed to their affiliates via satellite. In general, those
transmissions contain network programming and the national com-
mercial spots. Local adveretising and programming are added at
the affiliates' broadcast station. Thus, by intercepting the net-
works' satellite feeds, viewers are seeing essentially the same pro-
grams as other television viewers but without certain commercials.
Section 705 provides, in pertinent part that
No person not being entitled thereto shall receive or assist
in receiving any interstate or foreign communication by
radio and use such communication (or any information
therein contained) for his own benefit or for the benefit of
another not entitled thereto. . . . This section shall not
apply to the receiving, divulging, publishing, or utilizing
the contents of any radio communication which is trans-
mitted by any station for the use of the general public.
The courts, in several civil and criminal actions, have been the pri-
mary interpreters of Section 705. Unfortunately, none of the decid-
ed cases are directly on point in that they do not apply to the inter-
ception of satellite network feeds. However, the case law applying
Section 705 to MDS transmissions strongly suggests that Section
705(a) prohibits the unauthorized interception of satellite network
feeds.
The networks' satellite feeds clearly constitute interstate radio
communications. Viewing those transmissions constitutes a use by
the owner of the satellite antenna of the signal "for his own bene-
fit". See e.g., Movie Systems, Inc. v. Heller, 710 F. 2d 492 (8th Cir.
1983); Hoosier Home Theater, Inc. v. Adkins, 595 F. Supp. 389 (S.D.
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Ind. 1984). The networks and their local affiliates fund their oper-
ations from advertising revenues, which, in turn, are a function of
the size of the viewing audience. Because some local commercials
are not carried on the network feeds, owners of satellite antennas
would not see those commercials and hence would not generally be
counted as part of the viewing audience. Therefore, unauthorized
interception of the satellite network feeds has the effect of reduc-
ing the networks' audience and, as a consequence, their affiliates'
operating revenues. In economic terms, this appears to be analo-
gous to the unauthorized interception of subscription television sig-
nals without payment.
Section 705(a) expressly excludes from its prohibition radio com-
munications transmitted for the use of the general public. Satellite
transmissions, like MDS transmissions, are, however, a common
carrier service provided on common carrier frequencies. See Movie
Systems, Inc. v. Heller, supra at 495; Home Box Office, Inc. v. Ad-
vanced Consumer Technology, Movie Antenna, Inc., 549 F. Supp. 14,
24 (S.D.N.Y. 1981); Chartwell Communications Group v. Westbrook,
637 F.2d 459, 465 (6th Cir. 1980). For the reason discussed above
concerning advertising revenues, they are not intended to be
viewed by the general public in the form they are transmitted from
satellites. Additionally, in determining the applicability of this ex-
clusion, the critical factor is the intent of the party transmitting
the radio communications. See Chartwell Communications Group v.
Westbrook, supra at 464-465. The networks are of course the ulti-
mate authority on their intent. It appears that network satellite
feeds are only intended for reception by their affiliates. We believe
that the networks are considering scrambling these transmissions
in order to preclude their interception. Existing case precedent
does not require, however, that networks scramble their signals in
order to be encompassed within Section 705. See Home Box Office,
Inc. v. Advanced Consumer Technology, Movie Antenna, Inc., supra
at 21-22; Hoosier Home Theater, Inc. v. Adkins, supra at 396.
Finally, we recognize that under certain conditions, Section
705(b) further excepts from the prohibition of 705(a) the intercep-
tion of satellite cable programming for private viewing. The satel-
lite network feeds are not, however, satellite cable programming as
that term is defined in Section 705(cXl). Thus, Section 705(b) does
not otherwise sanction the interception.
In summation, Section 705(a) appears to encompass the network
satellite feeds. Unauthorized interception of those signals by home
owners with satellite antennas or the unauthorized sale of decoders
could lead to civil or criminal actions under Section 705. See e.g.,
Movie Systems, Inc. v. Heller, supra; United States v. Westbrook, 502
F. Supp. 588 (E.D. Mich. 1980).
Sincerely yours,
JACK D. SMITH, General Counsel.
Subsection (gXiv) also exempts from the criminal prohibitions the
interception of any electronic communication the transmission of
which is causing harmful interference to any lawfully operating
station, to the extent necessary to identify the source of such inter-
ference. This exemption was suggested by the Association of North
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American Radio Clubs (ANARC) and meets the needs of the Feder-
al Communications Commission.
Finally, this subsection, (gXv), exempts the interception of a radio
communication which is made for other users of the same frequen-
cy when such communication is made through a common carrier
system that utilizes frequencies monitored by individuals engaged
in the provision or use of such a system, as long as the communica-
tion is not scrambled or encrypted. This exception will permit the
monitoring of shared channels on marine radio which utilizes an
onshore operator.
Subsection (bX4) also amends section 2511(2) to add a new subsec-
tion (h). Proposed subsection (hXi) clarifies that this chapter does
not regulate the use of pen registers. The new subsection (h)(ii)
states that no violation of this chapter occurs if a provider of wire
or electronic communication service records the fact that a commu-
nication was initiated or completed in order to protect such provid-
er, another provider furnishing service toward the completion of
the wire or electronic communication or user of that service, from
fraudulent, unlawful or abusive use of such a service. This provi-
sion permits the electronic and wire communication providers to
protect themselves and their customers. Thus, the Committee con-
tinues the current law and practice with respect to activities of
telephone companies to protect themselves against fraud, abuse or
unlawful use. See United States v. Auler, 539 F.2d 642 (7th Cir.
1976), cert. denied, 429 U.S. 1104 (1977); United States v. Goldstein,
532 F.2d 1305 (9th Cir.), cert. denied sub nom. Roberts v. United
States, 429 U.S. 960 (1976); United States v. Freeman, 524 F.2d 337
(7th Cir. 1975), cert. denied, 424 U.S. 920 (1976); United States v.
Clegg, 509 F.2d 605 (5th Cir. 1975); United States v. Shah, 371 F.
Supp. 1170 (W.D.Pa. 1974).
Proposed subsection (hXiii) states that it is not unlawful to use a
"trap and trace" device. See Michigan Bell Tel. Co. v. United
States, 585 F.2d 385 (6th Cir. 1977) (upholding the use of trap and
trace devices under Federal Rule of Criminal Procedure. Rule 41)
Subsection (c) provides technical and conforming amendments.
Subsection (01) adds "electronic communication" in appropriate
places throughout the chapter. s 7 Subsection (cX2) amends the head-
ing of the chapter. Subsection (cX3) amends the table of chapters to
add electronic communications to the table. Subsection (c) (4), (5),
(6) and (7) makes appropriate technical amendments to delete the
term "common carrier' and substitute in its place "provider of
wire or electronic communication service."
Section 2511(2XaXi), as amended, specifies that it is not unlawful
for the employees of providers of wire or electronic communication
services to intercept customer communications in the normal
course of employment while engaged in any activity which is a nec-
87 Similarly it should be noted that the amendments to section 2511(2Xd) (relating to one-
party consent) also apply
the exemption to private microwave services. It ie the Committee's intent to extend
with respect to one-party consent in section 2511(2Xd) to electronic communica-
tions. For example, if a licensee of a private microwave system, licensed pursuant to Part 94 of
the Federal Communications Commission a Rules, or the operator of a private wireline or pri-
vate fiber optic system secures consent for the licensee's or operator s recording and/or monitor-
ing of communications over that private system from one of the parties to the communications,
such recording and/or monitoring is permissible.
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essary incident to the rendition of the service or to the protection
of the rights or property of the providor, except that a provider of
wire communication service to the public shall not utilize service
observing or random monitoring except for mechanical or service
quality checks. In applying the second clause only to wire commu-
nications, this provision reflects an important technical distinction
between electronic communications and traditional voice telephone
service. The provider of electronic communications services may
have to monitor a stream of transmissions in order properly to
route, terminate, and otherwise manage the individual messages it
contains. These monitoring functions, which may be necessary to
the provision of an electronic communication service, do not in-
volve humans listening in on voice conversations. Accordingly, they
are not prohibited. In contrast, the traditional limits on service
"observing" and random "monitoring" do refer to human aural
interception and are retained with respect to voice ("wire") commu-
nications.
Subsection (d) modifies the general penalty structure for criminal
violations of this chapter. The general rule is that a willful viola-
tion is punishable as a five year felony. Thus, unless one of the ex-
ceptions applies to a person found guilty of willfully violating one
of the criminal statutes in the chapter, they will be liable for a fine
under the chapter 88 and imprisonment of up to five years or both.
The first exception for this general rule is that the interception
of radio communications are punishable as one year misdemeanors,
with fines of up to $100,000 18 U.S.C. 3623. There are three excep-
tions to this general rule. If the offender has been previously found
to have been guilty of an offense of intercepting radio communica-
tions, then the felony provisions apply. Similarly, if the intercep-
tion is done for illegal, tortious or commercial gain purposes, then
the offender is punishable under the felony penalty. The second ex-
ception is that first offenders who intercept the radio portion of a
cellular telephone call (and who act without one of the enumerated
bad purposes) may only be subject to punishment of up to six
months in prison or a $500 fine or both.
In the event that an offender intercepts the wire portion of a
telephone call such conduct remains a five year felony.
The third exception is that conduct, otherwise an offense under
this subsection that consists of or relates to the interception of a
satellite transmission that is not encrypted or scrambled and that
is transmitted to a broadcasting station for purposes of retransmis-
sion to the general public, is not an offense under this chapter and
is not subject to civil liability, unless the conduct is for the pur-
poses of direct or indirect commercial advantage or private finan-
cial gain. The terms "direct or indirect commercial advantage or
private financial gain" are intended to have the same meaning as
those terms have when used in 47 U.S.C. 705(b). This third excep-
tion decriminalizes the interception of "network feeds" under title
18. The exception does not extend beyond "network feeds." The
88 18 U.S.C. 3623 provides for a different maximum fine level for felonies, or misdemeanors
resulting in death. Individual defendants can be fined up to $250,000 and organizations up to
$500,000.
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Committee notes that interception and disclosure or use may vio-
late section 705 of the Communications Act. See note 9, supra.
The penalty structure assumes that more active participation is
necessary when a person engages in traditional wiretapping or bug-
ging; therefore, a higher degree of culpability attaches to such con-
duct. Similarly, higher penalties are justified for second or subse-
quent offenders or for offenders who engage in prohibited conduct
for improper purposes. On the other hand the Committee recog-
nized that although the criminal provisions of the chapter require
"willful violations", interception of radio transmissions can be
more easily achieved. Therefore, the Committee reduced the penal-
ties for the interception of radio transmissions.
Subsection (e) amends section 2518(10) to provide that the reme-
dies and sanctions described in this chapter with respect to the
interception of electronic communications are the only judicial
remedies and sanctions available for non-constitutional violations
of this chapter involving such communiiations. In the event that
there is a violation of law of a constitutional magnitude the court
involved in a subsequent criminal trial will apply the existing con-
stitutional law with respect to the exclusionary rule. Mapp v. Ohio,
367 U.S. 643, 652 (1961); Massachusetts v. Shepperd, 104 S.Ct. 3424
(1984); United States v. Leon, 104 S.Ct. 3405 (1984).
Section 102 amends section 2511 of title 18 to add a new criminal
prohibition on disclosure by adding a new subsection (3XA). The
new language provides that a person or entity providing wire or
electronic communication service to the public shall not willfully
divulge the contents of any communication (other than one to such
person or entity, or an agent thereof) while in transmission on that
service to any person or entity other than an addressee or intended
recipient of such communication or the agent of such addressee or
intended recipient. The amendment to section 2511 made by ? 102
includes the term "to the public" and hereby includes the govern-
ment as part of the public. Thus, FTS services are included. The
term "willfully" is used so as to conform this criminal prohibition
with those in the rest of the chapter.
The term "willful" as used in this chapter has been construed-
and misconstrued-by the courts. Note, An Analysis of the Term
Willfull in Federal Criminal Statutes, 51 NoTRE DAME LAWYER 786
(1976). By retaining the same terminology the Committee does not
intend to perpetuate the confusion which has emerged in the case
law. See C. Fishman, Wiretapping and Eavesdropping, Cum. Suppl.
1985 section 7.15 pages 37-41. Thus, the Committee intends that
the term have the same meaning as the term intentional. An "in-
tentional" state of mind means that one's state of mind is inten-
tional as to one's conduct or the result of one's conduct if such con-
duct or result is one's conscious objective. The intentional state of
mind is applicable only to conduct and results. Since one has no
control over the existence of circumstances, one cannot "intend"
circumstances.
The term "intentional" is narrower than the dictionary defini-
tion of "intentional". "Intentional" means more than that one vol-
untarily engaged in conduct or caused a result. Such conduct or the
causing of the result must have been the person's conscious objec-
tive.
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49
In contrast a knowing state of mind is (1) an awareness of the
nature of the conduct, (2) an awareness of or a firm belief in the
existence of the circumstance and (3) an awareness of or a firm
belief in the substantial certainty of the result.
Thus, the distinction between an "intentional" state of mind and
a "knowing" state of mind is narrow but important. As recently
stated by Mr. Justice Rehnquist,
Perhaps the most significant, and most esoteric, distinc-
tion drawn by [Model Penal Code] analysis is that between
the mental states of "purpose" and "knowledge". As we
pointed out in United States v. United States Gypsum Co.,
438 U.S. 422, 445 (1978), a person who causes a particular
result is said to act purposefully (intentionally) "when he
consciously desires that result, whatever the likelihood of
that result happening from his conduct"; while he is said
to act knowingly if he is aware "that the result is practi-
cally certain to follow from his conduct, whatever his
desire may be as to that result.' '[footnote omitted.]
In the case of most crimes, "the limited distinction be-
tween knowledge and purpose has not been considered im-
portant since `there is good reason for imposing liability
whether the defendant desired or merely knew of the prac-
tical certainty of the results,"' [citation omitted] * * *
In certain narrow classes of crimes, however, heightened culpa-
bility has been thought to merit special attention. United States v.
Bailey, 444 U.S. 394 (1980).
The term "intentional" does not require that the act was com-
mitted for a particular purpose or motive. See Senate Report 97-
307 at 67.
By the use of the term "willful" (throughout chapter 119)-and
its accompanying definition-the Committee precludes the applica-
tin of civil or criminal liability for acts of inadvertent interception.
This section contains an exception to the limitations of divul-
gence. The exception applies to persons or entities providing wire
or electronic communication service to the public. Such persons or
entities are permitted to divulge the contents of any such commu-
nication if. (1) otherwise authorized in section 2511(2XA) or 2517 of
title 18; (2) with the consent of the originator of any addressee or
intended recipient of such communication; (3) to any person em-
ployed or authorized, or whose facilities are used, to forward such
communication to its destination, or (4) which were inadvertently
obtained by the service provider and which appear to pertain to
the commission of a crime if such divulgence is made to a law en-
forcement agency.
The exceptions to the divulgence bar are relatively straightfor-
ward. Obviously providers should be permitted to divulge under
other provisions of the chapter. To be consistent with the one party
consent exception found in the chapter a similar exception is ap-
propriate here. It is also logical to provide an exception with re-
spect to activities necessary and intrinsic to the communication ac-
tivity, therefore it is necessary to exempt communication interme-
diaries. Finally, if a communication provider inadvertently obtains
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the contents of a communication during transmission which ap-
pears to relate to the commission of a crime, divulgence is permit-
ted when such divulgence is made to a law enforcement agency. If
the provider purposefully sets out to monitor conversations to as-
certain whether criminal activity has occurred this exception
would not apply.
Section 103 amends-largely by recodifying-the existing section
2520 of title 18 to incorporate violations involving interception, dis-
closure or willful 89 use of wire, oral or electronic communications.
Proposed subsection (a) authorizes the commencement of a civil
suit. The plaintiff may bring a civil action under Section 2520
whether or not the defendant has been subject to a criminal pros-
ecution for the acts complained of; but in the absence of such pros-
ecution and conviction, it is the plaintiff's burden to establish that
the requirements of this section are met. Subsection (b) indicates
that appropriate relief can include: (1) preliminary and other equi-
table or declaratory relief as may be appropriate; (2) damages and
punitive damages; and (3) reasonable attorney's fees and other liti-
gation costs reasonably incurred. Subsection (d) of proposed section
2520 provides a method for the computation of damages. Under
subsection (c) the court may assess damages consisting of whichev-
er is greater of the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a result of the vio-
lation or statutory damages of whichever is greater of $100 a day
for each day of violation or $10,000.
Subsection (d) provides a good faith defense to actions brought
under this section. The term "good faith" as used in this section
includes the receipt of a facially valid court order. Thus, the fact that
the provider of electronic communication service also has received
such a court order, means the provider would be entitled to a
dismissal of a civil course of action upon a showing that such
provider acted within the scope of the court order.
