Privacy: An Overview of the Electronic Communications Privacy Act

Privacy: An Overview of the Electronic Communications Privacy Act
Privacy: An Overview of the
Electronic Communications Privacy Act
Charles Doyle
Senior Specialist in American Public Law
October 9, 2012
Congressional Research Service
7-5700
www.crs.gov
R41733
CRS Report for Congress
Prepared for Members and Committees of Congress
Privacy: An Overview of the Electronic Communications Privacy Act
Summary
This report provides an overview of federal law governing wiretapping and electronic
eavesdropping under the Electronic Communications Privacy Act (ECPA). It also appends
citations to state law in the area and the text of ECPA.
It is a federal crime to wiretap or to use a machine to capture the communications of others
without court approval, unless one of the parties has given his prior consent. It is likewise a
federal crime to use or disclose any information acquired by illegal wiretapping or electronic
eavesdropping. Violations can result in imprisonment for not more than five years; fines up to
$250,000 (up to $500,000 for organizations); civil liability for damages, attorneys’ fees and
possibly punitive damages; disciplinary action against any attorneys involved; and suppression of
any derivative evidence. Congress has created separate, but comparable, protective schemes for
electronic communications (e.g., email) and against the surreptitious use of telephone call
monitoring practices such as pen registers and trap and trace devices.
Each of these protective schemes comes with a procedural mechanism to afford limited law
enforcement access to private communications and communications records under conditions
consistent with the dictates of the Fourth Amendment. The government has been given narrowly
confined authority to engage in electronic surveillance, conduct physical searches, and install and
use pen registers and trap and trace devices for law enforcement purposes under ECPA and for
purposes of foreign intelligence gathering under the Foreign Intelligence Surveillance Act.
This report appears as a part of a larger piece, which includes a discussion of the Foreign
Intelligence Surveillance Act and is entitled CRS Report 98-326, Privacy: An Overview of
Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by Gina Stevens and
Charles Doyle. Each of the two is available in an abridged form without footnotes, quotations,
attributions of authority, or appendices, i.e., CRS Report R41734, Privacy: An Abridged
Overview of the Electronic Communications Privacy Act, by Charles Doyle, and CRS Report 98327, Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic
Eavesdropping, by Gina Stevens and Charles Doyle.
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Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 1
Title III: Prohibitions ....................................................................................................................... 7
Illegal Wiretapping and Electronic Eavesdropping ................................................................... 7
Person.................................................................................................................................. 7
Intentional ........................................................................................................................... 8
Jurisdiction .......................................................................................................................... 8
Interception ......................................................................................................................... 9
Content .............................................................................................................................. 10
By Electronic, Mechanical, or Other Device .................................................................... 11
Wire, Oral, or Electronic Communications....................................................................... 12
Endeavoring to Intercept ................................................................................................... 13
Exemptions: Consent Interceptions................................................................................... 13
Exemptions: Publicly Accessible Radio Communications ............................................... 15
Exemptions: Government Officials................................................................................... 15
Exemptions: Communication Service Providers............................................................... 16
Domestic Exemptions ....................................................................................................... 17
Illegal Disclosure of Information Obtained by Wiretapping or Electronic
Eavesdropping...................................................................................................................... 17
Illegal Use of Information Obtained by Unlawful Wiretapping or Electronic
Eavesdropping...................................................................................................................... 20
Shipping, Manufacturing, Distributing, Possessing or Advertising Wire, Oral, or
Electronic Communication Interception Devices................................................................. 21
Title III: Government Access......................................................................................................... 24
Law Enforcement Wiretapping and Electronic Eavesdropping............................................... 24
Title III: Consequences of a Violation ........................................................................................... 29
Criminal Penalties ............................................................................................................. 29
Civil Liability .................................................................................................................... 31
Civil Liability of the United States.................................................................................... 32
Administrative Action ....................................................................................................... 32
Attorney Discipline ........................................................................................................... 32
Exclusion of Evidence....................................................................................................... 34
Stored Communications Act (SCA)............................................................................................... 35
SCA: Prohibitions.................................................................................................................... 35
SCA: Government Access ....................................................................................................... 40
SCA: Consequences ................................................................................................................ 45
Pen Registers and Trap and Trace Devices (PR/T&T) .................................................................. 46
PR/T&T: Prohibitions.............................................................................................................. 46
PR/T&T: Government Access ................................................................................................. 48
PRT&T: Consequences............................................................................................................ 49
Electronic Communications Privacy Act (Text). ........................................................................... 50
Chapter 119 (“Title III”) .......................................................................................................... 50
18 U.S.C. 2510. Definitions. ............................................................................................. 50
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18 U.S.C. 2511. Interception and disclosure of wire, oral, or electronic
communications prohibited............................................................................................ 52
18 U.S.C. 2512. Manufacture, distribution, possession, and advertising of wire,
oral, or electronic communication intercepting devices prohibited. .............................. 55
18 U.S.C. 2513. Confiscation of wire, oral, or electronic communication
interception devices........................................................................................................ 56
18 U.S.C. 2515. Prohibition of use as evidence of intercepted wire or oral
communications. ............................................................................................................ 56
18 U.S.C. 2516. Authorization for interception of wire, oral, or electronic
communications. ............................................................................................................ 56
18 U.S.C. 2517. Authorization for disclosure and use of intercepted wire, oral, or
electronic communications............................................................................................. 59
18 U.S.C. 2518. Procedure for interception of wire, oral, or electronic
communications. ............................................................................................................ 60
18 U.S.C. 2519. Reports concerning intercepted wire, oral, or electronic
communications. ............................................................................................................ 64
18 U.S.C. 2520. Recovery of civil damages authorized.................................................... 65
18 U.S.C. 2521. Injunction against illegal interception. ................................................... 66
18 U.S.C. 2522. Enforcement of the Communications Assistance for Law
Enforcement Act. ........................................................................................................... 66
Chapter 121 (“Stored Communications Act”) ......................................................................... 66
18 U.S.C. 2701. Unlawful access to stored communications............................................ 66
18 U.S.C. 2702. Voluntary disclosure of customer communications or records. .............. 67
18 U.S.C. 2703. Required disclosure of customer communications or records................ 68
18 U.S.C. 2704. Backup preservation. .............................................................................. 70
18 U.S.C. 2705. Delayed notice. ....................................................................................... 71