Subsection (e) of proposed section 2520 provides a statute of limi-
tations for actions brought under this section. The subsection pro-
vides that any action may not be commenced later than two years
after the date upon which the claimant first has reasonable oppor-
tunity to discover the violation.
Section 104 amends the list of federal officials who may make ap-
plications for court orders under this chapter. Section 2516(1) is
amended to add to the list of officials who may be specifically des-
ignated by the Attorey General to authorize applications to include
any acting Assistant Attorney General, or any Deputy Assistant
Attorney General in the Criminal Division. The addition of an
acting Assistant Attorney General is not meant to imply rejection
in any other context of the well-established principle that an acting
official ordinarily possesses all the legal powers of the official for
whom he is acting, see Keyser v. Hitz, 133 H.S. 138 (1890), but
rather to clarify the law under this statute in light of its unique
history and interpretation. Compare, e.g., United States v. Acon, 513
8? The term "willful" is intended to have the same meaning as it does when used in other
sections of this chapter.
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F.2d 513 (3d Cir. 1975), with United States v. Pellieci, 504 F.2d 1106
(1st Cir. 1974), cert. denied, 413 U.S. 1122.
Section 105 amends section 2516(1) by adding new crimes which
can be used to justify an application for wiretapping or bugging
order. The new crimes include violation of the following title 18
provisions: (1) section 751 (relating to escape); (2) sections 2312 and
2313 (relating to automobile theft); (3) the second section 2320 (re-
lating to trafficking in certain motor vehicles or motor vehicle
parts); (4) section 1203 (relating to fraud and related activities in
connection with access devices); (5) felony violations of sections
2511 and 2512 (relating to interception and disclosure of certain
communications and to certain interception devices); (6) section
3146 (relating to penalty for failure to appear); (7) section 3521 (re-
lating to violations of the security of protecting witnesses); (8) sec-
tion 32 (relating to destruction of aircraft or aircraft facilities); (9)
section 1952A (relating to use of interstate commerce facilities in
the commission of murder for hire); (10) section 1952B (relating to
violent crimes in aid of racketeering activity); (11) section 115 (re-
lating to threats against a federal official); (12) the section in chap-
ter 65 relating to destruction of an energy facility; (13) section 1341
(relating to mail fraud); and (14) any felony violation of sections
2511 and 2512 (relating to interception and disclosure of certain
intercepting devices). In addition, this section authorizes the appli-
cation for orders under this chapter for the location of a fugitive
from an offense described in this section.
Section 105(b) amends section 2516 to authorize the government
to apply for a court order authorizing or approving the interception
of an electronic communication by an investigative or law enforce-
ment officer when an interception may provide evidence of a feder-
al felony. Thus, for non-wire, non-oral electronic communications, a
different and less restrictive list of crimes can be used to justify an
application for interception. Section 105(b) permits the government
to make applications for the interception of electronic communica-
tions. The Committee has been informed by the Department of Jus-
tice that for the three years which follow the date of enactment of
this legislation that this exercise of authority will only be made
pursuant to the approval of the same level of officials as those in-
volved in the approval of applications for wire intercepts. In addi-
tion to this voluntary regulatory limitation, the Department of Jus-
tice has committed themselves to submit to the relevant Congres-
sional committees any proposed changes in these regulations at
least 90 days in advance of any change.
Section 106 contains four subsections. Subsection (a) provides
that a court can authorize an order within the court's jurisdiction
and outside that jurisdiction but within the United States in the
case of a mobile interception device authorized within such juris-
diction. In the usual case the court will authorize the installation
of a device, the device will be installed within the court's jurisdic-
tion and the suspect will then move outside the court's jurisdiction.
Nothing in this section affects the current law with respect to the
use of such devices outside the United States. In certain cases a
device authorized for installation, for instance, in an automobile
may be authorized in one district and the vehicle might be moved
to another district prior to installation. The authorization will
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permit installation in the district to which the vehicle has been
moved.
Subsection (b) amends section 2518(4) by striking out "at reasona-
ble rates" and inserting in lieu thereof "for reasonable expenses in-
curred in providing such facilities or assistance." This is designed
to permit reimbursement to be available at an appropriate amount
in light of the work required for a particular activity. While in the
ordinary case a flat or general rate may be appropriate, this
change will permit flexibility to permit reimbursement at a higher
level in unusual cases.
Subsection (c) makes two changes in section 2518(5) of title 18.
Subparagraph (1) provides a rule for when the 30 days to install a
tap or bug begins to run. Under this rule the 30 day time period
commences on the earlier of the day on which the officer first
begins to conduct an interception or ten days after the order is en-
tered. Under this rule if an officer took 9 days after the entry of
the order to effectuate the tap and began to overhear conversations
then the 30 day time period would start from on the 9th day.
Subparagraph (2) of subsection (c) of section 106 of the bill pro-
vides a special minimization rule. Under this rule when an inter-
cepted communication is in a code or foreign language and an
expert in that foreign language or code is not reasonably available
during that interception period, minimization may be accomplished
as soon as practicable after the interception. In this regard, it is
contemplated that the translator or decoder will listen to the tapes
of an interception and make available to the investigators the
minimized portions preserving the rest for later possible court pe-
rusal.
Subparagraph (2) of subsection (c) of section 106 of the bill also
provides that the monitoring of interceptions under this chapter
may be conducted in whole or in part by Government personnel, or
by individuals operating under contract with the Government, as
long as such personnel are acting under the supervision of an in-
vestigative or law enforcement officer authorized to conduct the
interception. This change, which was sought by the Federal Bureau
of Investigation, is designed to free field agents from the relatively
routine activity of monitoring interceptions so that they can
engage in other law enforcement activities.
Subsection (d) of section 106 amends 2518 of title 18 to provide
new rules with respect to the specificity required in the descrip-
tions of the place to be bugged or tapped. Under current law, the
application and the order must indicate the "particular" facility or
place in which the interception is to occur. The amendments estab-
lish two largely similar rules, the specificity with which the locale
of an interception of `oral communications'.' and "wire communica-
tions" can occur.
With respect to "oral communications" a limited list of federal
officials can apply for a special order seeking relief under this pro-
vision. The application must contain a full and complete statement
as to why the ordinary specification requirements are not practical.
The application must also identify the person committing the of-
fense and whose communications are being intercepted. The judge
in turn must find that the ordinary specification rules are not prac-
tical. Examples of situations where ordinary specification rules
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would not be practical would be a suspect who moves from room to
room in a hotel to avoid a bug and who sets up a meeting with an-
other suspect for a beach or field. In that case, the order could indi-
cate authority to follow the suspect and engage in the interception
once the targeted conversation occurs.
The rule with respect to "wire communications" is somewhat
similar. An application for relief from the ordinary specificity rules
must be made by a limited list of federal officials. The application
must show that the person committing the offense has a purpose to
thwart interception by changing facilities. In these cases, the court
must find that the applicant has shown that such a purpose has
been evidenced by the suspect. An example of a situation which
would meet this test would be an alleged terrorist who went from
phone booth to phone booth numerous times to avoid interception.
Alternatively, a person whose telephone calls were intercepted who
said that they were planning on moving from phone to phone or to
a pay phone, to avoid detection would have demonstrated that pur-
pose.
Both with respect to "wire" and "dral" communications, where
the federal government has been successful in obtaining this re-
laxed specificity order the government cannot commence the inter-
ception until the facilities or place from which the communication
is to be commenced is ascertained by the person implementing the
interception order. In other words the actual interception could not
commence until the suspect commences or evidences an intention
to commence a conversation. Thus, it would be improper to use this
expanded specificity order to tap a series of telephones, intercept
all conversation over such phones and then minimize the conversa-
tions collected as a result. This provision puts the burden on the
investigatory agency to ascertain when the interception to take
place.
Section 107 subsection (a) provides that "* * * (n)othing in this
Act or the amendments made by this Act constitutes authority for
the conduct of any intelligence activity. This provision clarifies
that the amendments made in section 102(bX3) are not read as con-
stituting any new authority; rather those amendments represent
an exemption from this chapter and chapter 121 for otherwise
lawful activities.
Section 107(bXl) exempts communications security monitoring
from coverage by Chapter 119 or 121 of Title 18, United States
Code. Communications security measures are protective measures
taken to deny unauthorized persons information derived from
United States Government telecommunications and to ensure the
authenticity of such communications. Communications security
protection results from the application of security measures to elec-
trical systems generating, handling, processing, or using informa-
tion the loss of which could adversely affect the national interest.
Communications security monitoring is the systematic examination
of telecommunications carried out to determine the adequacy of
communications security deficiencies, to provide data from which
to predict the effectiveness of proposed communications security
measures, and to confirm the adequacy of such measures after im-
plementation. Communications security monitoring is an essential
part of such examinations and is conducted pursuant to detailed
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guidelines approved by the Attorney General. Supra, note 11.
These procedures generally set forth an elaborate procedure to
assure the communications security monitoring of private commu-
nications (as defined in para. 4.e.) is based on consent. See para. 5.b.
and 6.e. of NASCI, 4000A. Communications security monitoring is
the act of listening to, copying, or recording transmissions of the
Executive Branch official telecommunications, including the com-
munications of certain contractors, to provide technical material
for analysis in order to determine the degree of security being pro-
vided to these transmissions. This security, includes, for example,
that provided by cryptographic equipment. For purposes of commu-
nications security monitoring, government telecommunications are
telecommunications of any employee, officer, contractor, or other
entity of the United States Government which concern an official
purpose of government and which are transmitted over a telecom-
munications system owned or leased by the United States Govern-
ment or a Government contractor.
Subsection (b) of section 107 provides that this Act does not affect
the conduct by officers and employees of the United States Govern-
ment when such conduct is in accordance with other applicable fed-
eral law and if conducted in accordance with procedures approved
by the Attorney General. See e.g., Letter from William French
Smith, Attorney General, to Lincoln D. Faurer, Director, National
Security Agency, dated January 9, 1984 (relating to Guidelines For
the Conduct of Communications Security Monitoring Activities,
NACSI No. 4000A). The type of activity referred to in this proviso
relates to one or more of three categories of activities: (1) intercep-
tion of encrypted or scrambled or other official communications for
communications security of United States Executive Branch de-
partment or entities or United States government contractors 90;
(2) interception of radio communications transmitted between or
among foreign powers or agents of foreign powers; or (3) accessing
electronic communication systems used exclusively by a foreign
power or an agent of a foreign power.
[The letter follows:]
OFFICE OF THE ATTORNEY GENERAL,
Washington, DC., January 9, 1984.
LINcoLN D. FAURER,
Lieutenant General, USAF,
Director, National Security Agency,
Ft. George G. Meade, MD.
DEAR DIRECTOR FAURER: The attached procedures governing the
communications security (COMSEC) activities of the United States
government meet the requirements of Executive Order 12333 and
are otherwise lawful. Accordingly, they are hereby approved.
?O Government contractor means an individual, corporation, partnership or other entity per-
forming work under a United States Government contract.
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[Paragraph regarding internal policy discussions unrelated to
lawfulness of the procedures deleted.]
Sincerely,
WILLIAM FRENCH SMITH,
Attorney General.
NACSI NO. 4000
GUIDELINES FOR THE CONDUCT OF COMMUNICATIONS SECURITY
MONITORING ACTIVITIES
1. REFERENCES
a. Communications Act of 1934, Public Law 73-416 (as amended).
b. Omnibus Crime Control and Safe Streets Act of 1968, Public
Law 90-351 (as amended).
c. Foreign Intelligence Surveillance Act of 1978, Public Law 95-
511.
d. National Communications Security Directive, dated 20 June
1979.
e. Executive Order 12333, "United States Intelligence Activities,"
dated 4 December 1981.
2. INTRODUCTION
The basic purpose of communications security (COMSEC) moni-
toring is to provide unique material, not readily available through
other sources, to evaluate the status of U.S. COMSEC. The infor-
mation collected through the COMSEC monitoring program is simi-
lar to the information potentially available to foreign powers
through their own signals intelligence (SIGINT) collection. Hypo-
thetical projections of the vulnerability of telecommunications, pro-
cedures, equipment, and systems, based on technical analysis and
modeling, do not always provide a comprehensive data base for
analysis. COMSEC monitoring is, therefore, used to provide the em-
pirical data necessary to conduct comprehensive analyses of these
vulnerabilities and afford a basis for correcting them.
3. PURPOSE AND SCOPE
a. This Instruction provides policy and guidance for the establish-
ment of COMSEC monitoring procedures consistent with applicable
law and regulations.' It implements that portion of the National
Communications Security Directive (Reference d.) which assigns
the Director, National Security Agency (NSA), responsibility to
issue guilelines for the conduct of COMSEC monitoring.
b. This Instruction is applicable to all Federal Government de-
partments and agencies engaged in or using the results of
COMSEC monitoring. It has been approved by the Attorney Gener-
al.
? Although there are no Federal statutes specifically addressing COMSEC, References a., b.,
and c. will have an impact upon any COMSEC monitoring guidelines and procedures.
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c. Technical surveillance countermeasures, electronic sweeps,
surveillance of non-communications emissions (e.g., radar), and
TEMPEST testing are not within the scope of this Instruction.
a. COMSEC. Protective measures taken to deny unauthorized
persons information derived from telecommunications of the U.S.
Government related to national security and to ensure the authen-
ticity of such communications. Such protection results from the ap-
plication of security measures (including cryptosecurity, transmis-
sion security, and emissions security) to electrical systems generat-
ing, handling, processing, or using national security or national se-
curity-related information. It also includes the application of physi-
cal security measures to COMSEC information or materials.
b. COMSEC Monitoring. The act of listening to, copying, or re-
cording transmissions of one's own official telecommunications to
provide material for analysis in order to determine the degree of
security being provided to those transmissions.
c. Contents. When used with respect to a communication, it in-
cludes any information concerning the identity of the parties there-
to, or the existence or meaning of that communication.
d. Electronic Surveillance. The acquisition of a nonpublic commu-
nication by electronic means without the consent of a person who
is a party to an electronic communication, but not including the
use of radio direction-finding equipment solely to determine the lo-
cation of a transmitter.
e. Private Communication. A communication in which the parties
thereto, in the absence of their consent to be monitored for
COMSEC purposes, have a reasonable expectation of privacy.
f. Telecommunications. The transmission, communication, or
processing of information, including the preparation of such infor-
mation therefor, by electrical, electromagnetic, electromechanical,
or electro-optical means.
g. Telecommunications System. The devices used to transmit and/
or receive communications or process telecommunications, includ-
ing the preparation of information, therefor; the devices may be
electrical, electromagnetic, electromechanical, or electro-optical.
h. Government Telecommunications. Telecommunications of any
employee, officer, contractor, or other entity of the U.S. Govern-
ment which concern an official purpose of Government and which
are transmitted over a telecommunications system owned or leased
by the U.S. Government or a Government contractor. (See Telecom-
munications and Telecommunications System, above.)
a. The Government will conduct COMSEC monitoring activities
only as necessary to determine the degree of security provided to
Government telecommunications and aid in countering their vul-
nerability. Such activities shall be conducted in strict compliance
with current law, executive orders, and policy.
b. Government telecommunications systems are subject to
COMSEC monitoring by duly authorized Government entities. The
use of such systems by any person shall be construed to imply con-
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sent to the monitoring for COMSEC purposes of communications
carried over them." Users of these systems must be properly noti-
fied in advance, in accordance with the guidelines in subparagraph
6.e., below, that their use of these systems constitutes consent to
monitoring for COMSEC purposes. The Government shall not mon-
itor telecommunications systems which are owned or leased by
Government contractors for their own use without first obtaining
the express written approval of the chief executive officer of the
contractor organization (or his designee) and the written opinion of
the General Counsel of the department or agency which is conduct-
ing the monitoring that procedures, such as those contained in sub-
paragraph 6.e., below, have been implemented sufficiently to afford
adequate notice to the contractor organization's employees.
c. The Government shall not monitor for COMSEC purposes the
contents of any telecommunication when such monitoring would
constitute electronic surveillance.
d. In accordance with procedures approved by the Attorney Gen-
eral, information acquired incidentally from Government telecom-
munications during the course of authorized COMSEC monitoring
which relates directly to a significant crime will be referred to the
military commander or law enforcement agency having appropri-
ate jurisdiction. When taking such action, the General Counsel of
the department or agency which is conducting the COMSEC moni-
toring shall be notified promptly. The results of COMSEC monitor-
ing may not be used in a criminal prosecution without prior consul-
tation with the General Counsel of the department or agency
which performed the monitoring.
e. The results of COMSEC monitoring shall not be used to
produce foreign intelligence or counterintelligence, as defined in
Reference e. However, the results of COMSEC monitoring of U.S.
and Allied military exercise communications may be used for exer-
cise intelligence purposes under procedures prescribed in applica-
ble directives.
f. No department or agency may monitor the telecommunications
of another department or agency for COMSEC purposes without
the express prior written approval of a responsible official of the
department or agency to be monitored, except as provided for in
subparagraph 8.b.(2).
g. It is recognized that COMSEC monitoring operations conduct-
ed in a crowded telecommunications environment may result in
the temporary acquisition of private communications. COMSEC
monitoring shall be conducted in accordance with operational pro-
cedures which minimize the possibility that the contents of such
telecommunications will be acquired. Such procedures shall be con-
sistent with the guidelines contained herein and shall be endorsed
by the General Counsel of the department or agency issuing the
procedures.