18 U.S.C. 2706. Cost reimbursement................................................................................ 72
18 U.S.C. 2707. Civil action. ............................................................................................ 72
18 U.S.C. 2708. Exclusivity of remedies. ......................................................................... 73
18 U.S.C. 2709. Counterintelligence access to telephone toll and transactional
records............................................................................................................................ 73
18 U.S.C. 2711. Definitions for chapter. ........................................................................... 75
18 U.S.C. 2712. Civil Action against the United States. ................................................... 75
Chapter 206 (“Pen Register and Trap and Trace Devices”) .................................................... 76
18 U.S.C. 3121. General prohibition on pen register and tape and trace device
use; exception................................................................................................................. 76
18 U.S.C. 3122. Application for an order for a pen register or a trap and trace
device. ............................................................................................................................ 76
18 U.S.C. 3123. Issuance of an order for a pen register or a trap and trace device........... 77
18 U.S.C. 3124. Assistance in installation and use of a pen register or a trap and
trace device. ................................................................................................................... 78
18 U.S.C. 3125. Emergency pen register and trap and trace device installation............... 79
18 U.S.C. 3126. Reports concerning pen registers and trap and trace devices. ................ 79
18 U.S.C. 3127. Definitions for chapter............................................................................ 79
Appendixes
Appendix A. State Statutes Outlawing the Interception of Wire(w), Oral(o) and Electronic
Communications(e) .................................................................................................................... 81
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Appendix B. Consent Interceptions Under State Law ................................................................... 82
Appendix C. Statutory Civil Liability for Interceptions Under State Law .................................... 83
Appendix D. Court Authorized Interception Under State Law...................................................... 84
Appendix E. State Statutes Regulating Stored Electronic Communications (SE), Pen
Registers (PR) and Trap and Trace Devices (T) ......................................................................... 85
Appendix F. State Computer Crime Statutes ................................................................................. 86
Contacts
Author Contact Information........................................................................................................... 86
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Privacy: An Overview of the Electronic Communications Privacy Act
Introduction
This is an outline of the Electronic Communications Privacy Act (ECPA).1 ECPA consists of three
parts. The first, sometimes referred to as Title III, outlaws the unauthorized interception of wire,
oral, or electronic communications.2 It also establishes a judicial supervised procedure to permit
such interceptions for law enforcement purposes.3 The second, the Stored Communications Act,
focuses on the privacy of, and government access to, stored electronic communications.4 The
third creates a procedure for governmental installation and use of pen registers as well as trap and
trace devices.5 It also outlaws such installation or use except for law enforcement and foreign
intelligence investigations.6
Background
At common law, “eavesdroppers, or such as listen under walls or windows, or the eaves of a
house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a
1
Portions of this report draw upon a series of earlier reports, no longer available, entitled: Wiretapping and Electronic
Surveillance: A Brief Discussion of Pertinent Supreme Court Cases, A Summary and Compilation of Federal State
Statutes, and a Selected Legal Bibliography (1970); Wiretapping and Electronic Surveillance: A Brief Discussion of
Pertinent Supreme Court Cases, A Summary and Compilation of Federal State Statutes, and a Selected Legal
Bibliography (1971); Wiretapping and Electronic Surveillance: Federal and State Statutes (1974); Taps and Bugs: A
Compilation of Federal and State Statutes Governing the Interception of Wire and Oral Communications (1981); The
Interception of Communications: A Legal Overview of Bugs and Taps (1988); Wiretapping & Electronic Surveillance:
The Electronic Communications Privacy Act and Related Matters (1992); Taps, Bugs & Telephony: An Overview of
Federal Statutes Governing Wiretapping and Electronic Eavesdropping (1998); Privacy: An Overview of Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2001); id. (2003); id. (2006); id. (2009). It constitutes
the ECPA portion of a separate report that includes a discussion of the Foreign Intelligence Surveillance Act (FISA),
CRS Report 98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping.
As used in this report “electronic eavesdropping” refers to the use of hidden microphones, recorders and any other
mechanical or electronic means of capturing ongoing communications, other than wiretapping (tapping into telephone
conversations). In previous versions of this report and other earlier writings, it was common to use a more neutral, and
consequently preferred, term—electronic surveillance—at least when referring to law enforcement use. Unfortunately,
continued use of the term “electronic surveillance” rather than “electronic eavesdropping” risks confusion with forms
of surveillance that either have individualistic definitions (e.g., “electronic surveillance” under the Foreign Intelligence
Surveillance Act, 50 U.S.C. 1801(f)), involve surveillance that does not capture conversation (e.g., thermal imaging or
electronic tracking devices), or may or may not capture conversation (e.g., the coverage of video surveillance depends
upon the circumstances and the statutory provision question).
Related developments are discussed in CRS Report R42725, Reauthorization of the FISA Amendments Act; CRS
Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015; CRS
Report R40980, Government Collection of Private Information: Background and Issues Related to the USA PATRIOT
Act Reauthorization; CRS Report 97-1025, Cybercrime: An Overview of the Federal Computer Fraud and Abuse
Statute and Related Federal Criminal Laws, by Charles Doyle; CRS Report RL33424, Government Access to Phone
Calling Activity and Related Records: Legal Authorities; CRS Report RL30677, The Communications Assistance for
Law Enforcement Act, by Patricia Moloney Figliola; and CRS Report RL34693, Online Data Collection and
Disclosure to Private Entities: Selected Federal Laws and Self-Regulatory Regimes, by Kathleen Ann Ruane.
2
18 U.S.C. 2510-2522. This part of ECPA was originally enacted as Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. 2510-2520 (1964 ed,)(Supp. IV).
3
Id.
4
18 U.S.C. 27-1-2712.
5
18 U.S.C. 3121-3127.
6
18 U.S.C. 3121.
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common nuisance and presentable at the court-leet; or are indictable at the sessions, and
punishable by fine and finding of sureties for [their] good behavior.”7 Although early American
law proscribed common law eavesdropping, the crime was little prosecuted and by the late
nineteenth century had “nearly faded from the legal horizon.”8 With the invention of the telegraph
and telephone, however, state laws outlawing wiretapping or indiscretion by telephone and
telegraph operators preserved the spirit of the common law prohibition in this country.
Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of
government secrets during World War I.9 Later, it proscribed intercepting and divulging private
radio messages in the Radio Act of 1927,10 but did not immediately reestablish a federal wiretap
prohibition. By the time of the landmark Supreme Court decision in Olmstead, however, at least
forty-one of the forty-eight states had banned wiretapping or forbidden telephone and telegraph
employees and officers from disclosing the content of telephone or telegraph messages or both.11
Olmstead was a Seattle bootlegger whose Prohibition Act conviction was the product of a federal
wiretap. He challenged his conviction on three grounds, arguing unsuccessfully that the wiretap
evidence should have been suppressed as a violation of either his Fourth Amendment rights, his
Fifth Amendment privilege against self-incrimination, or the rights implicit in the Washington
state statute that outlawed wiretapping.
For a majority of the Court, writing through Chief Justice Taft, Olmstead’s Fourth Amendment
challenge was doomed by the absence of “an official search and seizure of his person, or such a
seizure of his papers or his tangible material effects, or an actual physical invasion of his house or
curtilage12 for the purposes of making a seizure.”13
7
4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 169 (1769).
8
“Eavesdropping is indictable at the common law, not only in England but in our states. It is seldom brought to the
attention of the courts, and our books contain too few decisions upon it to enable an author to define it with
confidence.... It never occupied much space in the law, and it has nearly faded from the legal horizon.” 1 BISHOP,
COMMENTARIES ON THE CRIMINAL LAW, 670 (1882).
9
40 Stat.1017-18 (1918)(“whoever during the period of governmental operation of the telephone and telegraph systems
of the United States ... shall, without authority and without the knowledge and consent of the other users thereof, except
as may be necessary for operation of the service, tap any telegraph or telephone line ... or whoever being employed in
any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any
person not duly authorized or entitled the receive the same, shall be fined not exceeding $1,000 or imprisoned for not
more than one year or both”); 56 Cong.Rec. 10761-765 (1918).
10
44 Stat. 1172 (1927)(“ ... no person not being authorized by the sender shall intercept any message and divulge or
publish the contents, substance, purpose, effect, or meaning of such intercepted message to any person ... ”).
11
Olmstead v. United States, 277 U.S. 438, 479-80 n.13 (1928)(Brandeis, J., dissenting). Olmstead is remembered most
today for the dissents of Holmes and Brandeis, but for four decades it stood for the view that the Fourth Amendment’s
search and seizure commands did not apply to government wiretapping accomplished without a trespass onto private
property.
12
Curtilage originally meant the land and buildings enclosed by the walls of a castle; in later usage it referred to the
barns, stables, garden plots and the like immediately proximate to a dwelling; it is understood in Fourth Amendment
parlance to describe that area which “harbors those intimate activities associated with domestic life and the privacies of
the home,” United States v. Dunn, 480 U.S. 294, 301 n.4 (1987).
13
277 U.S. at 466. Olmstead had not been compelled to use his phone and so the Court rejected his Fifth Amendment
challenge. 277 U.S.C. at 462. Any violation of the Washington state wiretap statute was thought insufficient to warrant
the exclusion of evidence, 277 U.S. at 466-68. Justice Holmes in his dissent tersely characterized the conduct of federal
wiretappers as “dirty business,” 277 U.S. at 470. The dissent of Justice Brandeis observed that the drafters of the
Constitution “conferred as against the Government, the right to be let alone—the most comprehensive of rights and the
(continued...)
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Chief Justice Taft pointed out that Congress was free to provide protection which the Constitution
did not.14 Congress did so in the 1934 Communications Act by expanding the Radio Act’s
proscription against intercepting and divulging radio communications so as to include
intercepting and divulging radio or wire communications.15
The Federal Communications Act outlawed wiretapping, but it said nothing about the use of
machines to surreptitiously record and transmit face to face conversations.16 In the absence of a
statutory ban the number of surreptitious recording cases decided on Fourth Amendment grounds
surged and the results began to erode Olmstead’s underpinnings.17
Erosion, however, came slowly. Initially the Court applied Olmstead’s principles to the electronic
eavesdropping cases. Thus, the use of a dictaphone to secretly overhear a private conversation in
an adjacent office offended no Fourth Amendment precepts because no physical trespass into the
office in which the conversation took place had occurred.18 Similarly, the absence of a physical
trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly
recorded his conversation with a defendant held in a commercial laundry in an area open to the
public.19 On the other hand, the Fourth Amendment did reach the government’s physical intrusion
upon private property during an investigation, as for example when they drove a “spike mike”
into the common wall of a row house until it made contact with a heating duct for the home in
which the conversation occurred.20
The spike mike case presented something of a technical problem, because there was some
question whether the spike mike had actually crossed the property line of the defendant’s town
house when it made contact with the heating duct. The Court declined to rest its decision on the
technicalities of local property law, and instead found that the government’s conduct had intruded
upon privacy of home and hearth in a manner condemned by the Fourth Amendment.21
(...continued)
right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government against
privacy of the individual whatever the means employed, must be deemed in violation of the Fourth Amendment,” 277
U.S. at 478-79.
14
“Congress may of course protect the secrecy of telephone messages by making them, when intercepted inadmissible
in evidence in federal criminal trials, by direct legislation,” 277 U.S. at 465.
15
48 Stat. 1103-104 (1934), 47 U.S.C. 605 (1940 ed.). The Act neither expressly condemned law enforcement
interceptions nor called for the exclusion of wiretap evidence, but it was read to encompass both, Nardone v. United
States, 302 U.S. 379 (1937); Nardone v. United States, 308 U.S. 321 (1939).
16
Section 605 did ban the interception and divulgence of radio broadcasts but it did not reach the radio transmission of
conversations that were broadcast unbeknownst to all of the parties to the conversation. Late in the game, the FCC
supplied a partial solution when it banned the use of licensed radio equipment to overhear or record private
conversation without the consent of all the parties involved in the conversation, 31 Fed. Reg. 3400 (March 4, 1966),
amending then 47 C.F.R. §§2.701, 15.11. The FCC excluded “operations of any law enforcement offices conducted
under lawful authority,” id.
17
The volume of all Fourth Amendment cases calling for Supreme Court review increased dramatically after Mapp v.
Ohio, 367 U.S. 643 (1961), acknowledged the application of the Fourth Amendment exclusionary rule to the states.
18
Goldman v. United States, 316 U.S. 129 (1942).
19
On Lee v. United States, 343 U.S. 747 (1952).
20
Silverman v. United States, 365 U.S. 505 (1961).
21
“The absence of a physical invasion of the petitioner’s premises was also a vital factor in the Court’s decision in
Olmstead v. United States.... In holding that the wiretapping there did not violate the Fourth Amendment, the Court
noted that the insertions were made without trespass upon any property of the defendants. They were made in the
basement of the large office building. The taps from house lines were made in the streets near the houses. 277 U.S. at
(continued...)
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Each of these cases focused upon whether a warrantless trespass onto private property had
occurred, that is, whether the means of conducting a search and seizure had been so unreasonable
as to offend the Fourth Amendment. Yet in each case, the object of the search and seizure had
been not those tangible papers or effects for which the Fourth Amendment’s protection had been
traditionally claimed, but an intangible, a conversation. This enlarged view of the Fourth
Amendment could hardly be ignored, for “[i]t follows from ... Silverman ... that the Fourth
Amendment may protect against the overhearing of verbal statements as well as against the more
traditional seizure of papers and effects.”22
Soon thereafter the Court repudiated the notion that the Fourth Amendment’s protection was
contingent upon some trespass to real property in Katz v. United States.23 Katz was a bookie
convicted on the basis of evidence gathered by an electronic listening and recording device set up
outside the public telephone booth that Katz used to take and place bets. The Court held that the
gateway for Fourth Amendment purposes stood at that point where an individual should to able to
expect that his or her privacy would not be subjected to unwarranted governmental intrusion.24
One obvious consequence of Fourth Amendment coverage of wiretapping and other forms of
electronic eavesdropping is the usual attachment of the Amendment’s warrant requirement. To
avoid constitutional problems and at the same time preserve wiretapping and other forms of
electronic eavesdropping as a law enforcement tool, some of the states established a statutory
(...continued)
457. There was no entry of the houses or offices of the defendants. 277 U.S. at 464. Relying upon these circumstances,
the Court reasoned that the intervening wires are not part of (the defendant’s) house or office any more than are the
highways along which they are stretched. 277 U.S. at 465.
“Here, by contrast, the officers overheard the petitioners’ conversations only by usurping part of the petitioners’ house
or office—a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that
was effected without their knowledge and without their consent. In these circumstances we need not pause to consider
whether or not there was a technical trespass under the local property law relating to party walls. Inherent Fourth
Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law . . . .
“The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the
right of a man to retreat into his own home and there be free from unreasonable governmental intrusion ... This Court
has never held that a federal officer may without warrant and without consent physically entrench into a man’s office or
home, there secretly observe or listen, and relate at the man’s subsequent criminal trial what was seen or heard.
“A distinction between the dictaphone employed in Goldman and the spike mike utilized here seemed to the Court of
Appeals too fine a one to draw. The court was unwilling to believe that the respective rights are to be measured in
fractions of inches. But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of
local law. It is based upon the reality of an actual intrusion into a constitutionally protected area. What the Court said
long ago bears repeating now: It may be that it is the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight
deviations from legal modes of procedure. Boyd v. United States, 116 U.S. 616, 635. We find no occasion to reexamine Goldman here, but we decline to go beyond it, by even a fraction of an inch,” 365 U.S. at 510-12 (internal
quotation marks omitted).