'" Consent to COMSEC monitoring is required of only one party to a conversation or trans-
mission.
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6. GUIDELINES FOR THE CONDUCT OF COMSEC MONITORING
a. COMSEC monitoring may be undertaken for the following rea-
sons appropriate to the purpose described in paragraph 2., above:
(1) To collect operational signals needed to measure the
degree of security being achieved by U.S. codes, cryptographic
equipment and devices, COMSEC techniques, and related ma-
terials.
(2) To provide a basis from which to assess the types and
value of information subject to loss through intercept and ex-
ploitation of Government telecommunications.
(3) To provide an empirical basis for improving the security
of Government telecommunications against SIGINT exploita-
tion.
(4) To assist in determining the effectiveness of Electronic
Countermeasures/Electronic Counter-Countermeasures (ECM/
ECCM) and cover and deception measures.
(5) To identify Government telecommunication signals that
exhibit unique external signal parameters, signal structures,
modulation schemes, radio fingerprints, etc., that could provide
SIGINT elements of foreign powers the capability to identify
specific targets for subsequent geopositioning and exploitation
purposes.
(6) To provide empirical data to train users of Government
telecommunications systems in proper COMSEC techniques
and measures.
(7) To evaluate the effectiveness of COMSEC education and
training programs.
(8) To train personnel and to test the capability of COMSEC
monitoring equipment.
b. The following categories of telecommunications are not consid-
ered private for purposes of this Instruction. Accordingly, acquisi-
tion of the contents of any communications in these categories
which may occur in the course of locating or examining Govern-
ment telecommunications is not electronic surveillance.
(1) Commercial broadcast radio communications.
(2) Public safety, citizens band, amateur radio, and similar
radio systems licensed by the Government for public use or
access.
(3) Any communications in portions of the electromagnetic
spectrum which are allocated by the Government for its own
use.
c. No incidentally acquired private communication may be moni-
tored beyond the point where a determination can reasonably be
made that it is private. A record of the acquisition may be kept for
signal identification and avoidance purposes; such a record may de-
scribe the signal parameters (frequency, modulation, type, and
timing) but may not identify the contents of the communication.
d. Contents of any private communication may not be deliberate-
ly acquired as part of a procedure for locating, identifying, or moni-
toring a Government communication.
e. Notice of the existince of COMSEC monitoring in conformance
with subparagraph 5.b., above, can be accomplished by any of the
following means or any combination thereof which the legal coun-
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sel of the affected department or agency considers legally sufficient
to achieve proper notification in terms of content, prominence, and
specificity.
(1) Decals placed on the transmitting or receiving devices.
(2) A notice in the daily bulletin or similar medium.
(3) A specific memoradum to users.
(4) A statement on the cover of the official telephone book or
communications directory.
(5) A statement in the standing operating procedures, com-
munications-electronics operating instructions, or similar docu-
ments.
7. CONTROL OF MONITORING RECORDS AND EQUIPMENT
a. All reports, logs, and material produced in the course of
COMSEC monitoring will be afforded protection commensurate
with the classification of the information and the sensitivity of the
monitored activity. Reports or material produced from COMSEC
monitoring which identify security weaknesses of the monitored ac-
tivity will be classified at least confidential and downgraded to un-
classified when security weaknesses are corrected.
b. Interim and final reports may be disseminated only to the
extent necessary for COMSEC purposes except as provided for in
subparagraph 5.d., above. These reports shall not contain any infor-
mation extraneous to COMSEC purposes, or names of individuals
or sufficient data to identify the source except in an official capac-
ity; e.g., "the radio operator on watch." Dissemination controls
should be expressly stated on each report.
c. All COMSEC monitoring recordings and written records, logs,
and notes shall be destroyed as soon as operationally feasible.
d. Except as provided for in subparagraph 5.d., above, no infor-
mation extraneous to COMSEC purposes will be recorded, reported,
noted, logged, or filed. If within the capabilities of COMSEC moni-
toring equipment, any such information that is inadvertently ac-
quired shall be expunged upon recognition. All monitoring records
shall be reviewed for identification and expungement of extraneous
information within a reasonable time after they are created.
e. Access to and dissemination of COMSEC monitoring record-
ings or written records, reports, logs, and notes shall be limited to
that which is necessary for COMSEC purposes. No access to, or dis-
semination of, such materials beyond COMSEC operational ele-
ments shall be allowed until such material is reviewed to deter-
mine that it contains no information extraneous to COMSEC pur-
poses.
f. COMSEC monitoring equipment systems shall be safeguarded
to prevent unauthorized access and use.
8. RESPONSIBILITIES
a. Heads of departments and agencies shall:
(1) Provide for and conduct COMSEC monitoring operations
as they deem appropriate, subject to the provisions of law, ex-
ecutive orders, policy, and this Instruction.
(2) Develop procedures for the conduct of COMSEC monitor-
ing, consistent with the policy and guidelines herein, in col-
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laboration with the Director, NSA. Such procedures shall be
approved by the Attorney General.
b. The Director, NSA shall:
(1) Advise and assist other departments and agencies in es-
tablishing their operating procedures to implement this In-
struction.
(2) Monitor fielded Government cryptography as necessary to
discharge his responsibilities under the National COMSEC Di-
rective, provided that prior notice will be given to the organiza-
tion whose encrypted telecommunications are to be monitored.
No monitoring will be conducted which results in or affords a
substantial likelihood that the plaintext of a communication,
other than short-duration plaintext operator conversations as-
sociated with establishing a secure condition, will be acquired
without the prior approval of the entity whose telecommunica-
tions are to be monitored.
LINCOLN D. FAURER,
Lieutenant General, USAF, Director.
Section 108 contains three subsections. Subsection (a) amends
chapter 205 of title 18 to add a new section 3117. This section pro-
vides that if a court is authorized to issue a warrant or other order
for the installation of a mobile tracking device, such an 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 juris-
diction. It should be noted that, unlike a mobile interception
device, a tracking device may be utilized outside the United States
once the device is installed within the court's jurisdiction. Subsec-
tion (b) of the proposed section contains a definition. "Tracking
device" is defined to mean an electronic or mechanical device
which permits the tracking of the movement of a person or subject.
Subsection (b) of section 108 contains a technical amendment to
amend the table of chapters.
The provisions of this section are intended to permit the installa-
tion of tracking devices which may move from district to district.
The section does not affect the legal standard for the issuance of
orders authorizing the installation of each device. See generally
United States v. Karo, 104 S. Ct. 3296 (1984) (a search warrant not
required where the owner consents to installation); United States v.
Knotts, 460 U.S. 276 (1983) (installation of a beeper on a container
to follow on a public roadway does not violate the Fourth Amend-
ment). The Court in Karo, supra, did find that if investigators used
a beeper to determine whether the beepered object is in a private
location, a warrant is required. See Fishman, Electronic Tracking
Devices and the Fourth Amendment: Knotts, Karo and the Ques-
tions Still Unanswered, 34 CATH. UNIv. L. REV. 277 (1985).
Section 109 adds two new offenses to section 2232 of title 18. The
first new offense is to warn or give notice to a person that they are
the subject of an act of interception under title 18. The elements of
the offense require that the defendant have knowledge 91 that the
federal law enforcement or investigative officer has been author-
ized or has applied for an interception order. The defendant need
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not know that such an application was under a particular chapter
of federal law, rather, only that such application or order was
under federal law. The defendant must engage in conduct of giving
notice of the possible interception to the person who was or is the
subject of the interception. See House Report 96-1396 at 32-36. Fi-
nally, the defendant must be shown to have engaged in such con-
duct with a specific motive such as to obstruct, impede or prevent
the interception. Finally, the offense also includes attempts to
engage in the offense.
The penalty for a violation of this new offense is a possible
prison term of up to five years, a fine under this title, or both.
The second new offense set forth in section 109 is to warn the
subject of an act of electronic surveillance under the Foreign Intel-
ligence Surveillance Act (FISA). The elements of the offense are
identical except that that type of surveillance order is governed by
a different statute (FISA) and that statute authorizes a slightly dif-
ferent type of surveillance activity. The penalties for this offense
are the same as the aforementioned offense.
Section 110 provides a new section 2521 in title 18. This new sec-
tion adds to the existing panoply of criminal and civil remedies by
authorizing the Attorney General to obtain an injunction to pre-
vent felony level violations of this chapter. This provision is mod-
elled after a similar statute (injunctions against fraud) enacted by
Congress in the Comprehensive Crime Control Act of 1984, Public
Law 98-473, see also Senate Report 97-307 at 1267. This section di-
rects the court to proceed as soon as practicable to the hearing and
determination of the matter. This section also provides that prelim-
inary relief can be granted to prevent injury during the pendency
of the action. A proceeding under this section is governed by the
Federal Rules of Civil Procedure (particularly Rule 65). In the
event, however, that an indictment has been returned against the
respondent then discovery by both sides is limited to that permissi-
ble under the Federal Rules of Criminal Procedure.
Section 111 provides the effective date for the amendments made
by this title. Subsection (a) of this section provides the general rule,
that except as provided in subsection (b) the amendments made in
this title take effect 90 days after the date of enactment. In the
case of conduct pursuant to a court order or extension such amend-
ments only apply with respect to court orders or extensions made
after this title takes effect. The exception found in subsection (a) is
written to permit the continuation under the old law rules of inter-
ceptions authorized under such rules. Because ongoing investiga-
tions may involve lengthy interceptions, any new order or exten-
sion of an order made after the general effective date will be gov-
erned by the new law rules.
Subsection (b) of section 111 provides a special rule for state au-
thorization of interceptions. This special effective date rule is nec-
essary because the provisions of chapter 119 of title 18 supersede
previous state laws, to the extent that they exist, with respect to
electronic communications. Under the provisions of chapter 119 the
various states must enact statutes which are at least as restrictive
as the provisions of chapter 119 before they can authorize their
state courts to enter such interception orders. Because of the mas-
sive number of changes made in chapter 119 by this title in rela-
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tion to electronic communication, it seemed appropriate to grant
the states sufficient time to modify their laws accordingly. The spe-
cial rule, in essence, gives the states two years to bring their laws
into conformity with these amendments of chapter 119 of title 18.
It is possible that state laws will not need be changed to accommo-
date revisions on interceptions of wire or oral communications.
Any such changes would also benefit from the two-year delayed ef-
fective date.
TITLE II-STORED AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORD ACCESS
Section 201 amends title 18 by adding a new chapter 121 which
consists of ten new proposed sections. These sections are discussed
below.
Proposed section 2701 provides a new criminal offense. The of-
fense consists of either: (1) intentionally accessing, without authori-
zation, a facility through which an electronic communication serv-
ice is provided or (2) intentionally exceeding the authorization of
such facility. In addition, the offense requires that the offender
must, as a result of such conduct, obtain, alter or prevent unau-
thorized access to a wire or electronic communication while it is in
electronic storage in such a system. The term "electronic storage"
is defined in section 2510(17) of title 18. Electronic storage means
any temporary, intermediate storage of a wire or electronic com-
munication incidental to the electronic transmission thereof and
the storage of such communication by an electronic communication
service for purposes of back-up protection of such communication.
Section 2701(a) makes it an offense intentionally to access with-
out authorization, or to exceed an authorization to access, an elec-
tronic communication service and thereby obtain, alter, or prevent
authorized access to a wire or electronic communication while it is
in electronic storage in such system. This provision addresses the
growing problem of unauthorized persons deliberately gaining
access to, and sometimes tampering with, electronic or wire com-
munications that are not intended to be available to the public.
The Committee recognizes, however, that some electronic commu-
nication services offer specific features, sometimes known as com-
puter "electronic bulletin boards," through which interested per-
sons may communicate openly with the public to exchange comput-
er programs in the public domain and other types of information
that may be distributed without legal constraint.
It is not the Committee's intent to hinder the development or use
of "electronic bulletin boards" or other comparable services. The
Committee believes that where communications are readily accessi-
ble to the general public, the sender has, for purposes of Section
2701(a), extended an "authorization" to the public to access those
communications. A person may reasonably conclude that a commu-
nication is readily accessible to the general public if the telephone
number of the system and other means of access are widely known,
and if a person does not, in the course of gaining access, encounter
any warnings, encryptions, password requests, or other indicia of
intended privacy. To access a communication on such a system
should not be a violation of the law.
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Some communication systems offer a mixture of services some,
such as bulletin boards, which may be readily accessible to the gen-
eral public, while others-such as electronic mail-may be intend-
ed to be confidential. Such a system typically has two or more dis-
tinct levels of security. A user may be able to access electronic bul-
letin boards and the like merely with a password he assigns to him-
self, while access to such features as electronic mail ordinarily en-
tails a higher level of security (i.e., the mail must be addressed to
the user to be accessible specifically). Section 2701 would apply dif-
ferently to the different services. Those wire or electronic commu-
nications which the service provider attempts to keep confidential
would be protected, while the statute would impose no liability for
access to features configured to be readily accessible to the general
public.
Section 2701(a) generally prohibits any person from intentionally
accessing a wire or electronic communication system without au-
thorization or in excess of authorization, and thereby obtaining
access to a wire or electronic communication while it is in electron-
ic storage in the system. An "electronic mail" service, which per-
mits a sender to transmit a digital message to the service's facility,
where it is held in storage until the addressee requests it, would be
subject to Section 2701. A "voice mail" service operates in much
the same way, except that the stored message takes the form of the
sender's voice, usually in digital code. It would likewise be subject
to Section 2701. Similarly, to the extent that a remote computing
service is provided through an Electronic Communication Service,
then such service is also protected.
A person found guilty of this new offense is subject to a maxi-
mum penalt as specified in subsection (b) of proposed section 2701.
Subsection (9) provides a general rule that such an offense is pun-
ishable by a fine of $5,000 or imprisonment of not more than six
months, or both. There are two exceptions to this general rule. If
the offender has acted for purposes of commercial advantage, mali-
cious destruction or damage, or private financial gain, the possible
penalty is escalated to a fine of up to $250,000 and a prison term of
up to one year or both. The second exception is to increase the po-
tential jail term for second or subsequent offenders up to two years
in prison.
In light of the importance of communications generally to inter-
state and foreign commerce, the prevention of unauthorized access
to the systems used for such communication is a legitimate federal
concern. In some instances, unauthorized access to wire or electron-
ic communications is undertaken for purposes of malice or finan-
cial advantage. Other instances, however, arise from the activities
of computer amateurs, often called "hackers," whose goal is pri-
marily the access itself. Still, "hacking" cannot be dismissed as a
harmless prank; a hacker may stumble across sensitive or commer-
cially useful information, and in any event invades the privacy of
those whose communications are stored. It is thus important to
prohibit unauthorized access even if undertaken without a mali-
cious purpose or motive. Section 2701(bXl) does, however, specify
higher penalties for unauthorized access committed for purposes of
commercial advantage, malicious destruction or damage, or private
commercial gain.
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Subsection (c) of proposed section 2701 provides that this section
does not apply with respect to conduct which is authorized by: (1)
the provider of the service; (2) the user of the service; or (3) the pro-
visions of sections 2703 or 2704 of this new chapter.
Proposed section 2702 provides general prohibitions on the disclo-
sure of contents. This proposed section provides that a person or
entity providing electronic communication services to the public
shall not knowingly divulge to any person or entity the contents of
a communication while in electronic storage by that service. This
prohibition is similar to that found in chapter 119 with respect to
the divulgence of a wire or electronic communication during trans-
mission. The term knowingly means that the defendant was aware
of the nature of the conduct, aware of or possessing a firm belief in
the existence of the requisite circumstances and an awareness of or
a firm belief about the substantial certainty of the result. The con-
duct in question is the act of disclosure. The result is that the con-
tents have been provided to another person or entity. The circum-
stances involved are that the person involved provides electronic
communication services to the public and that the contents relate
to a wire or electronic communication. Knowledge as to a circum-
stance includes willful blindness, Model Penal Code section 2.02.
Comment at 129-30 (Tent. Draft No. 4, 1955); United States v.
Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951 (1976). The
concept of "knowingl " does not include, however, "reckless" or
"negligent" conduct. HOUSE REPORT 96-1396 at 33-34 (for a def-
inition of terms). This provision is aimed at proscribing the disclo-
sure of stored wire and electronic communications. Subsection (b)
contains the exceptions to this general rule.