22
Wong Sun v. United States, 371 U.S. 471, 485 (1963).
389 U.S. 347 (1967).
24
“We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions
that the trespass doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in
electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied
while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth
Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of
the booth can have no constitutional significance.” Later courts seem to prefer the “expectation of privacy” language
found in Justice Harlan’s concurrence: “My understanding of the rule that has emerged from prior decisions is that
there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and,
second, that the expectation be one that society is prepared to recognize as reasonable,” 389 U.S. at 361.
23
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system under which law enforcement officials could obtain a warrant, or equivalent court order,
authorizing wiretapping or electronic eavesdropping.
The Court rejected the constitutional adequacy of one of the more detailed of these state statutory
schemes in Berger v. New York.25 The statute was found deficient because of its failure to require:
•
a particularized description of the place to be searched;
•
a particularized description of the crime to which the search and seizure related;
•
a particularized description of the conversation to be seized;
•
limitations to prevent general searches;
•
termination of the interception when the conversation sought had been seized;
•
prompt execution of the order;
•
return to the issuing court detailing the items seized; and
•
any showing of exigent circumstances to overcome the want of prior notice.26
Berger helped persuade Congress to enact Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, a comprehensive wiretapping and electronic eavesdropping statute that not
only outlawed both activities in general terms but that also permitted federal and state law
enforcement officers to use them under strict limitations designed to meet the objections in
Berger.27
A decade later another Supreme Court case persuaded Congress to supplement Title III with a
judicially supervised procedure for the use of wiretapping and electronic eavesdropping in foreign
intelligence gathering situations. When Congress passed Title III there was some question over
the extent of the President’s inherent powers to authorize wiretaps—without judicial approval—in
national security cases. As a consequence, the issue was simply removed from the Title III
scheme.28
After the Court held that the President’s inherent powers were insufficient to excuse warrantless
electronic eavesdropping on purely domestic threats to national security,29 Congress considered it
prudent to augment the foreign intelligence gathering authority of the United States with the
Foreign Intelligence Security Act of 1978 (FISA).30 The FISA provides a procedure for judicial
review and authorization of electronic surveillance and other forms of information gathering for
foreign intelligence purposes.
25
388 U.S. 41 (1967).
26
388 U.S. at 58-60.
27
87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.).
18 U.S.C. 2511(3)(1970 ed.)(“Nothing contained in this chapter or in section 605 of the Communications Act ... shall
limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation
against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information
deemed essential to the security of the United States, or to protect national security information against foreign
intelligence activities ... ”).
29
United States v. United States District Court, 407 U.S. 297 (1972).
30
92 Stat. 1783, 50 U.S.C. 1801-1862.
28
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Two other Supreme Court cases influenced the development of federal law in the area. In United
States v. Miller,31 the Court held that a customer had no Fourth Amendment protected expectation
of privacy in the records his bank created concerning his transactions with them. These third party
records were therefore available to the government under a subpoena duces tecum rather than a
more narrowly circumscribed warrant.32 In Smith v. Maryland,33 it held that no warrant was
required for the state’s use of a pen register or trap and trace device, if the device merely
identified the telephone numbers for calls made and received from a particular telephone. No
Fourth Amendment search or seizure occurred, the Court held, since the customer had no
justifiable expectation of privacy in information which he knew or should have known the
telephone company might ordinarily capture for billing or service purposes.34
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA).35 ECPA consists
of three parts: a revised Title III;36 the Stored Communications Act (SCA);37 and provisions
governing the installation and use of pen registers as well as trap and trace devices.38 Congress
has adjusted the components of ECPA and FISA, over the years. It has done so sometimes in the
interests of greater privacy; sometimes in the interest of more effective law enforcement or
foreign intelligence gathering; often with an eye to some combination of those interests.
Prominent among its enactments are:
•
the USA PATRIOT Act; 39
•
the Intelligence Authorization Act for Fiscal Year 2002;40
•
the 21st Century Department of Justice Appropriations Authorization Act;41
•
the Department of Homeland Security Act;42
•
the USA PATRIOT Improvement and Reauthorization Act;43 and
•
the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
(2008 FISA Amendments Act).44
31
425 U.S. 435, 441-43 (1976).
Id. at 44-45.
33
442 U.S. 735, 741-46 (1979).
34
Id. In United States v. New York Telephone Co., the Court held that the Title III did not apply to the use of pen
registers and that federal courts had the power to authorize their installation for law enforcement purposes, 434 U.S.
157, 168 (1977).
35
100 Stat. 1848 (1986).
36
18 U.S.C. 2510-2522.
37
18 U.S.C. 2701-2712.
38
18 U.S.C. 3121-3126.
39
P.L. 107-56, 115 Stat. 272 (2001).
40
P.L. 107-108, 115 Stat. 1394 (2001).
41
P.L. 107-273, 116 Stat. 1758 (2002).
42
P.L. 107-296, 116 Stat. 2135 (2002).
43
P.L. 109-177, 120 Stat. 192 (2006).
44
P.L. 110-261, 122 Stat. 2436 (2008).
32
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Title III: Prohibitions
In Title III, ECPA begins the proposition that unless provided otherwise, it is a federal crime to
engage in wiretapping or electronic eavesdropping; to possess wiretapping or electronic
eavesdropping equipment; to use or disclose information obtained through illegal wiretapping or
electronic eavesdropping; or to disclose information secured through court-ordered wiretapping
or electronic eavesdropping, in order to obstruct justice.45
Illegal Wiretapping and Electronic Eavesdropping
First among these is the ban on illegal wiretapping and electronic eavesdropping that covers:
•
any person who
•
intentionally
•
intercepts, or endeavors to intercept,
•
wire, oral, or electronic communications
•
by using an electronic, mechanical, or other device
•
unless the conduct is specifically authorized or expressly not covered, e.g.
•
one of the parties to the conversation has consented to the interception,
•
the interception occurs in compliance with a statutorily authorized (and
ordinarily judicially supervised) law enforcement or foreign intelligence
gathering interception,
•
the interception occurs as part of providing or regulating communication
services,
•
certain radio broadcasts, and
•
in some places, spousal wiretappers.46
Person
The prohibition applies to “any employee, or agent of the United States or any State or political
subdivision thereof, and any individual, partnership, association, joint stock company, trust, or
corporation.”47
45
18 U.S.C. 2511. Elsewhere, federal law proscribes: unlawful access to stored communications, 18 U.S.C. 2701;
unlawful use of a pen register or a trap and trace device, 18 U.S.C. 3121; and abuse of eavesdropping and search
authority or unlawful disclosures under the Foreign Intelligence Surveillance Act, 50 U.S.C. 1809, 1827.
46
18 U.S.C. 2511(1).
47
18 U.S.C. 2510(6). Although the governmental entities are not subject to criminal liability, as noted infra, some
courts believe them subject to civil liability under 18 U.S.C. 2520; Smoot v. United Transportation Union, 246 F.3d
633, 640-41 (6th Cir. 2001).
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Intentional
Conduct can only violate Title III if it is done “intentionally,” inadvertent conduct is no crime; the
offender must have done on purpose those things which are outlawed.48 He need not be shown to
have known, however, that his conduct was unlawful.49
Jurisdiction
Subsection 2511(1) contains two interception bars—one, 2511(1)(a), simply outlaws intentional
interception; the other, 2511(1)(b), outlaws intentional interception when committed under any of
five jurisdictional circumstances with either an implicit or explicit nexus to interstate or foreign
commerce.50 Congress adopted the approach because of concern that its constitutional authority
might not be sufficient to ban instances of electronic surveillance that bore no discernable
connection to interstate commerce or any other of Congress’s enumerated constitutional powers.
So it enacted a general prohibition, and as a safety precaution, a second provision more tightly
tethered to specific jurisdictional factors.51 The Justice Department has honored that caution by
48
“In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee
changed the state of mind requirement under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 from
‘willful’ to ‘intentional,’” S.Rept. 541, at 23 (1986); “This provision makes clear that the inadvertent interception of a
protected communication is not unlawful under this Act,” H.Rept. 99-647, at 48-9 (1986). See, e.g., In re Pharmatrak,
Inc., 329 F.3d 9, 23 (1st Cir. 2003); Sanders v. Robert Bosch Corp., 38 F.3d 736, 742-43 (4th Cir. 1994); Lonegan v.
Hasty, 436 F.Supp.2d 419, 429 (E.D.N.Y. 2006); Lewton v. Divingnzzo, 772 F.Supp.2d 1046, 1059 (D.Nev. 2011).
“But the plaintiffs need not produce direct evidence of the intentional interception; for often the only way to prove that
a stealthy interception occurred is through circumstantial evidence,” McCann v. Iroquois Memorial Hospital, 622 F.3d
745, 752 (7th Cir. 2010), citing, DirecTV v. Webb, 545 F.3d 837, 844 (9th Cir. 2008).
49
Narducci v. Village of Bellwood, 444 F.Supp. 924, 935 (N.D. Ill. 2006).
50
“(1) Except as otherwise specifically provided in this chapter any person who—(a) intentionally intercepts,
endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic
communication;
“(b) intentionally 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 premises of any business or
other commercial establishment the operations of which affect interstate or foreign 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
Commonwealth of Puerto Rico, or any territory or possession of the United States,” 18 U.S.C. 2511(1)(a),(b).
51
“Subparagraph (a) establishes a blanket prohibition against the interception of wire communication. Since the
facilities used to transmit wire communications form part of the interstate or foreign communications network,
Congress has plenary power under the commerce clause to prohibit all interception of such communications whether by
wiretapping or otherwise.
“The broad prohibition of subparagraph (a) is also applicable to the interception of oral communications. The
interception of such communications, however, does not necessarily interfere with the interstate or foreign commerce
network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the
case of interception of wire communications. . . .
“Therefore, in addition to the broad prohibitions of subparagraph (a), the committee has included subparagraph (b),
which relies on accepted jurisdictional bases under the commerce clause, and other provisions of the Constitution to
prohibit the interception of oral communications,” S.Rept. 90-1097, at 91-2 (1968).
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employing subparagraph (b) to prosecute the interception of oral communications, while using
subparagraph (a) to prosecute other forms of electronic eavesdropping.52
Interception
Interception “means the aural or other acquisition of the contents” of various kinds of
communications by means of “electronic, mechanical or other devices.”53 Although logic might
suggest that interception occurs only in the place where the communication is captured, the cases
indicate that interception occurs as well where the communication begins, is transmitted, or is
received.54 Yet, it does not include instances when an individual simply reads or listens to a
previously intercepted communication, regardless of whether additional conduct may implicate
the prohibitions on use or disclosure.55
Once limited to aural acquisitions, ECPA enlarged the definition of “interception” by adding the
words “or other acquisition” so that it is no longer limited to interceptions of communications that
can be heard.56 The change complicates the question of whether the wiretap, stored
communications, or trap and trace portions of the ECPA govern the legality of various means of
capturing information relating to a communication. The analysis might seem to favor wiretap
coverage when it begins with an examination of whether an “interception” has occurred. Yet,
there is little consensus over when an interception occurs; that is, whether “interception” as used
in section 2511 contemplates surreptitious acquisition, either contemporaneous with transmission,
or whether such acquisition may occur anytime before the initial cognitive receipt of the contents
by the intended recipient, or under some other conditions.57
52
DEPARTMENT OF JUSTICE CRIMINAL RESOURCE MANUAL §9-60.200 at 1050, available at http://www.justice.gov/usao/
eousa/foia_reading_room/usam/title9/60mcrm.htm#9-60.400. As will be noted in a moment, the statutory definitions of
wire and electronic communications contain specific commerce clause elements, but the definition of oral
communications does not. Subsequent Supreme Court jurisprudence relating to the breadth of Congress’s commerce
clause powers indicates that the precautions may have been well advised, United States v. Lopez, 514 U.S. 549 (1995)
and United States v. Morrison, 529 U.S. 598 (2000).
53
18 U.S.C. 2510(4). The dictionary definition of “aural” is “of or relating to the ear or to the sense of hearing,”
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 76 (10th ed. 1996).
54
United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006)(“an interception occurs where the tapped phone is
located and where the law enforcement officers first overheard the call ... United States v. Rodriguez, 968 F.2d 130, 136
(2d Cir. 1992); accord, United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997)(concluding that an interception
occurs in the jurisdiction where the tapped phone is located, where the second phone in the conversation is located, and
where the scanner used to overhear the call is located); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996)”).
55
Noel v. Hall, 568 F.3d 743, 749 (9th Cir. 2009)(“In reaching this conclusion, we join a number of other circuits that
have held that replaying of tapes containing recorded phone conversations does not amount to a new interception in
violation of the Wiretap Act”), citing inter alia, United States v. Hammond, 286 F.3d 189, 193 (4th Cir. 2002); Reynolds
v. Spears, 93 F.3d 428, 432-33 (8th Cir. 1996); United States v. Shields, 675 F.2d 1152, 1156 (11th Cir. 1982).
56
S.Rept. 99-541, at 13 (1986)(the “amendment clarifies that it is illegal to intercept the non-voice portion of a wire
communication. For example, it is illegal to intercept the data or digitized portion of a voice communication”); see
also, H.Rept. 99-647, at 34 (1986).
57
See, United States v. Szymuszkiewicz, 622 F.3d 701, 705-706 (7th Cir. 2010)(an employee’s surreptitiously
programming his supervisor’s computer, so that the server forwards duplicates to the employee of all emails sent to the
supervisor, constitutes an interception in violation of Title III); United States v. Councilman, 418 F.3d 67, 79-80(1st Cir.
2005)(en banc)(service provider’s access to email “during transient storage” constitutes “interception”; without
deciding whether “interception is limited to acquisition contemporaneous with transmission”); Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002)(fraudulent access to stored communication does not constitute an
“interception”; interception requires access contemporaneous with transmission); United States v. Smith, 155 F.3d
1051, 1058 (9th Cir. 1998)(unauthorized retrieval and recording of another’s voice mail messages constitutes an
(continued...)