Subsection (aX2) of proposed section 2702 provides that a person
or entity providing remote computing services to the public shall
not knowingly divulge the contents of any communication which is
carried or maintained on that service if certain conditions are met.
The term "contents" as used in section 2702 is intended to encom-
pass the substance, purport, effect or meaning of the communica-
tion. Under this interpretation, a service provider is allowed to di-
vulge mailing lists that identify persons fitting broad demographic
criteria. Unless otherwise authorized, service providers may not di-
vulge to third parties information that profiles the activities of in-
dividual subscribers through the divulgence of the contents of a
communication. The first condition is that the affected communica-
tion must be 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. The second condition is
that the affected communication be solely for the purpose of pro-
viding storage or computer processing services to such subscriber
or customer, so long as 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. The prohibi-
tions of this subsection are also modified by the exceptions in sub-
section (b).
Section 2702(a) protects communications "received by means of
electronic transmission from * * * a subscriber or customer of such
service" and kept "solely for the purpose of providing storage or
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computer processing services to such subscriber or customer
* * `." In the case of either electronic mail or voice mail, the
sender-a user of the service-has necessarily authorized the ad-
dressee's access to the message. The addressee's acquisition of the
message is therefore clearly within the contemplation of section
2701(c). Sometimes the addressee, having requested and received a
message, chooses to leave it in storage on the service for re-access
at a later time. The Committee intends that, in leaving the mes-
sage in storage, the addressee should be considered the subscriber
or user from whom the system received the communication for
storage, and that such communication should continue to be cov-
ered by section 2702(a)(2).
Section 2702(a) generally prohibits the provider of a wire or elec-
tronic communication service to the public from knowingly divulg-
ing the contents of any communication while in electronic storage
by that service to any person other than the addressee or intended
recipient of such communication, or an agent of such addressee or
intended recipient. Similarly, section 2511(3) of title 18, as amend-
ed, prohibits such a provider from divulging the contents of a com-
munication while it is in transmission. Neither provision, however,
nor any other provision in the Act, is intended to affect any other
provision of federal law that prohibits the disclosure of information
on the basis of the content of the information, such as the Fair
Credit Reporting Act.
The application of sections 2701(a) and 2511(3) is limited to pro-
viders of wire or electronic communications services. There are in-
stances, however, in which a person or entity both acts as a provid-
er of such services and also offers other services to the public. In
some such situations, the bill may allow disclosure while another
federal requirement, applicable to the person or entity in another
of its roles, prohibits disclosure. The Committee intends that such
instances be analyzed as though the communication services and
the other services were provided by distinct entities. Where a com-
bined entity in its non-provider role would not be allowed to dis-
close, the appropriate outcome would be non-disclosure.
One example of such an instance could arise under the Fair
Credit Reporting Act, 15 U.S.C. 1681b, which limits the circum-
stances under which consumer reporting agencies may disclose cer-
tain information relating to consumers. An entity may perform a
consumer reporting agency function, and may also provide wire or
electronic communication services to the public. Such an entity
might provide itself with electronic communication services, includ-
ing the storage of data relating to consumers. Sections 2701(a) and
2511(3) have no effect on the entity's role as a consumer reporting
agency, and in that role the entity must comply with the disclosure
limitations of the Fair Credit Reporting Act.
Section 2702(a)(2) prohibits the provider of a remote computing
service to the public from knowingly divulging the contents of any
communication carried or maintained on the service on behalf of,
and received by means of (or created from communications re-
ceived by means of) electronic transmission from a subscriber or
customer of the service, and carried or maintained solely for the
purpose of providing such service to the subscriber or customer.
This provision reflects the rapidly growing importance of informa-
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tion storage and processing to the Nation's commerce. Today, the
subject matter of commerce increasingly is information in electron-
ic form and the processing of information itself has become a major
industry. The secure storage of electronic information has thus
become as important to the commercial system as the protection of
paper records. Accordingly, where an electronic communication is
transmitted by a subscriber or customer to such a service, and is
stored on the subscriber's behalf solely for the purpose of providing
storage or computer processing services to the subscriber, the Com-
mittee intends that the communication-together with the prod-
ucts of any processing that the service performs for the customer-
remain available only to the subscriber and to the persons he desig-
nates, with certain exceptions enumerated in Section 2702(b).
Section 2702 specifies that a person or entity providing wire or
electronic communication service to the public may divulge the
contents of a communication while in electronic storage by that
service with the lawful consent of the originator or any addressee
or intended recipient of such communication. The Committee em-
phasizes that "lawful consent," in this context, need not take the
form of a formal written document of consent. A grant of consent
electronically would protect the service provider from liability for
disclosure under Section 2702. Under various circumstances, con-
sent might be inferred to have arisen from a course of dealing be-
tween the service provider and the customer or subscriber-e.g.,
where a history of transactions between the parties offers a basis
for a reasonable understanding that a consent to disclosure at-
taches to a particular class of communications. Consent may also
flow from a user having had a reasonable basis for knowing that
disclosure or use may be made with respect to a communication,
and having taken action that evidences acquiescence to such disclo-
sure or use-e.g., continued use of such an electronic communica-
tion system. Another type of implied consent might be inferred
from the very nature of the electronic transaction. For example, a
subscriber who places a communication on a computer "electronic
bulletin board," with a reasonable basis for knowing that such
communications are freely made available to the public, should be
considered to have given consent to the disclosure or use of the
communication. If conditions governing disclosure or use are
spelled out in the rules of an electronic communication service, and
those rules are available to users or in contracts for the provision
of such services, it would be appropriate to imply consent on the
part of a user to disclosures or uses consistent with those rules.
Section 2702(a) specifies that a person or entity providing a wire
or electronic communication service or remote computing services
to the public shall not knowingly divulge the contents of any com-
munication while in electronic storage by that service to any
person or entity other than the addressee or intended recipient of
such communication or an agent of such addressee or intended re-
cipient. Under Section 2702(b), disclosure to any other person re-
quires the consent of the originator or any addressee or intended
recipient of the communication. Under some circumstances, howev-
er, a customer of or subscriber to a wire or electronic communica-
tion service may place a communication on the service without
specifying an addressee. The Committee intends, in that situation,
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that the communication at a minimum be deemed addressed to the
service provider for purposes of Section 2702(b). Because an ad-
dressee may consent to the disclosure of a communication to any
other person, a service provider or system operator, as imputed ad-
dressee, may disclose the contents of an unaddressed communica-
tion.
A person may be an "intended recipient" of a communication,
for purposes of Section 2702, even if he is not individually identi-
fied by name or otherwise. A communication may be addressed to
the members of a group, for example. In the case of an electronic
bulletin board, for instance, a communication might be directed to
all members of a previously formed "special interest group" or, al-
ternatively, to all members of the public who are interested in a
particular topic of discussion. In such an instance, the service pro-
vider would not be liable for disclosure to any person who might
reasonably be considered to fall in the class of intended recipients.
Subsection (b) of proposed section 2702 provides six distinct ex-
ceptions to the general limitations on divulgence contained in sub-
section (a). The first exception is with respect to divulgence to an
addressee or intended recipient of a communication or an agent
thereof. Section 2702(b) which places limits on disclosure. In con-
nection with disclosures made pursuant to section 2702(b)(4), these
limitations apply along the agent claim, the second exception is di-
vulgence authorized by statutory provisions in either chapter 119
or this chapter. The third exception is divulgence with the lawful
consent of the originator, addressee, or intended recipient (or sub-
scriber in the case of remote computer service). The fourth excep-
tion is to permit divulgence to a person who is involved in forward-
ing the communication to its destination. The fifth exception per-
mits divulgence necessarily incident to the rendition of such serv-
ices or to the protection of the rights or property of the provider of
the services. The terms "rights" and "property' here refer to such
rights as intellectual property rights, the right to be free from the
theft of services. The term is not intended to be read as to permit a
provider to contract with an unauthorized party an obligation to di-
vulge all stored messages, without notice to or any consent from
the originator of the message, and then to claim that such divul-
gence is to protect the rights in such a contract. The sixth excep-
tion authorizes the divulgence to a law enforcement agency if the
contents of the communication were inadvertently obtained and
appear to pertain to the commission of a crime. This exception is
intended to be read narrowly. A systematic practice of reviewing
stored communications to look for evidence of a crime could not
qualify as inadvertent.
Proposed section 2703 contains the procedural requirements for
the government to obtain access to electronic communications in
storage and transactional records relating thereto. Proposed section
2703 contains four subsections.
Subsection (a) sets forth the requirements which must be met
before the government may obtain access to the contents of a non-
voice wire communication or an electronic communication in stor-
age. As a general rule the government must obtain a search war-
rant. The contents of the voice portion of a wire communication in
storage such as with "voice mail" may not be obtained under this
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section. Under the provisions of chapter 119 of title 18 apply. The
general rule applies to electronic communications which have been
in electronic storage for 180 days or less. The government is, how-
ever, permitted to use alternative means of obtaining access if the
communication has been in storage for more than 180 days. For
this second category of stored records, the government may use an
administrative subpoena authorized by federal or state law or a
federal or state grand jury subpoena or a court order under subsec-
tion (d) of this section, provided that the customer obtains notice.
There is an exception for the notice required for this alternative
means, and that exception is set forth in proposed section 2704.
The Committee required the government to obtain a search war-
rant because it concluded that the contents of a message in storage
were protected by the Fourth Amendment. The reasons for such a
conclusion are set forth more completely earlier in this report. The
Committee recognized that electronically stored communications
can be of two types. The first type of stored communications are
those associated with transmission and incident thereto. The
second type of storage is of a back-up variety. Back up protection
preserves the integrity of the electronic communications system
and to some extent preserves the property of the users of such a
system. Most-if not all-electronic communications systems (such
as electronic mail systems), however, only keep copies of messages
for a few months. To the extent that the record is kept beyond that
point it is closer to a regular business record maintained by a third
party and, therefore, deserving of a different standard of protec-
tion.
Subsection (b) sets forth the procedures the government must use
before it can obtain access to the contents of any electronic commu-
nication held by a provider of remote computing services. The gov-
ernment may proceed using any of three alternative means of
access. The government may, without providing the required notice
to the subscriber or customer, obtain a search warrant. The govern-
ment may also choose to obtain access by giving notice to the sub-
scriber or customer, and using either (a) an administrative sum-
mons authorized by federal or state law or a grand jury subpoena;
or (2) a court order under subsection (d). The requirement that the
state law authorize the use of a grand jury subpoena or administra-
tive summons for purposes of obtaining access to such records-and
the parallel requirement in subsection (d) that a court order be ob-
tained under certain standards-are intended to apply the relevant
state law with respect to the legal standard such officials must
meet with respect to access to those records. Thus, to the extent
that a state law or State Constitution requires that a court order
based on a standard other than relevance be obtained by a state
government official before such official can obtain access to the
type of records protected by this chapter, then that law would pre-
clude the use of the provisions of this section with respect to state
government officials. Thus, state laws such as those found in Colo-
rado, California, New Jersey and Pennsylvania would remain unaf-
fected with respect to access by state government officials. See dis-
cussion of records access, supra. To the extent that such access is
sought by a federal official under the conditions specified under
this section, then state law is overridden by virtue of the Suprema-
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cy Clause. Examples of such federal legal authority include admin-
istrative summons used by the Drug Enforcement Administration,
21 U.S.C. 876, and by the Internal Revenue Service, 26 U.S.C. 7609.
Nothing in this authorization eliminates any notice which may be
required under other laws. See, e.g., 26 U.S. 7609. The notice re-
quired under subsection (b)(1)(B) (i) and (ii) may be dispensed with
if the conditions of section 2704 have been met. The type of records
to which the provisions of subsection (b) apply are set forth in sub-
section (b)(2).
The type of electronic communication held by a remote comput-
ing service which is protected from governmental access is limited
by certain preconditions. The communication must be on behalf of
a subscriber or customer of a remote computing service and such
communication must have been given to the remote computer serv-
ice under narrow conditions. The narrow conditions are that the
communication must have been received in a certain form (i.e. by
means of electronic transmission or similar means). In addition, the
communication must have been surrendered solely for the purpose
of providing storage or computer processing services to the sub-
scriber or customer, and the provider may not be authorized to
access the contents of any such communications for purposes of
providing any services other than storage or computer processing.
Subsection (c) sets forth the rules under which the government
may require the provider of electronic communications services or
remote computing services to disclose a record or other transaction-
al information concerning a subscriber or customer (other than the
contents of a communication). The type of records involved are bill-
ing records and telephone toll records (including the record of long
distance numbers and message unit detailing information). The
government need not provide notice to the subscriber or customer
before it seeks access to these types of records. On the other hand,
the government must use one of three sets of authorized proce-
dures. The government can rely on administrative subpoenas or
grand jury subpoenas to the extent that such processes are legally
authorized. Alternatively, the government can use a search war-
rant. Finally, the government can seek a court order directing the
disclosure of such records. If a court order is sought then the gov-
ernment must meet the procedural requirements of subsection (d).
Subsection (d) provides that the government shows that there is
reason to believe that the contents of an electronic communication,
or the records or other information sought, are relevant to a legiti-
mate law enforcement inquiry. The only contents which can be
sought using the court order option are, of course, those stored for
more than 180 days.
It should be noted that when the government is required to give
notice to the customer or subscriber that the purpose of such notice
is to provide the subscriber or customer with an opportunity to con-
test the propriety of such a disclosure. The customer or subscriber
has standing to raise any legitimate defense to such disclosure in-
cluding any constitutional claims under the First, Fourth, Fifth or
Fourteenth Amendments, any claims of privilege, and any avail-
able defenses to improperly issued subpoenas. Whether any of
these claims are accepted by the court before whom the application
is pending will depend on the facts of a given case and the state of
the law at the time.
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Proposed section 2704 sets forth in four subsections the proce-
dures governing back-up copy preservation.
Subsection (aX1) provides that when the government is seeking
access to remote computing service information on records under
section 2703(bX2) that the government can seek and obtain the as-
sistance of the provider in preserving the information or records
sought. The government may, under this subsection include with
its subpoena or court order a request that the provider create or
generate a back-up copy of the requested records or information.
The provider is directed to create a back-up copy as soon as practi-
cable consistent with its regular business practices. Thus, if a serv-
ice promotor maintains back-up copies as part of its regular busi-
ness activities, it does not have to create a new copy. The provider
is directed not to inform the customer or subscriber of this activity.
After the copy has been made the provider is directed to inform
the governmental entity seeking the copy that it has complied with
the request. Finally, this subsection sets as an outside limit for the
creation of a back-up copy of two business days.
Subsection (a) provides that once the governmental entity has re-
ceived confirmation that it shall notify the customer or subscriber
within three days, unless such notice is delayed under the terms of
proposed section 2704(c). At this point the provider is also free to
notify the subscriber or customer unless prohited under subsection
(b) of proposed section 2705
Subsection (aX3) provides that the provider shall not destroy a
back-up copy generated under this section until the latter of the de-
livery of the information or the resolution of any proceedings relat-
ed to the access question. If the governmental entity has notified
the customer or subscriber and that person has not challenged the
requested access then after the passage of fourteen days the provid-
er may make the disclosure. Subsection (aX5) provides that a gov-
ernmental entity may only seek to require the creation of a back-
up copy under subsection (aX1) if in its sole discretion there is
reason to believe that notification under section 2703 may result in
destruction or tampering with the information sought. This deter-
mination that notification under section 2703 may result in ham-
pering with or destruction of evidence on similar adverse results
by the governmental entity is not subject to challenge by the sub-
scriber or customer or service provider.
Subsection (bXl) of proposed section 2704 provides that within
fourteen days after receipt of notice by the government that a
back-up copy has, been requested the subscriber or customer may
move to quash or vacate. This subsection sets forth the procedural
details of such proceedings. The challenger must service the gov-
ernmental entity and provide written notice to the provider of the
challenge. A motion to vacate shall be made in the court which
issued the original order. Similarly, a motion to quash shall be
made in the appropriate state or federal court. The motion or ap-
plication under this subsection must establish that the challenger
is the relevant customer or subscriber. The challenger must also
set forth reasons why the records being sought are not relevant to
a legitimate law enforcement inquiry or that some other legal
defect exists such as failure by the government to comply with the
requirements of this chapter.
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Subsection (b)(2) sets forth service of process rules. Service under
this section may be made by registered or certified mail to the ap-
propriate governmental entity.
Subsection (b) provides that the government shall be directed to
file a sworn response if the challenger has met the requirements of
this subsection. The governmental response may be filed in camera
if appropriate. If the court cannot on the basis of the initial set of
papers determine the challenge, then additional proceedings may
be conducted. Any additional proceedings and a decision on the
challenge shall occur as rapidly as feasible, i.e. within 7 calendar
days in all but the most unusual circumstances.