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The USA PATRIOT Act resolved some of the statutory uncertainty concerning voice mail when it
removed voice mail from the wiretap coverage of Title III (striking the phrase “and such term
includes any electronic storage of such communication” from the definition of “wire
communications” in Title III (18 U.S.C. 2510(1)) and added stored wire communications to the
stored communications coverage of 18 U.S.C. 2703.58
Content
The interceptions proscribed in Title III are confined to those that capture a communication’s
“content,” that is, “information concerning [its] substance, purport, or meaning.”59 Trap and trace
devices and pen registers once captured only information relating to the source and addressee of a
communication, not its content. That is no longer the case. The “post-cut-through dialed digit
features” of contemporary telephone communications now transmit communications in such a
manner that the use of ordinary pen register or trap and trace devices will capture both noncontent and content.60 As a consequence, a few courts have held, either as a matter of statutory
(...continued)
“interception”); United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006)(government’s acquisition from the phone
company of text messages was no interception because there was no contemporaneous access); Fraser v. National
Mutual Insurance Co., 135 F.Supp.2d 623, 634-37 (E.D.Pa. 2001)(“interception” of email occurs with its unauthorized
acquisition prior to initial receipt by its addressee); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d
457, 461-62 n.7 (5th Cir. 1994)(Congress did not intend for “interception” to apply to email stored on an electronic
bulletin board; stored wire communications (voice mail), however, is protected from “interception”); United States v.
Meriwether, 917 F.2d 955, 959-60 (6th Cir. 1990)(access to stored information through the use of another’s pager does
not constitute an “interception”); United States v. Reyes, 922 F.Supp. 818, 836-37 (S.D.N.Y. 1996)(same); Wesley
College v. Pitts, 947 F.Supp. 375, 385 (D.Del. 1997)(no “interception” occurs when the contents of electronic
communications are acquired unless contemporaneous with their transmission); Cardinal Health 414, Inc. v. Adams,
582 F.Supp.2d 967, 979-81 (M.D. Tenn. 2008)(same); see also, Adams v. Battle Creek, 250 F.3d 980, 982 (6th Cir.
2001)(use of a “clone” or duplicate pager to simultaneously receive the same message as a target pager is an
“interception”); Brown v. Waddell, 50 F.3d 285, 294 (4th Cir. 1995)(same).
58
115 Stat. 283 (2001). Such recourse to the procedures of the Stored Communications Act must still comply with the
demands of the Fourth Amendment, see, United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)(“Accordingly, we
hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent
or received through, a commercial ISP. The government may not compel a commercial ISP to turn over the contents of
a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain
a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s
emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the
SCA is unconstitutional”).
59
18 U.S.C. 2510(8). In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1061 (2012)(“In United States v. Reed,
575 F.3d 900 (9th Cir. 2009), the Ninth Circuit held that data automatically generated about a telephone call, such as the
call’s time of origination and its duration, do not constitute ‘content’ for purposes of the Wiretap Act’s sealing
provisions because such data ‘contains no “information concerning the substance, purport, or meaning of [the]
communication.”’ Id. at 916 (quoting 18 U.S.C. 2510[(8)]). Rather, ‘content’ is limited to information the user intended
to communicate, such as the words spoken in a phone call. Id. Here, the allegedly intercepted electronic
communications are simply users’ geolocation data. This data is generated automatically, rather than through the intent
of the user, and therefore does not constitute ‘content’ susceptible to interception”).
60
“‘Post-cut-through dialed digits’ are any numbers dialed from a telephone after the call is initially setup or ‘cutthrough.’ Sometimes these digits are other telephone numbers, as when a party places a credit card call by first dialing
the long distance carrier access number and then the phone number of the intended party. Sometimes these digits
transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like.
In the latter case, the digits represent communications content; in the former, they are non-content call processing
numbers,” In re United States, 441 F.Supp.2d 816, 818 (S.D. Tex. 2006).
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construction or constitutional necessity, that the authorities must rely on a Title III wiretap order
rather than a pen register/trap and trace order if such information will be captured.61
By Electronic, Mechanical, or Other Device
The statute does not cover common law “eavesdropping,” but only interceptions “by electronic,
mechanical or other device.”62 The term includes computers,63 but it is defined so as not to
include hearing aids or extension telephones in normal use (use in the “ordinary course of
business”).64 Whether an extension phone has been installed and is being used in the ordinary
course of business or in the ordinary course of law enforcement duties, so that it no longer
constitutes an interception device for purposes of Title III and comparable state laws has proven a
somewhat vexing question.65
Although often intertwined with the consent exception discussed below, the question generally
turns on the facts in a given case.66 When the exemption is claimed as a practice in the ordinary
course of business, the interception must be for a legitimate business reason, it must be routinely
conducted, and at least in some circuits employees must be notified that their conversations are
being monitored.67 Similarly, “Congress most likely carved out an exception for law enforcement
61
In re United States for Orders (1) Authorizing Use of Pen Registers and Trap and Trace Devices, 515 F.Supp.2d 325,
328-38 (E.D.N.Y. 2007); In re United States, 441 F.Supp.2d 816, 818-27 (S.D. Tex. 2006).
62
18 U.S.C. 2510(4). United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006)(government’s acquisition from the
phone company of text messages was not an interception because it did not involve contemporaneous access and
because no electronic, mechanical, or other devices were used).
63
United States v. Szymuszkiewicz, 622 F.3d 701, 707 (7th Cir. 2010)(“Thus Szymuszkiewicz acquired the emails by
using at least three devices: Infusino’s computer (where the rule [directing surreptitious duplication of incoming
emails] was set up), the Kansas City server (where the rule caused each message to be duplicated and sent his way),
and his own computer (where the messages were received, read, and sometimes stored”).
64
“‘[E]lectronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire,
oral, or electronic communication other than—(a) any telephone or telegraph instrument, equipment or facility, or any
component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in
the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or
furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of
its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its
business, or by an investigative or law enforcement officer in the ordinary course of his duties; (b) a hearing aid or
similar device being used to correct subnormal hearing to not better than normal,” 18 U.S.C. 2510(5).
65
See the cases cited and commentary in Barnett & Makar, “In the Ordinary Course of Business”: The Legal Limits of
Workplace Wiretapping, 10 HASTINGS JOURNAL OF COMMUNICATIONS AND ENTERTAINMENT LAW 715 (1988);
Application to Extension Telephones of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.
§§2510 et seq.), Pertaining to Interceptions of Wire Communications, 58 ALR Fed. 594; Eavesdropping on Extension
Telephone as Invasion of Privacy, 49 ALR 4th 430.
66
E.g., Deal v. Spears, 780 F.Supp. 618, 623 (W.D.Ark. 1991), aff’d, 980 F.2d 1153 (8th Cir. 1992)(employer regularly
taped employee calls by means of a device attached to an extension phone; most of the calls were personal and
recording and disclosing them served no business purpose).
67
Adams v. Battle Creek, 250 F.3d 980, 983 (6th Cir. 2001); Arias v. Mutual Central Alarm Service, 202 F.3d 553, 558
(2d Cir. 2000); Berry v. Funk, 146 F.3d 1003, 1008 (D.C.Cir. 1998); Sanders v. Robert Bosch Corp., 38 F.3d 736, 741
(4th Cir. 1994). See also, Hall v. Earthlink Network Inc., 396 F.3d 500, 503-04 (2d Cir. 2005) (Internet service
provider’s receipt and storage of former customer’s email after termination of the customer’s account was done in
ordinary course of business and consequently did not constitute an interception).