Subsection (b)(4) provides that if the court determines that the
challenger is not the subscriber or the customer affected does not
have legal standing to contest the disclosure then the court shall
deny the motion or application. Denial is also directed if the court
finds that the information sought is relevant to the legitimate law
enforcement inquiry. On the other hand, if the challenger has
standing and can show either lack of relevance or non-compliance
with the procedural requirements of this section then the court
may vacate the order or quash the subpoena.
In the event that there is no indictment then the person whose
records are involved may move for the return of the records.
Subsection (b)(5) provides that a court order denying a motion or
application under this section shall not be deemed a final order
and therefore no interlocutory appeal may be taken from such a
denial. Obviously, nothing precludes a customer or subscriber who
is later the subject of a criminal proceeding from raising these
issues again subject to the sanctions limitation of section 2708.
Proposed section 2705 (a) provides the conditions wherein delay of
any required notification may be achieved. Under subsection (a)(1)
a governmental entity may request a delay of notification for a
period of up to 90 days if the governmental entity convinces the
court that there is reason to believe that such notification will
produce adverse results as described in subsection (a)(2) of proposed
section 2704. Alternatively, where an administrative or grand jury
subpoena is obtained, delay may be achieved if a supervisory offi-
cial files a written certification that such delay is necessary to
avoid adverse results. In the second case, the delay in notice can
only last initially for a period of up to 90 days.
Subsection (a)(2) sets forth the adverse results which can trigger
the delay of notification set out in paragraph (1) of this section.
There are five enumerated adverse results: (1) endangering the life
or physical safety of an individual; (2) flight from prosecution; (3)
destruction of or tampering with evidence; (4) intimidation of po-
tential witnesses (including victims of any crimes); and (5) other-
wise seriously jeopardizing an investigation or unduly delaying an
ongoing trial.
Subsection (a)(3) requires the government to maintain a true
copy of the certification required under paragraph (1)(B) of this sec-
tion.
Subsection (aX4) provides that extensions of up to 90 days may be
made of the notification so long as the original requirements of this
section are met with respect to the extension.
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Subsection (aX5) provides that upon the expiration of any period
of delay the governmental entity which has obtained the informa-
tion shall serve upon the customer or subscriber a copy of the proc-
ess used to obtain the information. Service under this subsection
can be by first class or registered mail. In addition, the government
entity must also include a notice that states with reasonable speci-
ficity the nature of the law enforcement inquiry. Such notice shall
also tell the customer or subscriber when the information was fur-
nished, that the notification was delayed, who authorized the delay
and under what provision of law.
Subsection (aX6) defines, for purposes of this subsection, the term
"supervisory official". Such term means the investigative agent or
assistant investigative agent in charge or an equivalent official in
the investigating agency's headquarters or regional office. The
term also means the chief prosecuting attorney or first assistant
prosecuting attorney or an equivalent official in a regional or head-
quarters office.
Subsection (b) of this section provides a procedure for the govern-
ment to preclude the service provider from notify' g the customer
or subscriber in a narrow set of circumstances. First, such preclu-
sion may only be obtained in instances where the government is
not required to notify, or where the government has obtained the
authority to delay notification. Second, a preclusion of notification
must be granted by a court of competent jurisdiction. The final re-
quirement is that the court be convinced that there is reason to be-
lieve that adverse results set forth in subsection (b) will occur if no-
tification is given.
Sections 2702, 2703 and 2704 affect the contents of communica-
tions in storage or where information is being maintained for a
subscriber or customer in a remote computing facility. New tech-
nologies have created capacities for storage of communications and
the single prohibition of interception is not sufficient to cover this
record-type aspect of communication. A person who subscribes to
an electronic mail service may not realize it, but that service likely
maintains a record of all system transactions for a period of time,
usually six months under current industry practice. Even if the
subscriber reads the message and discards or deletes it, the system
maintains it as a backup copy for system maintenance and integri-
ty purposes. These records are retrievable and the Committee in-
tends that subscribers and customers be afforded some protection
as to these records. Therefore, a provider of electronic communica-
tions to the public such as an electronic mail service may not dis-
close the contents of stored communications unless one of the stat-
utory exceptions in 2702(b) apply. One of the exceptions, (bX2), ap-
plies where the government has requested access either under sec-
tion 2703 or 2516.
The Committee has sought to add significant protection to the
provision of remote computing services where the contents of com-
munications are electronically transmitted to such service. In most
instances, records maintained by third parties have no special pri-
vacy or confidentiality protection. The United States Supreme
Court has held that an employer's wage records are not subject to
the assertion of interest by an employee. Donaldson v. U.S, 400
U.S. 517 (1971). Similarly, in Miller v. U.S., 425 U.S. 435, 1976, the
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Court held that an individual has no standing to challenge the dis-
closure to government of records maintained by banks for their
checking account customers. In Donaldson, the records sought were
the wage records of the employer and were not kept or maintained
for the employee. In Miller, the bank customer used the bank as an
agent to facilitate financial transactions. The records of a checking
account were evidence of a public transaction and the disclosure of
them to a grand jury did not violate any constitutional rights of
bank customers.
These cases were studied extensively by the United States Priva-
cy Protection Study Commission and by the Congress. The Report
of the Privacy Protection Study Commission, Personal Privacy in
an Information Society (1977). The Privacy Commission recpm-
mended that individuals have enforceable rights to limit the disclo-
sure of records maintained about them for third parties. The Con-
gress acted upon these recommendations in the financial records
area by enacting the Right to Financial Privacy Act in 1978. 12
U.S.C. 3400 et seq. That statute in overruling Miller requires feder-
al government agencies to use legal process to obtain bank records
and allow the bank customer to seek to quash such process.
Last term the Congress extended this type of record privacy pro-
tection to records maintained by cable operators. In the Cable Com-
munications Privacy Act of 1984, cable companies in the provision
of one-way and two-way services are restricted in the type of infor-
mation they may disclose about subscribers. Public Law 98-549.
Moreover, the legislation, like the Right to Financial Privacy Act,
requires the government to obtain records only through a court
order or legal process with an opportunity to the subscriber to
appear and contest the disclosure of the information.
This Committee is convinced that the subscribers and customers
of remote computing services should be afforded a level of confi-
dence that the contents of records maintained on their behalf for
the purpose of providing remote computing services will not be dis-
closed or obtained by the government, unless certain exceptions
apply or if the government has used appropriate legal process with
the subscribers or customers being given an opportunity to protect
their rights.
Proposed section 2706 contains two subsections. Subsection (a)
provides that a governmental entity obtaining the contents of com-
munications, records or other transactional information under sec-
tion 2702, 2703 (with certain exceptions) or 2704 of this title shall
pay the person or entity providing such information a fee. The fee
under this section shall be reimbursement for such costs as are rea-
sonably necessary and which have been directly incurred in search
for, assembly, reproducing or otherwise providing such informa-
tion. Included in such costs are delivery costs. Also included are
any costs due to the necessary disruption of the normal operations
of a provider.
Subsection (a) exempts from the reimbursement provisions cer-
tain types of records unless the requirement of subsection (c) are
met. The type of records involved are telephone toll records and
telephone listings. These records are excluded, because for the most
part the government has not traditionally paid for such informa-
tion. Nothing in this exclusion, however, affects the government's
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obligation to pay for information through other requests (i.e. re-
quests other than under this chapter). Thus, if a government agent
uses a telephone to request information assistance then compensa-
tion will be due. Similarly any court appearances in connection
with such an information request would be covered elsewhere.
Subsection (b) provides that the amount of the fee provided by
subsection (a) of this section shall be either mutually agreed upon
or determined by the appropriate court. The subsection specifies
which court would be appropriate.
Subsection (c) of proposed section 2703 provides that a court may,
upon the request of a person providing information, request an ap-
propriate court to order reimbursement for payment related to ex-
penses incurred in connection with the searching for, reproducing,
or transporting books, papers, records, or other information or data
required or requested to be produced. See, e.g., 12 U.S.C. 3415. The
provider may obtain such reimbursement if the information re-
quired is voluminous or otherwise causes an undue burden on the
provider. The Committee expects that the Department of Justice
will, by regulation (subject to notice and comment), promulgate
written criteria to guide the parties and the courts with respect to
the meaning of the terms "voluminous" and "undue burden". The
Committee hopes that the uniform application of regulations will
reduce the need to rely on judicial intervention to resolve reim-
bursement disputes. The most important factor to examine is the
nature of current and past practice in this area. To the extent that
the request exceeds the nature and scope of information usually
sought without compensation then the reimbursement provisions
would come into play.
Proposed Section 2707 contains five subsections. Subsection (a)
provides a civil cause of action for any subscriber or customer who
has been aggrieved by a knowing or intentional violation of this
chapter. Recovery may be had under this section against a person
or entity who violated the provisions of this chapter. This includes
governmental entities who have violated the provisions of this
chapter. Relief as may be appropriate may be awarded under this
section but includes preliminary and other equitable relief, declara-
tory relief, damages and reasonable attorney's fees and other litiga-
tion costs reasonably incurred. Subsection (c) provides the measure
of damages under this section. Damages include actual damages,
any lost profits but in no case less than $1,000.
Subsection (d) sets forth defenses to civil actions. This subsection
provides that good faith reliance on a lawful order shall be a com-
plete defense to any civil or criminal action brought under this
chapter or any other law. The types of lawful orders are set forth
as (1) a court warrant or order, a grand jury subpoena, a legislative
authorization, or a statutory authorization, (2) a request of any in-
vestigative or law enforcement officer under section 2518(7); or (3) a
good faith determination that section 2511(3) of this title permitted
the conduct complained of.
Subsection (e) provides the statute of limitations. Under this sub-
section a civil action may not be commenced later than two years
after the date upon which the claimant first discovered or had rea-
sonable opportunity to discover the violation.
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Proposed section 2708 provides that the remedies and sanctions
described in this chapter are the only judicial remedies and sanc-
tions for nonconstitutional violations of this chapter. See discussion
of section 101(e) of the bill, supra.
Proposed section 2709 contains provisions relating to counterin-
telligence access to telephone toll and transactional records. Sub-
section (a) provides that a communications common carrier or an
electronic communication service provider shall comply with a re-
quest made for telephone subscriber information and toll billing
records information or electronic communication transactional
records when such a request is made by the Director of the Federal
Bureau of Investigation under subsection (b) of this section. Subsec-
tion (b) provides that the Director of the FBI (or an individual
within the FBI designated for that purpose by the Director) may
request any such information and records if there is a certification
that the information sought is relevant to an authorized foreign
counterintelligence investigation and that there are specific and ar-
ticulable 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 those terms are defined in the Foreign
Intelligence Surveillance Act of 1978).
Subsection (c) provides that a communications common carrier or
service provider (including officers, employees and agents) shall not
disclose to any person that the FBI has sought or obtained such in-
formation or records.
Subsection (d) provides that the FBI may disseminate informa-
tion and records obtained under this section only as provided in
guidelines approved by the Attorney General for foreign counterin-
telligence collection and foreign counterintelligence investigations
conducted by the FBI, with respect to dissemination to an agency
of the United States. Any disclosure to a United States agency can
only be made if the information is clearly relevant to the author-
ized responsibilities of such agency.
Subsection (e) provides that the Director of the FBI shall fully
inform the House and Senate intelligence committees concerning
all requests made under this section.
Proposed section 2910 contains definitions used in this chapter.
As a general rule, the terms used in this new chapter have the
same definitions as such terms have when used in chapter 119. The
term "remote computing service" means "the provision to the
public of computer storage or processing services by means of any
electronic communication system." Remote computing services is
not intended to apply to computer services offered by the various
telephone company central offices in connection with the routing of
telephone calls (such as speed dialing, call forwarding, and three-
way dialing). Computer storage means all types of electronic or
magnetic storage, including storage in the memory of a computer.
Section 201(b) contains a clerical amendment to amend the table
of chapters to add a new title for chapter 121.
Section 202 of the bill contains the effective date. For this title
and the amendments made by this title, the effective date is 90
days after the date of enactment. In the case of conduct pursuant
to a court order or extension, it will apply only with respect to
court orders or extensions made after this title takes effect.
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This title contains one section and two subsections of the bill.
Section 301(a) adds six new sections to title 18 relating to pen regis-
ters.
Proposed section 3121 contains three subsections. Subsection (a)
contains a general prohibition on pen register use. The subsection
provides that no person shall install or use a pen register without
first obtaining a court order under section 3123 or under the For-
eign Intelligence Surveillance Act.
Subsection (b) contains exceptions to the general list of prohibi-
tions. The subsection provides that the prohibitions do not apply
with respect to the use of a pen register by a provider of electronic
or wire communication service if either of two conditions are met.
The first condition is that such use relates to the operation, main-
tenance, 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 the service or
unlawful use of service.
The second permissible condition for the use of a pen register is
to record the fact that a wire or electronic communication was ini-
tiated or completed in order to protect such provider, another pro-
vider furnishing service toward the completion of the wire commu-
nication, or user of that service, from fraudulent, unlawful or abu-
sive use of service, or with the consent of the user of that service.
Subsection (c) provides that penalty for knowingly violating sub-
section (a). The penalty is a fine under this title or imprisonment of
up to one year, or both.
The absence of any specific civil cause of action for violations of
proposed chapter 206 was purposeful; therefore, no private cause of
action should be implied under this chapter.
Proposed section 3122 provides the procedures for making an ap-
plication for a pen register order. Under subsection (a) an attorney
for the government may make an application for an order or an
extension of an order authorizing or approving the installation and
use of pen registers. The application shall be in writing under oath
or equivalent affirmation to a court of competent jurisdiction. Sub-
section (a)(2) contains parallel provisions with respect to state ap-
plications. The phrase ". . unless otherwise prohibited by State
law" in this subsection makes clear that this law does not preempt
any existing state laws with respect to installation and use of pen
registers by state officials. To the extent that state law currently
provides that a pen register may only be installed or used by a
state official based an some other, higher standard of proof, that
law will continue in effect with respect to such officials. See People
v. Sporleder, 666 P. 2d 135 (Colo. Sup. Ct. 1983); Note, On Privacy,
Pen Registers, and State Constitutions: The Colorado Supreme
Court Rejects Smith v. Maryland, 15 Tol L. Rev. 1466 (1984); People
v. McCunes, 51 Cal. App. 3d 487 (1975). Subsection (b) provides what
-factual details need to be provided in the application. The applica-
tion shall include the identity of the attorney for the federal or
state government and the identity of the applicant making the ap-
plication, and a certification by the applicant that the information
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likely to be obtained is relevant to an ongoing criminal investiga-
tion being conducted by the agency.
Proposed section 3123 contains four subsections. Subsection (a)
provides that upon an application the court shall issue an ex parte
order authorizing the installation and use of a pen register within
the jurisdiction of the court if the court finds that the government
attorney has certified to the court that the information likely to be
obtained by such installation and use is relevant to an ongoing
criminal investigation. This provision does not envision an inde-
pendent judicial review of whether the application meets the rel-
evance standard rather the court needs only to review the com-
pleteness of the submitted certification.
Subsection (b) sets forth the contents of the order for a pen regis-
ter, authorization or installation. The order is required to specify
(1) 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 is
attached; (2) the identity, if known, of the person who is the subject
of the criminal investigation; (3) the number and, if known, physi-
cal location of the telephone line to which the pen register is at-
tached; and (4) a statement of the offense to which the information
likely to be obtained by the pen register relates. In addition, the
order shall direct, upon request, the furnishing of information fa-
cilities and technical assistance necessary to accomplish the instal-
lation of the pen register. The content of the order relating to coop-
eration is intended to codify the existing informal practice of coop-
eration between the telephone companies and the Department of
Justice.
Subsection (c) provides that the time period of authorization of
an installation and use of a pen register is 60 days, with possible
extensions of 60 days.
Subsection (d) provides that an order authorizing or approving
the installation and use of a pen register shall direct that the order
be sealed, until otherwise ordered by the court. In addition, the
order shall bar the disclosure of the existence of a pen register or
an investigation to the listed subscriber, or to any other unauthor-
ized person, unless or until otherwise directed by the court. Inten-
tional violations of the non-disclosure provisions may be, in appro-
priate circumstances, punishable as contempt.
Proposed section 8124 contains two subsections. Subsection (a)
provides that upon the request of an authorized person a provider
of a wire communication service, landlord, custodian, or other
person shall furnish such person with all information, facilities,
and technical assistance necessary to effectuate the order unobtru-
sively and with a minimum of interference. The Committee as-
sumes that the current practice of law enforcement officials install-
ing and maintaining the pen register will continue. Subsection (b)
provides that the persons giving assistance under this section shall
be reasonably compensated for such reasonable expenses incurred
in providing such facilities and assistance. This compensation pro-
vision is modeled after that which applies under chapter 119 of
title 18 and is intended to be interpreted and implemented in a
similar fashion.
Proposed section 9125 provides that the Attorney General shall
annually report to the Congress on the number of pen register
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orders applied for by law enforcement agencies of the Department
of Justice. Under a current order of the Attorney General statistics
concerning pen registers are compiled. Memorandum from Assist-
ant Attorney General, Criminal Division, Department of Justice,
Phillip B. Heyman to all Investigative Agencies, dated Sept. 24,
1979 (Recording the number of investigations, number of persons
affected and nature of the offenses). This section merely requires
that this information be reformulated and submitted to the appro-
priate committees of the Congress. Obviously the greater the detail
contained in these reports the less need there will be for supple-
mental activities. Therefore, it would be helpful to the Committee
if these reports could indicate for which offenses pen registers are
being used.
Proposed section 9126 contains definitions for this chapter. Sub-
section (a) contains the definitions. The term "communications
common carrier" has the same meaning as is found in section 3(h)
of the Communications Act of 1934. The term "wire communica-
tion" has the meaning set forth in section 2510 of this title. The
term "court of competent jurisdiction" means a district court of the
United States (including a magistrate of such court) or a United
States Court of Appeals or a court of general jurisdiction of a State
authorized to enter orders authorizing the use and installation of
pen registers. The term "pen register" means a device which
records or decodes electronic or other impulses which identify the
numbers dialed or otherwise transmitted for purposes of routing
telephone calls, with respect to wire communications, on the tele-
phone line to which such device is attached. The term does not in-
clude the contents of a communication, rather it records the num-
bers dialed. Such term does not include any device used by a pro-
vider of wire communication service for billing, or recording as in-
cident to billing, for communications services provided by such pro-
vider. The term "attorney for the government" has the meaning
given to that term by the Federal Rules of Criminal Procedure.
The term "state" means a State, the District of Columbia, Puerto
Rico, and other possession or territory of the United States.
Subsection (b) of this section contains a clerical amendment
amending the table of chapters.
Section 302 contains the effective date. Subsection (a) provides
that as a general rule the amendments made by this title shall
take effect 90 days after enactment. In addition, in the case of con-
duct pursuant to a court order or extension, these amendments
apply only with respect to court orders or extensions made after
the title takes effect.
Subsection (b) contains special rules or exceptions. This subsec-
tion, in essence, gives states two years to bring their laws into con-
formity with these amendments to federal law.
NEW BUDGET AUTHORITY
In regard to clause (lx3)(B) of rule XI of the Rules of the House of
Representatives, the bill creates no new budget authority or in-
creased tax expenditures for the Federal judiciary.
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INFLATIONARY IMPACT STATEMENT
In regard to clause 2(1X4) of rule XI of the Rules of the House of
Representatives, the commitee feels that the bill will have no fore-
seeable inflationary impact on prices or costs in the operation of
the national economy.
FEDERAL ADVISORY COMMITTEE ACT OF 1972
The Committee finds that this legislation does not create any
new advisory committees within the meaning of the Federal Advi-
sory Committee Act of 1972.
COST ESTIMATE
In compliance with clause 7 of rule XIII of the Rules of the
House of Representatives, the committee estimates that the costs
which will be incurred in carrying out the provisions of the report-
ed bill are accurately reflected in the Congressional Budget Office
estimate.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, June 18, 1986.
Hon. PETER W. RODINO, Jr.,
Chairman, Committee on the Judiciary, House of Representatives,
Rayburn Office Building, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has re-
viewed H.R. 4952, the Electric Communications Privacy Act of
1986, as ordered reported by the House Committee on the Judici-
ary, June 10, 1986. CBO estimates that enactment of this legisla-
tion will result in no significant cost to the federal government and
no cost to state or local governments.
H.R. 4952 makes a number of amendments to Title 18 of the
United States Code concerning access to electronic communica-
tions. Title I of the bill establishes penalties for the unlawful inter-
ception or disclosure of electronic communications, provides for the
recovery of civil damages for persons whose communications are
intercepted, disclosed or used in violation of this provision, and
modifies procedures for government interception of communica-
tions. Title II creates specific penalties for unlawful access to stored
wire and electronic communications, while Title III establishes a
general prohibition on the use of pen registers. These titles include
specific procedures for access to stored communications and use of
pen registers by government entities, and Title II includes a provi-
sion for civil actions.
H.R. 4952 requires government entities to compensate private
parties assembling or providing information concerning stored elec-
tronic communications, 'or assisting in the installation and use of a
pen register. Because such compensation is currently provided in
Department of Justice investigations, CBO does not expect these
provisions to involve any significant additional cost for the federal
government.
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Based on information from the Department of Justice, we do not
expect enactment of this bill to result in a significant change in the
government's law enforcement practices or expenditures. H.R. 4952
would provide a specific foundation in the code for current law en-
forcement efforts the Department is undertaking under other au-
thority.
If you wish further details on this estimate, we will be pleased to
provide them.
With best wishes,
Sincerely,
RUDOLPH G. PENNER, Director.
CHANGES IN EXISTING LAW MADE BY THE BILL, As REPORTED
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be omit-
ted is enclosed in black brackets, new matter is printed in italic,
existing law in which no change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
General provisions .........................................................................................................
Sec.
1
119.
Wire and electronic communications interception and interception of
oral communications ..................................................................
2510
121.
Stored Wire and Electronic Communications and Transactional
Records Access ..............................................................................
2701
CHAPTER 109-SEARCHES AND SEIZURES
? 2232. Destruction or removal of property to prevent seizure
(a) PHYSICAL INTERFERENCE WITH SEARCH.-Whoever, before,
during, or after seizure of any property by any person authorized
to make searches and seizures, in order to prevent the seizure or
securing of any goods, wares, or merchandise by such person,
staves, breaks, throws overboard, destroys, or removes the same,
shall be fined not more than $10,000 or imprisoned more than five
years, or both.
(b) NOTICE OF SEARCH. -Whoever, having knowledge that any
person authorized to make searches and seizures has been author-
ized or is otherwise likely to make a search or seizure, in order to
prevent the authorized seizing or securing of any person, goods,
wares, merchandise or other property, gives notice or attempts to
give notice of the possible search or seizure to any person shall be
fined not more than $10,000 or imprisoned not more than five
years, or both.
(c) NOTICE OF CERTAIN ELECTRONIC SURVEILLANCE.-Whoever,
having knowledge that a Federal investigative or law enforcement
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officer has been authorized or has applied for authorization under
chapter 119 to intercept a wire, oral, or electronic communication, in
order to obstruct, impede, or prevent such interception, gives notice
or attempts to give notice of the possible interception to any person
shall be fined under this title or imprisoned not more than five
years, or both.
Whoever, having knowledge that a Federal officer has been au-
thorized or has applied for authorization to conduct electronic sur-
veillance under the Foreign Intelligence Surveillance Act (50 U.S.C.
1801, et seq.), in order to obstruct, impede, or prevent such activity,
gives notice or attempts to give notice of the possible activity to any
person shall be fined under this title or imprisoned not more than
five years, or both.
CHAPTER 119-WIRE AND ELECTRONIC COMMUNICATIONS
INTERCEPTION AND INTERCEPTION OF ORAL COMMUNI-
CATIONS
Sec.
2510. Definitions.
i K ? t ? * t
2521. Injunction against illegal interception.
? 2510. Definitions
As used in this chapter-
(1) "wire communication" means any [communication]
aural transfer made in whole or in part through the use of fa-
cilities for the transmission of communications by the aid of
wire, cable, or other like connection between the point of
origin and the point of reception (including the use of such con-
nection in a switching station) furnished or operated by any
person engaged [as a common carrier] in providing or operat-
ing such facilities for the. transmission of interstate or foreign
communications or communications affecting interstate or for-
eign commerce, but such term does not include the radio portion
of a cordless telephone communication that is transmitted be-
tween the cordless telephone handset and the base unit;
(2) "oral communication" means any oral communication ut-
tered by a person exhibiting an expectation that such commu-
nication is not subject to interception under circumstances jus-
tifying such expectation, but such term does not include any
electronic communication;
(4) "intercept" means the aural or other acquisition of the
contents of any wire, electronic, or oral communication
through the use of any electronic, mechanical, or other device.
(5) "electronic, mechanical, or other device" means any
device or apparatus which can be used to intercept a wire [or
oral], oral, or electronic communication other than-
(a) any telephone or telegraph instrument, equipment or
facility, or any component thereof, (i) furnished to the sub-
scriber or user by a [communications common carrier]
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provider of wire or electronic communication service in the
ordinary course of its business and being used by the sub-
scriber or user in the ordinary course of its business; or (ii)
being used by a communications common carrier in the or-
dinary course of its business, or by an investigative or law
enforcement officer in the ordinary course of his duties;
t s s s s s s
(8) "contents", when used with respect to any wire [or
oral], oral, or electronic communication, includes any informa-
tion concerning the [identity of the parties to such communi-
cation or the existence,] substance, purport, or meaning of
that communication;
(9) "Judge of competent jursidiction" means-
(a) a judge of a United States district court or a United
States court of appeals; and
(b) a judge of any court of general criminal jurisdiction
of a State who is authorized by a statute of that State to
enter orders authorizing interceptions of wire [or oral],
oral, or electronic communications;
(10) "communication common carrier" shall have the same
meaning which is given the term "common carrier" by section
153(h) of title 47 of the United States Code; [and]
(11) "aggrieved person" means a person who was a party to
any intercepted wire [or oral], oral, or electronic communica-
tion or a person against whom the interception was direct-
ed[.];
(12) "electronic communication" means any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio, electro-
magnetic, photoelectronic or photooptical system that affects
interstate or foreign commerce, but does not include-
(A) the radio portion of a cordless telephone communica-
tion that is transmitted between the cordless telephone
handset and the base unit;
(B) any wire or oral communication;
(C) any communication made through a tone-only paging
device; or
(D) any communication from a tracking device (as de-
fined in section 3117 of this title);
(13) "user" means any person or entity who-
(A) uses an electronic communication service; and
(B) is duly authorized by the provider or such service to
engage in such use;
(14) "electronic communications system" means any wire,
radio, electromagnetic, photooptical or photoelectronic facilities
for the transmission of electronic communications, and any
computer facilities or related electronic equipment for the elec-
tronic storage of such communications;
(15) "electronic communication service" means any service
which provides to users thereof the ability to send or receive
wire or electronic communications;
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(16) "readily accessible to the general public" means, with re-
spect to a radio communication, that such communication is
not-
(A) scrambled or encrypted;
(B) transmitted using modulation techniques whose es-
sential parameters have been withheld from the public
with the intention of preserving the privacy of such commu-
nication;
(C) carried on a subcarrier or other signal subsidiary to a
radio transmission;
(D) transmitted over a communication system provided by
a common carrier, unless the communication is a tone only
paging system communication; or
(E) transmitted on frequencies allocated under part 25,
subpart D, E, or F of part 74, or part .94 of the Rules of the
Federal Communications Commission, unless, in the case of
a communication transmitted on a frequency allocated
under part 74 that is not exclusively allocated to broadcast
auxiliary services, the communication is a two-way voice
communication by radio;
(17) "electronic storage" means-
(A) any temporary, intermediate storage of a wire or elec-
tronic communication incidental to the electronic transmis-
sion thereof, and
(B) any storage of such communication by an electronic
communication service for purposes of backup protection of
such communication; and
(18) "aural transfer" means a transfer containing the human
voice at any point between and including the point of origin
and the point of reception.
? 2511. Interception and disclosure of wire or oral communica-
tions prohibited
(1) Except as otherwise specifically provided in this chapter any
person who-
(a) willfully intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept, any
wire [or oral] oral, or electronic communication;
(b) willfully uses, endeavors to use, or procures any other
person to use or endeavor to use any electronic, mechanical, or
other device to intercept any oral communication when-
(i) such device is affixed to, or otherwise transmits a
signal through, a wire, cable, or other like connection used
in wire communication; or
(ii) such device transmits communications by radio, or
interferes with the transmission of such communication;
or
(iii) such person knows, or has reason to know, that such
device or any component thereof has been sent through
the mail or transported in interstate or foreign commerce;
or
(iv) such use or endeavor to use (A) takes place on the
permises of any business or other commercial establish-
ment the operations of which affect interstate or foreign
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commerce; or (B) obtains or is for the purpose of obtaining
information relating to the operations of any business or
other commercial establishment the operations of which
affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Com-
monwealth of Puerto Rico, or any territory or possession of
the United States;
(c) willfully discloses, or endeavors to disclose, to any other
person the contents of any wire [or oral] oral, or electronic
communication, knowing or having reason to know that the in-
formation was obtained through the interception of a wire [or
oral] oral, or electronic communication in violation of this sub-
section; or
(d) willfully uses, or endeavors to use, the contents of any
wire [or oral] oral, or electronic communication, knowing or
having reason to know that the information was obtained
through the interception of a wire [or oral] oral, or electronic
communication in violation of this subsection; [shall be fined
not more than $10,000 or imprisoned not more than five years,
or both.] shall be punished as provided in subsection (4).
(2XaXi) It shall not be unlawful under this chapter for an opera-
tor of a switchboard, or an officer, employee, or agent of [any com-
munication common carrier,] a provider of wire or electronic com-
munication service, whose facilities are used in the transmission of
a wire communication, to intercept, disclose, or use that communi-
cation in the normal course of his employment while engaged in
any activity which is a necessary incident to the rendition of his
service or to the protection of the rights or property [of the carrier
of such communication: Provides, That said communication
common carriers] of the provider of that service, except that a pro-
vider of wire communication service to the public shall not utilize
service observing or random monitoring except for mechanical or
service qualtiy control checks.
(ii) Notwithstanding an other law, providers of wire or electronic
communication service, communication common carriers, ]their
officers, employees, and agents, landlords, custodians, or other per-
sons, are authorized to provide information facilities, or technical
assistance to persons authorized by law to intercept wire or orall
, oral, or electronic communications or to conduct electronic survei-
lance, as defined in section 101 of the Fore' Intelligence Surveil-
lance Act of 1978, if [the common carrier, such provider its offi-
cers, employees, or agents, landlord, cus , or other specified
person has been provided with-
(A) a court order directing such assistance signed by the au-
thorizing judge, or
(B) a certification in writin by a person specified in section
2518(7) of this title or the Attorney General of the United
States that no warrant or court order is required by law, that
all statutory requirements have been met, and that the specia-
fied assistance is required.
setting forth the period of time during which the provision of the
information, facilities, or technical assistance is authorized and
specif'in the information, facilities, or technical assistance re-
quired. o [communication common carrier] provider of wire or
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electronic communication service officer, employee, or agent there-
of, or landlord, custodian, or other specified person shall disclose
the existence of any interception or surveillance or the device used
to accomplish the interception or surveillance with respect to
which the person has been furnished an order or certification
under this subparagraph, except as may otherwise be required by
legal process and then only after prior notification to the Attorney
General or to the principal prosecuting attorney of a State or any
political subdivision of a State, as may be appropriate. Any viola-
tion of this subparagraph by a [communication common carrier]
provider of wire or electronic communication service or an officer,
employee, or agent thereof; shall render the carrier liable for the
civil damages provided for in section 2520. No cause of action shall
lie in any court against any [communication common carrier]
provider of wire or electronic communication service its officers,
employees, or agents, landlord, custodian, or other specified person
for providing information, facilities, or assistance in accordance
with the terms of an order or certification under this subpara-
graph.
(b) It shall not be unlawful under this chapter for an officer, em-
ployee, or agent of the Federal Communications Commission, in
the normal course of his employment and in discharge of the moni-
toring responsibilities exercised by the Commission in the enforce-
ment of chapter 5 of title 47 of the United States Code, to intercept
a wire or electronic communication, or oral communication trans-
mitted by radio, or to disclose or use the information thereby ob-
tained.
(c) It shall not be unlawful under this chapter for a person acting
under color of law to intercept a wire [or oral], oral, or electronic
communication, where such person is a party to the communica-
tion or one of the parties to the communication has given prior
consent to such interception.
(d) It shall not be unlawful under this chapter for a person not
acting under color of law to intercept a . wire [or oral], oral, or
electronic communication where such person is a party to the com-
munication or where one of the parties to the communication has
given prior consent to such interception unless such communica-
tion is intercepted for the pupose of committing any criminal or
tortious act in violation of the Constitution or laws of the United
States or of any State [or for the purpose of committing any other
injurious act].
(e) Notwithstanding any other provision of this title or section
705 or 706 of the Communications Act of 1934, it shall not be un-
lawful for an office, employee, or agent of the United States in the
normal course of his official duty to conduct electronic surveil-
lance, as defined in section 101 of the Foreign Intelligence Surveil-
lance Act of 1978, as authorized by that Act.