Some courts include surreptitious, extension phone interceptions conducted within the family home as part of the
“business extension” exception, Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977); Scheib v. Grant, 22
F.3d 149, 154 (7th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); contra, United States v.
Murdock, 63 F.3d 1391, 1400 (6th Cir. 1995).
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officials to make clear that the routine and almost universal recording of phone lines by police
departments and prisons, as well as other law enforcement institutions, is exempt from the
statute.”68 The exception contemplates administrative rather than investigative monitoring,69
which must nevertheless be justified by a lawful, valid law enforcement concern.70
Wire, Oral, or Electronic Communications
An interception is only a violation of Title III if the conversation or other form of captured
communication is among those kinds which the statute protects, in oversimplified terms—if it is a
telephone (wire), face to face (oral), or computer (electronic) communication. Thus, Title III does
cover silent video surveillance.71
Title III does not cover all wire, oral or electronic communications. “Oral communications,” by
definition, includes only those face to face conversations for which the speakers have a justifiable
expectation of privacy.72 “Wire communications” are limited to those that are at some point
involve voice communications (i.e., only aural transfers).73 The term “electronic
communications” encompasses radio and data transmissions generally, but excludes certain radio
68
Adams v. Battle Creek, 250 F.3d at 984; see also, United States v. Lewis, 406 F.3d 11, 18 (1st Cir. 2005); United
States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002); Smith v. U.S. Dept. of Justice, 251 F.3d 1047, 1049-50 (D.C.Cir.
2001); United States v. Poyck, 77 F.3d 285, 292 (9th Cir. 1996); United States v. Daniels, 902 F.2d 1238, 1245 (7th Cir.
1990); United States v. Paul, 614 F.2d 115, 117 (6th Cir. 1980).
69
Amati v. Woodstock, 176 F.3d 952, 955 (7th Cir. 1999)(“Investigation is within the ordinary course of law
enforcement, so if ‘ordinary’ were read literally warrants would rarely if ever be required for electronic eavesdropping,
which was surely not Congress’s intent. Since the purpose of the statute was primarily to regulate the use of
wiretapping and other electronic surveillance for investigatory purposes, ‛ordinary’ should not be read so broadly; it is
more reasonably interpreted to refer to routine noninvestigative recording of telephone conversations”); accord, United
States v. Lewis, 416 F.3d at 11; Colandrea v. Orangetown, 411 F.Supp.2d 342, 347-48 (S.D.N.Y. 2007).
70
The exception, however, does not permit a county to record all calls in and out of the offices of county judges merely
because a detention center and the judges share a common facility, Abraham v. Greenville, 237 F.3d 386, 390 (4th Cir.
2001), nor does it permit jailhouse telephone monitoring of an inmate’s confession to a clergyman, Mockaitis v.
Harcleroad, 104 F.3d 1522, 1530 (9th Cir. 1997). The courts are divided over whether private corrections officials are
covered by the law enforcement exception. Compare, United States v. Faulkner, 323 F. Supp.2d 1111, 1113-17 (D.
Kan. 2004), aff’d on other grounds, 439 F.3d 1221 (10th Cir. 2006) (not covered) with, United States v. Rivera, 292 F.
Supp.2d 838, 842-43 (E.D.Va. 2003) (covered).
71
United States v. Larios, 593 F.3d 82, 90-91 (1st Cir. 2010); United States v. Falls, 34 F.3d 674, 679-80 (8th Cir.
1994); United States v. Koyomejian, 970 F.2d 536, 538 (9th Cir. 1992); United States v. Biasucci, 786 F.2d 505, 508509 (2d Cir. 1986); United States v. Torres, 751 F.2d 875, 880-81 (7th Cir. 1984).
72
“‘[O]ral communication’ means any oral communication uttered by a person exhibiting an expectation that such
communication is not subject to interception under circumstances justifying such expectation, but such term does not
include any electronic communication,” 18 U.S.C. 2510(2). United States v. Larios, 593 F.3d 82, 92 (1st Cir.
2010)(emphasis in the original but most internal quotation marks and citations omitted)(The “legislative history of this
statutory provision shows that Congress intended this definition to parallel the ‘reasonable expectation of privacy test’
articulated by the Supreme Court in Katz. Thus, for Title III to apply, the court must conclude: (1) the defendant had an
actual, subjective expectation of privacy—i.e., that his communications were not subject to interception; and (2) the
defendant’s expectation is one society would objectively consider reasonable.... We conclude that the most reasonable
reading of the statute is that the meaning of ‘oral communication’ was intended to parallel evolving Fourth Amendment
jurisprudence on reasonable expectations of privacy in one’s communications”); Pattee v. Georgia Ports Authority, 512
F.Supp.2d 1372, 1376-377 (S.D.Ga. 2007).
73
“‘[W]ire communication’ means 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 between the point of origin and the
point of reception (including the use of such connection in a switching station) furnished or operated by any person
engaged in providing or operating such facilities for the transmission of interstate or foreign communications or
communications affecting interstate or foreign commerce,” 18 U.S.C. 2510(1).
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transmissions which can be innocently captured without great difficulty.74 Even when a radio
transmission meets the definition, Title III’s general exemption may render its capture innocent.75
Endeavoring to Intercept
Although the statute condemns attempted wiretapping and electronic eavesdropping
(“endeavoring to intercept”),76 the provisions appear to have escaped use, interest, or comment
heretofore, perhaps because the conduct most likely to constitute preparation for an
interception—possession of wiretapping equipment—is already a separate crime.77
Exemptions: Consent Interceptions
Consent interceptions are common, controversial and have a history all their own. The early bans
on divulging telegraph or telephone messages had a consent exception.78 The Supreme Court
upheld consent interceptions against Fourth Amendment challenge both before and after the
enactment of Title III.79 The argument in favor of consent interceptions has always been
essentially that a speaker risks the indiscretion of his listeners and holds no superior legal position
simply because a listener elects to record or transmit his statements rather than subsequently
memorializing or repeating them.80 Wiretapping or electronic eavesdropping by either the police
or anyone else with the consent of at least one party to the conversation is not unlawful under the
federal statute.81 These provisions do no more than shield consent interceptions from the
74
“‘[E]lectronic 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 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
defined in section 3117 of this title),” 18 U.S.C. 2510(12).
75
18 U.S.C. 2511(2)(g).
76
18 U.S.C. 2511(1).
77
18 U.S.C. 2512, discussed, infra.
78
E.g., 47 U.S.C. 605 (1940 ed.).
79
On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); United States v. White,
401 U.S. 745 (1971).
80
United States v. White, 401 U.S. at 751 (1971)(“Concededly a police agent who conceals his police connections may
write down for official use his conversations with a defendant and testify concerning them, without a warrant
authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights....
For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing
his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is
carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the
conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency.
On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do
not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of
the same conversations made by the agent or by others from transmissions received from the agent to whom the
defendant is talking and whose trustworthiness the defendant necessarily risks”); Lopez v. United States 373 U.S. 427,
439 (1963)(“Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely
on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating
evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a
conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to
Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or
mechanical recording”).
81
“(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or
(continued...)