(f) Nothing contained in this chapter or chapter 121, or section
705 of the Communications Act of 1934, shall be deemed to affect
the acquisition by the United States Government of foreign intelli-
gence information from international or foreign communication
[by], or foreign intelligence activities conducted in accordance
with otherwise applicable Federal law involving a foreign electronic
communications system, utilizing a means other than electronic
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surveillance as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, and procedures in this chapter and the
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive
means by which electronic surveillance, as defined in section 101 of
such Act, and the interception of domestic wire and oral communi-
cations may be conducted.
(g) It shall not be unlawful under this chapter or chapter 121 of
this title for any person-
(i) to intercept or access an electronic communication made
through an electronic communication system that is configured
so that such electronic communication is readily accessible to
the general public;
(ii) to intercept any radio communication which is transmit-
ted-
(I) by any station for the use of the general public, or that
relates to ships, aircraft, vehicles, or persons in distress:
(II) by any governmental, law enorrcement, civil defense,
or public safety communications system, including police
and fire, readily accessible to the general public;
(III) by a station operating on a frequency assigned to the
amateur, citizens band, or general mobile radio services; or
(IV) by any marine or aeronautical communications
system;
(iii) to engage in any conduct which-
(I) is prohibited by section 633 of the Communications
Act of 1934; or
(II) is excepted from the application of section 705(a) of
the Communications Act of 1934 by section 705(b) of that
Act;
(iv) to intercept any wire or electronic communication the
transmission of which is causing harmful interference to any
lawfully operating station, to the extent necessary to identify
the source of such interference; or
(v) for other users of the same frequency to intercept any radio
communication made through a common carrier system that
utilizes frequencies monitored by individuals engaged in the
provision or the use of such system, if such communication is
not scrambled encrypted.
(h) It shall not be unlawful under this chapter-
(i) to use a pen register (as that term is defined for the pur-
pose of chapter 206 (relating to pen registers) of this title);
(ii) for a provider of electronic communication service to
record the fact that a wire or electronic communication was ini-
tiated or completed in order to protect such provider, another
provider furnishing service toward the completion of the wire or
electronic communication, or a user of that service, from fraud-
ulent, unlawful or abusive use of such service; or
(iii) to use a device that captures the incoming electronic or
other impulses which identify the numbers of an instrument
from which a wire communication was transmitted.
(3)(A) Except as provided in subparagraph (B) of this paragraph, a
person or entity providing an electronic communication service to
the public shall not willfully divulge the contents of any communi-
cation (other than one to such person or entity, or an agent thereof)
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while in transmission on that service to any person or entity other
than an addressee or intended recipient of such communication or
an agent of such addressee or intended recipient.
(B) A person or entity providing electronic communication service
to the public may divulge the contents of any such communication-
(i) as otherwise authorized in section 2511(2)(a) or 2517 of this
title;
(ii) with the lawful consent of the originator or any addressee
or intended recipient of such communication;
(iii) to a person employed or authorized, or whose facilities
are used, to forward such communication to its destination; or
(iv) which were inadvertently obtained by the service provider
and which appear to pertain to the commission of a crime, if
such divulgence is made to a law enforcement agency.
(4)(a) Except as provided in paragraph (b) of this subsection, who-
ever violates subsection (1) of this section shall be fined under this
title or imprisoned not more than five years, or both.
(b) If the offense is a first offense under paragraph (a) of this sub-
section and is not for a tortious or illegal purpose or for purposes of
direct or indirect commercial advantage or private commercial gain,
and the wire or electronic communication with respect to which the
offense under paragraph (a) is a radio communication, then-
(i) if the communication is not the radio portion of a cellular
telephone communication, the offender shall be fined under this
title or imprisoned not more than one year, or both; and
(ii) if the communication is the radio portion of a cellular
telephone communication, the offender shall be fined not more
than $500 or imprisoned not more than six months, or both.
(c) Conduct otherwise an offense under this subsection that con-
sists of or relates to the interception of a satellite transmission that
is not encrypted or scrambled and that is transmitted to a broad-
casting station for purposes of retransmission to the general public
is not an offense under this subsection unless the conduct is for the
purposes of direct or indirect commercial advantage or private fi-
nancial gain.
? 2512. Manufacture, distribution, possession, and advertising of
wire or oral communication intercepting devices pro-
hibited
(1) Except as otherwise specifically provided in this chapter, any
person who willfully-
(a) sends through the mail, or sends or carries in interstate
or foreign commerce, any electronic, mechanical, or other
device, knowing or having reason to know that the design of
such device renders it primarily useful for the purpose of the
surreptitious interception of wire [or oral], oral, or electronic
communications;
(b) manufactures, assembles, possesses, or sells any electron-
ic, mechanical, or other device, knowing or having reason to
know that the design of such device renders it primarily useful
for the purpose of the surreptitious interception of wire [or
oral], oral, or electronic communications, and that such device
or any component thereof has been or will be sent through the
mail or transported in interstate or foreign commerce; or
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(c) places in any newspaper, magazine, handbill, or other
publication any advertisement of-
(i) any electronic, mechanical, or other device knowing
or having reason to know that the design of such device
renders it primarily useful for the purpose of the surrepti-
tious interception of wire [or oral], oral, or electronic
communications; or
(ii) any other electronic, mechanical, or other device,
where such advertisement promotes the use of such device
for the purpose of the surreptitious interception of wire
[or oral], oral, or electronic communications,
knowing or having reason to know that such advertisement
will be sent through the mail or transported in interstate or
foreign commerce,
shall be fined not more than $10,000 or imprisoned not more than
five years, or both.
(2) It shall not be unlawful under this section for-
(a) [a communications common carrier] a provider of wire
or electronic communication service or an officer, agent, or em-
ployee of, or a person under contract with, [a communications
common carrier] such a provider, in the normal course of the
[communications common carrier's business] business of pro-
viding that wire or electronic communication service, or
(b) an officer, agent, or employee of, or a person under con-
tract with, the United States, a State, or a political subdivision
thereof, in the normal course of the activities of the United
States, a State, or a political subdivision thereof, to send
through the mail, send or carry in interstate or foreign com-
merce, or manufacture, assemble, possess, or sell any electron-
ic, mechanical, or other device knowing or having reason to
know that the design of such device renders it primarily useful
for the purpose of the surreptitious interception of wire [or
oral], oral, or electronic communications.
? 2513. Confiscation of wire [or oral], ora4 or electronic commu-
nication intercepting devices
Any electronic, mechanical, or other device used, sent, carried,
manufactured, assembled, possessed, sold, or advertised in violation
of section 2511 or section 2512 of this chapter may be seized and
forfeited to the United States. All provisions of law relating to (1)
the seizure, summary and judicial forfeiture, and condemnation of
vessels, vehicles, merchandise, and baggage for violations of the
customs laws contained in title 19 of the United States Code, (2) the
disposition of such vessels, vehicles, merchandise, and baggage or
the proceeds from the sale thereof, (3) the remission or mitigation
of such forfeiture, (4) the compromise of claims, and (5) the award
of compensation to informers in respect of such forfeitures, shall
apply to seizures and forfeitures incurred, or alleged to have been
incurred, under the provisions of this section, insofar as applicable
and not inconsistent with the provisions of this section; except that
such duties as are imposed upon the collector of customs or any
other person with respect to the seizure and forfeiture of vessels,
vehicles, merchandise, and baggage under the provisions of the cus-
toms laws contained in title 19 of the United States Code shall be
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performed with respect to seizure and forfeiture of electronic, me-
chanical, or other intercepting devices under this section by such
officers, agents, or other persons as may be authorized or designat-
ed for that purpose by the Attorney General.
? 2515. Prohibition of use as evidence of intercepted wire [or
oral], ora4 or electronic communications
Whenever any wire [or oral], oral, or electronic communication
has been intercepted, no part of the contents of such communica-
tion and no evidence derived therefrom may be received in evi-
dence in any trial, hearing, or other proceeding in or before any
court, grand jury, department, officer, agency, regulatory body, leg-
islative committee, or other authority of the United States, a State,
or a political subdivision thereof if the disclosure of that informa-
tion would be in violation of this chapter.
? 2516. Authorization for interception of wire [or oral], ora4 or
electronic communications
(1) The Attorney General, Deputy Attorney General, Associate
Attorney General, [or] any Assistant Attorney General, any
acting Assistant Attorney General, or any Deputy Assistant Attorney
General in the Criminal Division specially designated by the Attor-
ney General, may authorize an application to a Federal judge of
competent jurisdiction for, and such judge may grant in conformity
with section 2518 of this chapter an order authorizing or approving
the interception of wire or oral communications by the Federal
Bureau of Investigation, or a Federal agency having responsibility
for the investigation of the offense as to which the application is
made, when such interception may provide or has provided evi-
dence of-
(a) any offense punishable by death or by imprisonment for
more than one year under sections 2274 through 2277 of title
42 of the United States Code (relating to the enforcement of
the Atomic Energy Act of 1954), or under the following chap-
ters of this title: chapter 37 (relating to espionage), chapter 105
(relating to sabotage), chapter 115 (relating to treason), or
chapter 102 (relating to riots);
(b) a violation of section 186 or section 501(c) of title 29,
United States Code (dealing with restrictions on payments and
loans to labor organizations), or any offense which involves
murder, kidnapping, robbery, or extortion, and which is pun-
ishable under this title;
(c) any offense which is punishable under the following sections
of this title: section 201 (bribery of public officials and witnesses),
section 224 (bribery in sporting contests), subsection (d), (e), (f), (g),
(h), or (i) of section 844 (unlawful use of explosives), section 1084
(transmission of wagering information), section 751 (relating to
escape), sections 1503, 1512, and 1513 (influencing or injuring an of-
ficer, juror, or witness generally), section 1510 (obstruction of crimi-
nal investigations), section 1511 (obstruction of State or local law
enforcement), section 1751 (Presidential and Presidential staff as-
sassination, kidnapping, and assault), section 1951 (interference
with commerce by threats or violence), section 1952 (interstate and
foreign travel or transportation in aid of racketeering enterprises),
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section 1952A (relating to use of interstate commerce facilities in the
commission of murder for hire), section 1952B (relating to violent
crimes in aid of racketeering activity), section 1954 (offer, accept-
ance, or solicitation to influence operations of employee benefit
plan), section 1955 (prohibition of business enterprises of gambling),
section 659 (theft from interstate shipment), section 664 (embezzle-
ment from pension and welfare funds), section 1343 (fraud by wire,
radio, or television), section 2252 or 2253 (sexual exploitation of
children), sections 2251 and 2252 (sexual exploitation of children),
sections [2314] 2812, 2313, 2914, and 2315 (interstate transporta-
tion of stolen property), the second section 2320 (relating to traffick-
ing in certain motor vehicles or motor vehicle parts), section 1209
(relating to hostage taking), section 1029 (relating to fraud and re-
lated activity in connection with access devices), section 3146 (relat-
ing to penalty for failure to appear), section 3521(b)(3) (relating to
witness relocation and assistance), section 82 (relating to destruction
of aircraft or aircraft facilities), section 1963 (violations with re-
spect to racketeer influenced and corrupt organizations), section
115 (relating to threatening or retaliating against a Federal offi-
cial), the section in chapter 65 relating to destruction of an energy
facility, and section 1841 (relating to mail fraud), or section 351
(violations with respect to congressional, Cabinet, or Supreme
Court assassination, kidnapping, and assault);
(d) any offense involving counterfeiting punishable under section
471, 472, or 473 of this title;
(e) any offense involving fraud connected with a case under title
11 or the manufacture, importation, receiving, concealment,
buying, sellu , or otherwise dealing una rotany ic law oaf the or other dangerous drugs, punishable
States;
(f) any offense including extortionate credit transactions under
sections 892, 893, or 894 of this title;
(g) a violation of section 5322 of title 31, United States Code
(dealing with the reporting of currency transactions); or]
(h) any felony violation of sections 2511 and 251 (relating to
interception and disclosure of certain communications and to cer-
tain devices) of this title;
(i) the location of any fugitive from justice from an offense de-
scribed in this section, or
[[(h)] (j) any conspiracy to commit any of the foregoing offenses.
(2) The principal prosecuting attorney of any State, or the princi-
pal prosecuting attorney of any political subdivision thereof, if such
attorney is authorized b a statute of that State to make applica-
tion to a State court judge of competent jurisdiction for an order
authorizing or approving the interception of wire [or oral], oral,
or electronic communications, may apply to such judge for, and
such judge may grant in conformity with section 2518 of this chap-
ter and with the applicable State statute an order authorizing, or
approving the interception of wire [or oral], 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 deal-
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ing 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 au-
thorize an application to a Federal judge of competent jurisdiction
for, and such judge may grant, in conformity with section 2518 of
this title, an order authorizing or approving the interception of elec-
tronic communications by an investigative or law enforcement offi-
cer 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 any Federal felony.
? 2517. Authorization for disclosure and use of intercepted wire
[or oral], 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 [or oral], oral, or electronic communication,
or evidence derived therefrom, may disclose such contents to an-
other investigative or law enforcement officer to the extent that
such disclosure is appropriate to the proper performance of the offi-
cial 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 [or oral], 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 [or oral], 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 politi-
cal subdivision thereof.
(4) No otherwise privileged wire [or oral], 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 en-
gaged in intercepting wire or oral communications in the manner
authorized herein, intercepts wire [or oral], 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 evi-
dence derived therefrom may be used under subsection (3) of this
section when authorized or approved by a judge of competent juris-
diction where such judge finds on subsequent application that the
contents were otherwise intercepted in accordance with the provi-
sions of this chapter. Such application shall be made as soon as
practicable.
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? 2518. Procedure for interception of wire [or oral], ora4 or elec-
tronic communications
(1) Each application for an order authorizing or approving the
interception of a wire [or oral], oral, or electronic communication
under this chapter shall be made in writing upon oath or affirma-
tion to a judge of competent jurisdiction and shall state the appli-
cant's authority to make such application. Each application shall
include the following information:
(a) the identity of the investigative or law enforcement offi-
cer making the application, and the officer authorizing the ap-
plication;
(b) a full and complete statement of the facts and circum-
stances relied upon by the applicant, to justify his belief that
an order should be issued, including (i) details as to the par-
ticular offense that has been, is being, or is about to be com-
mitted, (ii) except as provided in subsection (11), a particular de-
scription 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, com-
mitting the offense and whose communications are to be inter-
cepted;
(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 intercep-
tion is required to be maintained. If the nature of the investi-
gation is such that the authorization for interception should
not automatially terminate when the described type of commu-
nication 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 [or oral],
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 tes-
timony 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 inteception of
wire [or oral], oral, or electronic communications within the terri-
torial 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) after within the territorial jurisdiction of the
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court in which the judge is sitting, 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 communi-
cations 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 [or oral], 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 [or oral], oral, or electronic communication under this chap-
ter shall specify-
(a) the identity of the person, if known, whose communica-
tions are to be intercepted;
(b) the nature and location of the communications facilities
as to which, or the place where, authority to intercept is grant-
ed;
(c) a particular description of the type of communication
sought to be intercepted, and a statement of the particular of-
fense 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 au-
thorized, including a statement as to whether or not the inter-
ception shall automatically terminate when the described com-
munication has been first obtained.
An order authorizing the interception of a wire [or oral], oral, or
electronic communication under this chapter shall, upon request of
the applicant, direct that a [communication common carrier,] pro-
vider of 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 carrier, landlord, custodian, or person is
according the person whose communications are to be intercepted.
Any communication common carrier, landlord, custodian or other
person furnishing such facilities or technical assistance shall be
compensated therefor by the applicant [at the prevailing rates.]
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 [or oral], oral, or electronic communi-
cation for any period longer than is necessary to achieve the objec-
tive 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
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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 sec-
tion and the court making the findings required by subsection (3) of
this section. The period of extension shall be no longer than the au-
thorizing 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 au-
thorization 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 ob-
jective, or in any event in thirty days. In the event the intercepted
communications is in a code or foreign lang , and an expert in
that foreign language or code is not reasonably aevailable during the
interception period, minimization may be accomplished as soon as
practicable after such interception. An interception under this chap-
ter may be conducted in whole or in part by Government personnel,
or by an individual operating under a contract with the Govern-
ment, acting under the supervision of an investigative or law en-
forcement officer authorized to conduct the interception.
(6) Whenever an order authorizing interception is entered pursu-
ant 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 in-
tervals as the judge may require.
(7) Notwithstanding any other provision of this chapter, any in-
vestigative or law enforcement officer, specially designated by the
Attorney General, the Deputy Attorney General, the Ase ciate At-
torney 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 se-
curity interest, or
(iii) conspiratorial activities characteristic of organized
crime,
that requires a wire [or oral], oral, or electronic communica-
tion to be intercepted before an order authorizing such inter-
ception 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 [or oral], oral, or electronic communica-
tion 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
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is terminated without an order having been issued, the contents of
any wire [or oral], oral, or electronic communication intercepted
shall be treated as having been obtained in violation of this chap-
ter, 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 [or oral], oral, or electronic com-
munication 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 [or oral], oral,
or electronic communication under this subsection shall be done in
such a way as will protect the recording from editing or other al-
terations. Immediately upon the expiration of the period of the
order, or extensions thereof, such recordings shall be made avail-
able to the judge issuing such order and sealed under this direc-
tions. 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. Dupli-
cate 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 sub-
section, or a satisfactory explanation for the absence thereof, shall
be a prerequisite for the use or disclosure of the contents of any
wire [or oral], oral, or electronic communication or evidence de-
rived 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 pun-
ished 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 appli-
cation, and such other parties to intercepted communications as
the judge may determine in his discretion that is in the interest of
justice, an 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, ap-
proved or disapproved interception, or the denial of the appli-
cation; and
(3) the fact that during the period wire [or oral], 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 serv-
ing of the inventory required by this subsection may be postponed.
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(9) The contents of any wire [or oral], oral, or electronic commu-
nication 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 than 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
or oral communication intercepted pursuant to this chapter, or evi-
dence 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 grant-
ed, the contents of the intercepted wire or oral communication, or
evidence derived therefrom, shall be treated as having been ob-
tained 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 at-
torney 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 pros-
ecuted.
(c) The remedies and sanctions described in this chapter with re-
spect 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)(bXii) and (B)(d) of this sec-
tion relating to the specification of the facilities from which, or the
place where, the communication is to be intercepted do not apply
if-
(i) in the case of an application with respect to the intercep-
tion of an oral communication-
(I) the application is by a Federal investigative or law en-
forcement officer and is approved by the Attorney General,
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the Deputy Attorney General, the Associate Attorney Gener-
al an Assistant Attorney General, or an acting Assistant
Attorney General;
(II) the application contains a full and complete state-
ment as to why such specification is not practical and iden-
tifies the person committing the offense and whose commu-
nications are to be intercepted; and
(III) the judge finds that such specification is not practi-
cal; and
(ii) in the case of an application with respect to a wire or elec-
tronic communication-
(I) the application is by a Federal investigative or law en-
forcement officer and is approved by the Attorney General,
the Deputy Attorney General, the Associate Attorney Gener-
al, an Assistant Attorney General, or an acting Assistant
Attorney General;
(II) 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 pur-
pose, on the part of that person, to thwart interception by
changing facilities; and
(III) the judge finds that such purpose has been ade-
quately shown.
(12) An interception of a communication under an order with re-
spect to which the requirements of subsections (1XbXii) 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 communica-
tion is to be intercepted is ascertained by the person implementing
the interception order.
? 2519. Reports concerning intercepted wire [or oral], 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(1XbXii) and 2518(3Xd) 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 ap-
plied 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 exten-
sion or an order;
(f) the identity of the applying investigative or law enforce-
ment 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
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the principal prosecuting attorney of a State, or the principal pros-
ecuting 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 communica-
tions intercepted, (iii) the approximate number of persons
whose communications were intercepted, and (iv) the approxi-
mate nature, amount, and cost of the manpower and other re-
sources used in the interceptions;
(c) the number of arrests resulting from interceptions made
under such order or extension, and the offenses for which ar-
rests 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;
(0 the number of convictions resulting from such intercep-
tions and the offenses for which the convictions were obtained
and a general assessment of the importance of the intercep-
tions; 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 [or oral],
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 sec-
tion. 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
[Any person whose wire or oral communication is intercepted,
disclosed, or used in violation of this chapter shall (1) have a civil
cause of action against any person who intercepts, discloses, or
uses, or procures any other person to interecept, disclose, or use
such communications, and (2) be entitled to recover from any such
person-
[(a) actual damages. but not less than liquidated damages- com-
puted at the rate of $100 a day for each day of violation or $1,000,
whichever is higher;
[(b) punitive damages; and
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[(c) a reasonable attorney's fee and other litigation costs reason-
ably incurred.
A good faith reliance on a court order or legislative authorization
shall constitute a complete defense to any civil or criminal action
brought under this chapter or under any other law.]
?2520. Recovery of civil damages authorized
(a) IN GENERAL. -Any person whose wire, oral, or electronic com-
munication is intercepted, disclosed, or willfully 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 in-
cludes-
(1) such preliminary and other equitable or declaratory relief
as may be appropariate;
(2) damages under subsection (c) and punitive damages in ap-
propriate cases; and
(3) a reasonable attorney's fee and other litigation costs rea-
sonably incurred.
(c) COMPUTATION OF DAMAGES.-The court may assess as damages
in an action under this section whichever is the greater of-
(1) the sum of the actual damages suffered by the plaintiff
and any profits made by the violator as a result of the viola-
tion; or
(2) 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 legisla-
tive 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 provision of law.
(e) LIMITATION. A civil action under this section may not be com-
menced 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 viola-
tion 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 deter-
miniation of such an action, and may, at any time before final de-
termination, enter such a restraining order or prohibition, or take
such other action, as is warranted to prevent a continuing and sub-
stantial injury to the United States or to any person or class of per-
sons 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 respond-
ent, discovery is governed by the Federal Rules of Criminal Proce-
dure.
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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 facil-
ity;
and thereby obtains, alters, or prevents authorized access to a wire
or electronic communications 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 subsec-
tion (a) of this section is-
(1) if the offense is committed for purposes of commercial ad-
vantage, malicious destruction or damage, or private commer-
cial 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 of-
fense 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 com-
munications service;
(2) by a user of that service with respect to a communication
of or intended for that user; or
(3) in section 2703 or 2704 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
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the contents of any communication which is carried or main-
tained on that service-
(A) on behalf of, and received by means of electronic
transmission from (or created by means of computer proc-
essing of communications received by means of electronic
transmission from), a subscriber or customer of such serv-
ice; 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 communica-
tion or an agent of such addressee or intended recipient;
(2) as otherwise authorized in section 2516, 2511(2)(a), or 2703
of this title;
(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 serv-
ice 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 a
non-voice wire communication or an electronic communication, that
is in electronic storage in an electronic communications system for
180 days or less, only pursuant to a warrant issued under the Feder-
al Rules of Criminal Procedure or equivalent State warrant. A gov-
ernmental entity may require the disclosure by a provider of elec-
tronic communications services of the contents of an electronic com-
munication that has been in electronic storage in an electronic com-
munications system for more than 180 days by the means available
under subsection (b) of this section.
(b) CONTENTS OF ELECTRONIC COMMUNICATIONS IN A REMOTE
COMPUTING SERVICE.-(1) A governmental entity may require a pro-
vider of remote computing service to disclose the contents of any
electronic communication to which this paragraph is made applica-
ble 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 war-
rant; or
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(B) with prior notice from the governmental entity to the sub-
scribe or customer if the governmental entity-
(i) uses an administrative subpoena authorized by a Fed-
eral or State statute or a Federal or State grand jury sub-
poena; or
(ii) obtains a court order for such disclosure under subsec-
tion (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 com-
munication that is held or maintained on that service-
(A) on behalf of, and received by means of electronic trans-
mission 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 serv-
ice; and
(B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the provid-
er is not authorized to access the contents of any such communi-
cations for purposes of providing any services other than storage
or computer processing.
(c) RECORDS CONCERNING ELECTRONIC COMMUNICATIONS SERVICE
OR REMOTE COMPUTING SERVICE A governmental entity may re-
quire a provider of electronic communications service or remote com-
puting service to disclose a record or other information pertaining to
a subscriber to or customer of such service (not including the con-
tents of communications covered by subsection (a) or (b) of this sec-
tion) without required notice to the subscriber or customer if the
governmental entity-
(1) uses an administrative subpoena authorized by a Federal
or State statute, or a Federal or State grand jury subpoena;
(2) obtains a warrant issued under the Federal Rules of
Criminal Procedure or equivalent State warrant; or
(3) obtains a court order for such disclosure under subsection
(d) of this section.
(d) REQUIREMENTS FOR COURT ORDER.-A court order for disclo-
sure under subsection (b) or (c) of this section shall issue only if the
governmental entity shows that there is reason to believe the con-
tents of a wire or electronic communication, or the records or other
information sought, are relevant to a legitimate law enforcement in-
quiry. In the case of a State governmental authority, such a court
order shall not issue if prohibited by the law of such State.
2704. Backup preservation
(a) BACKUP PRESERVATION.-(1) A governmental entity acting
uinder section 2703(b)(2) may include in its subpoena or court order
a requirement that the service provider to whom the request is di-
rected create a backup copy of the contents of the electronic commu-
nications sought in order to preserve those communications. Without
notifying the subcriber or customer of such subpoena or court order,
such service provider shall create such backup copy as soon as prac-
ticalbe consistent with its regular business practices and shall con-
firm to the governmental entrity that such backup copy has been
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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 gov-
ernmental entity within three days after receipt of such confirma-
tion, 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 re-
questing governmental entity no sooner than 14 days after the gov-
ernmental entity's notice to the subscriber or customer if such serv-
ice provider-
(A) has not received notice from the subscriber or customer
that the subscriber or customer has challenged the governmen-
tal entity's request; and
(B) has not initiated proceedings to challenge the request of
the government 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 dis-
cretion 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 determiantion is not subject to challenge by the
subscriber or customer or service provider.
(b) CUSTOMER CHALLENGES.-(1) Within 14 days after notice by
the governmental entity to the subscriber or customer under subsec-
tion (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 United States
district 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 communica-
tions 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 t overnmental
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 had complied with para-
graphs (1) and (2) of this subsection, the court shall order the gov-
ernmental entity to file a sworn response, which may be filed in
camera if the governmental entity includes in its response the rea-
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sons 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 proceed-
ings shall be completed and the motion or applications decided as
soon as practicable after the filing of the governmental entity's re-
sponse.
(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 ap-
plication and order such process enforced. If the court finds that the
applicant is the subscriber or customer for whom the communica-
tions 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 sec-
tion shall not be deemed a final order and no interlocutory appeal
may be taken therefrom by the customer.
92705. 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 90 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 Feder-
al 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 90 days upon the execu-
tion a written certification of a supervisory official that there is
reason to believe that notification of the existence of the subpoe-
na may have an adverse result described in paragraph (2) of
this subsection.
(2) An adverse resut for the purposes of paragraph (1) of this sub-
section 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.
(9) The governmental entity shall maintain a true copy of certifi-
cation under paragraph (1)(B).
(4) Extensions of the delay of notification provided in section 2703
of up to 90 days each may be granted by the court upon application,
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or by certification by a governmental entity, but only in accordance
with subsection (b) or (c) of this section.
(5) Upon expiration o 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 custom-
er or subscriber a copy of the process or request together with notice
that-
(A) states with reasonable specificity the nature of the law en-
forcement inquiry; and
(B) informs such customers or subscriber-
(s) that information maintained for such customer or sub-
scriber byte service provider named in such process or re-
quest was supplied to or requested by that governmental au-
thority 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 certifica-
tion 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"
mans the investigtive 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 com-
manding 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 result 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 rea-
sonably necessary and which have been directly incurred in search-
ing for, assembling, reproducing, or otherwise providing such infor-
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mation. Such reimbursable costs shall include any costs due to nec-
essary disruption of normal operations of any electronic communica-
tion 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 informa-
tion).
(c) The requirement of subsection (a) of this section does not apply
with respect to records or other information maintained by a com-
munications 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 volu-
minous in nature or otherwise caused an undue burden on the pro-
vider.
?2707. Civil Action
(a) CAUSE of ACTION. 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 vio-
lation 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 (3); and
(3) a reasonable attorney's fee and other litigation costs rea-
sonably 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 vio-
lation, 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 legisla-
tive 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 com-
menced later than two years after the date upon which the claimant
first discovered or had a reasonable opportunity to discover the vio-
lation.
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?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 Communications common carrier or an
electronic communication service provider shall comply with a re-
quest made for telephone subscriber information and toll billing in-
formation, or electronic communication transactional records made
by the Director of the Federal Bureau of Investigation under subsec-
tion (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 carrier or provider to
which the request is made that-
(1) the information sought is relevant to an authorized for-
eign counterintelligence investigation; and
(2) there are specific and articulable facts giving reason to be-
lieve 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 communications
common carrier or service provider, or officer, employee, or agent
thereof, shall disclose to any person that the Federal Bureau of In-
vestigation has sought or obtained access to information or records
under this section.
(d) DISSEMINATION BY BUREAU.-The Federal Bureau of Investiga-
tion may disseminate information and records obtained under this
section only as provided in guidelines approved by the Attorney Gen-
eral for foreign intelligence collection and foreign counterintelli-
gence investigations conducted by the Federal Bureau of Investiga-
tion, 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 IN-
FORMED.-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 re-
quests 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, respec-
tively, 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.
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Chap.
Sec.
201. General provisions
206. Pen Registers ........................................................................................................... 3121
Sec.
3101. Effect of rules of court-Rules.
3117. Motile tracking devices.
d 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
Sec.
8121. General prohibition on pen register use; exception.
3122. Application for an order for a pen register.
3123. Issuance of an order for a pen register.
3124. Assistance in installation and use of a pen register.
3125. Reports concerning pen registers.
3121. General prohibition on pen register use, exception
(a) IN GENERAL.-Except as provided in this section, no person
may install or use a pen register without first obtaining a court
order under section 3123 of this title or under the Foreign Intelli-
gence 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 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, an-
other 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 or the
user of that service.
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(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
(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 under this chapter, in writing under oath or equiv-
alent affirmation, to a court of competent jurisdiction.
(2) Unless prohibited by State law, a State investigative or law en-
forcement 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 under this cha ter, in
writing under oath or equivalent affirmation, to a court of compe-
tent 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 appli-
cation and the identity of the law enforcement agency conduct-
ing 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
(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 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 is to be attached;
(B) the identity, if known, of the person who is the sub-
ject of the criminal investigation;
(C) the number and, if known, physical location of the
telephone line to which the pen register is to be attached;
and
(D) a statement of the offense to which the information
likely to be obtained by the pen register relates; and
(2) shall direct, upon the request of the applicant, the furnish-
ing of information, facilities, and technical assistance necessary
to accomplish the installation of the pen register 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 for
a period not to exceed 60 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
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the judicial finding required by subsection (a) of this section. The
period of extension shall be for a period not to exceed 60 days.
(d) NONDISCLOSURE OF EXISTENCE OF PEN REGISTER. An order
authorizing or approving the installation and use of a pen register
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 reg-
ister is attached, or who has been ordered by the court to pro-
vide assistance to the applicant, not disclose the existence of the
pen register or the existence of the investigation to the listed
subscriber, or to any other person, unless or until otherwise or-
dered by the court.
3124. Assistance in installation and use of a pen register
(a) IN GENERAL.-Upon the request of an attorney for the govern-
ment or an officer of a law enforcement agency authorized to install
and use a pen register under this chapter, a provider of wire com-
munication service, landlord, custodian, or other person shall fur-
nish such investigative or law enforcement officer forthwith all in-
formation, facilities, and technical assistance necessary to accom-
plish the installation of the pen register unobtrusively and with a
minimum of interference with the services that the person so or-
dered by the court accords the party with respect to whom the in-
stallation 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) COMPENSATION. A provider of wire communication service,
landlord, custodian, or other person who furnishes facilities or tech-
nical assistance pursuant to this section shall be reasonably com-
pensated for such reasonable expenses incurred in providing such fa-
cilities and assistance.
3125. Reports concerning pen registers
The Attorney General shall annually report to Congress on the
number of pen register orders applied for by law enforcement agen-
cies of the Department of Justice.
3126. Definitions for chapter
As used in this chapter-
(1) the term "communications common carrier" has the mean-
ing set forth for the term "common carrier" in section 3(h) of
the Communications Act of 1934 (47 U.S.C. 153(h));
(2) the term "wire communication" has the meaning set forth
for such term in section 2510 of this title;
(3) the term "court of competent jurisdiction" means-
(A) a district court of the United States (including a mag-
istrate of such a court) or a United States Court of Appeals;
or
(B) a court of general criminal jurisdiction of a State au-
thorized by the law of that State to enter orders authoriz-
ing the use of a pen register;
(4) the term `pen register" means a device which records or
decodes electronic or other impulses which identify the numbers
dialed or otherwise transmitted, with respect to wire communi-
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cations, on the telephone line to which such device is attached,
but such term does not include any device used by a provider of
wire communication service for billing, or recording as an inci-
dent to billing, for communications services provided by such
provider; and
(5) the term "attorney for the Government" has the meaning
given such term for the purposes of the Federal Rules of Crimi-
nal 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.
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