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sanctions of federal law; they afford no protection from the sanctions of state law. Many of the
states recognize comparable exceptions, but some only permit interception with the consent of all
parties to a communication.82
Under federal law, consent may be either explicitly or implicitly given. For instance, someone,
who uses a telephone other than his or her own and has been told by the subscriber that
conversations over the instrument are recorded, has been held to have implicitly consented to
interception when using the instrument.83 This is not to say that subscriber consent alone is
sufficient, for it is the parties to the conversation whose privacy is protected.84 Although consent
may be given in the hopes of leniency from law enforcement officials or as an election between
unpalatable alternatives, it must be freely given and not secured coercively.85
Private consent interceptions may not be conducted for a criminal or tortious purpose.86 Some
state wiretap laws do not recognize a one party consent exception. There, interception with the
consent of but one party to the conversation is a violation of state law. But the federal exception is
available as long as the purpose of the interception was neither criminal nor tortious—though the
means may have been.87 At one time, the limitation encompassed interceptions for criminal,
tortious, or otherwise injurious purposes, but ECPA dropped the reference to injurious purposes
for fear that First Amendment values might be threatened should the clause be read to outlaw
consent interceptions conducted to embarrass.88
(...continued)
electronic communication, where such person is a party to the communication 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, oral, or
electronic communication where such person is a party to the communication or where one of the parties to the
communication has given prior consent to such interception unless such communication is intercepted for the purpose
of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State,”
18 U.S.C. 2511(2)(c), (d).
82
For citations to state law, see, Appendix B.
83
United States v. Verdin-Garcia, 516 F.3d 884, 894-95 (10th Cir. 2008) (inmate use of prison phone); United States v.
Friedman, 300 F.3d 111, 122-23 (2d Cir. 2002)(same); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002)
(same); United States v. Footman, 215 F.3d 145, 154-55 (1st Cir. 2000) (same); Griggs-Ryan v. Smith, 904 F.2d 112,
116-17 (1st Cir. 1990) (use of landlady’s phone); United States v. Rivera, 292 F. Supp.2d 838, 843-45 (E.D.Va. 2003)
(inmate use of prison phone monitored by private contractors); see also, United States v. Conley, 531 F.3d 56, 58-9 (1st
Cir. 2008)(explicit consent as a condition for phone privileges).
84
Anthony v. United States, 667 F.2d 870, 876 (10th Cir. 1981).
85
United States v. Antoon, 933 F.2d 200, 203-204 (3d Cir. 1991). But see, O’Ferrell v. United States, 968 F.Supp.
1519, 1541 (M.D.Ala. 1997) (an individual who spoke to his wife on the telephone after being told by FBI agents who
were then executing a search warrant at his place of business that he could only speak to her with the agents listening in
consented to the interception, even if FBI’s initial search was unconstitutional).
86
18 U.S.C. 2511(2)(d); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D.Cal. 2003).
87
Caro v. Weintraub, 618 F.3d 94, 100 (2d Cir. 2010)(“We join the courts that have considered this question, and hold
that a cause of action under §2511(2)(d) requires that the interceptor intend to commit a crime or tort independent of
the act of recording itself”), citing, Desnick v. American Broadcasting Co., 44 F.3d 1345, 1347-48 (7th Cir. 1995);
Sussman v. American Broadcasting Co, 186 F.3d 1200, 1201 (9th Cir. 1999).
88
S.Rept. 99-541, at 17-8 (1986); H.Rept. 99-647, at 39-40 (1986).
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Exemptions: Publicly Accessible Radio Communications
Radio communications which can be inadvertently heard or are intended to be heard by the public
are likewise exempt. These include not only commercial broadcasts, but ship and aircraft distress
signals, tone-only pagers, marine radio and citizen band radio transmissions, and interceptions
necessary to identify the source of any transmission, radio or otherwise, disrupting
communications satellite broadcasts.89
Exemptions: Government Officials
Government officials have the benefit of an exemption when executing a Title III eavesdropping
order;90 acting in an emergency situation pending issuance of a court order;91 acting under the
authority of Title III in the case of communications of an intruder in a communications system
acting with the approval of the system provider;92 acting under the authority of the Foreign
89
“(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 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,
private land mobile, or public safety communications system, including police and fire, readily accessible to the general
public; (III) by a station operating on an authorized frequency within the bands allocated 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 or consumer electronic equipment, 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 system that utilizes
frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not
scrambled or encrypted,” 18 U.S.C. 2511(2)(g).
90
“Except as otherwise specifically provided in this chapter any person who (a) intentionally intercepts.... ” 18 U.S.C.
2511(1)(emphasis added).
91
“Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially
designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal
prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably
determines that—(a) an emergency situation exists that involves—(i) immediate danger of death or serious physical
injury to any person, (ii) conspiratorial activities threatening the national security interest, or (iii) conspiratorial
activities characteristic of organized crime, [—] that requires a wire, oral, or electronic communication to be
intercepted before an order authorizing such interception can, with due diligence, be obtained, and (b) there are grounds
upon which an order could be entered under this chapter to authorize such interception, may intercept such wire, oral,
or electronic communication if an application for an order approving the interception is made in accordance with this
section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such
interception shall immediately terminate when the communication sought is obtained or when the application for the
order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the
interception is terminated without an order having been issued, the contents of any wire, oral, or electronic
communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall
be served as provided for in subsection (d) of this section on the person named in the application,” 18 U.S.C. 2518(7).
92
“(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or
electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if—(I) the
owner or operator of the protected computer authorizes the interception of the computer trespasser’s communications
on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the
person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser’s
communications will be relevant to the investigation; and (IV) such interception does not acquire communications
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Intelligence Surveillance Act,93 or acting pursuant to the authority according them the use of pen
registers and trap and trace devices.94
Exemptions: Communication Service Providers
A further exemption applies to those who supply communications services: the telephone
company, switchboard operators, and the like. The exemption permits interception in the name of
improved service; to allow a service provider to itself against fraud;95 to assist federal and state
officials operating under a judicially supervised interception order,96 and for the regulatory
activities of the Federal Communications Commission.97
(...continued)
other than those transmitted to or from the computer trespasser,” 18 U.S.C. 2511(2)(i).
93
“(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it
shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to
conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as
authorized by that Act,” 18 U.S.C. 2511(2)(e).
94
“(h) It shall not be unlawful under this chapter—(I) to use a pen register or a trap and trace device (as those terms are
defined for the purpose of chapter 206)….” 18 U.S.C. 2511(2)(h). Neither the stored communications sections in
chapter 121 nor the pen register and trap and trace device in chapter 206 authorize the contemporaneous interception of
the contents of a communication. For the citations to state statutes permitting judicial authorization of law enforcement
interception of wire, oral, or electronic communications, for access to stored electronic communications, and for the use
of pen registers and trap and trace devices, see, Appendix D.
95
“(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent
of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or
electronic communication, to intercept, disclose, or use that communication 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 provider of that service, 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 control checks....
* * *
“(h) It shall not be unlawful under this chapter ...
“(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 protect 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,” 18 U.S.C. 2511(2)(a)(I), (h).
96
“(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers,
employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or
technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct
electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider,
its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
(A) a court order directing such assistance signed by the authorizing judge, or
(B) a certification in writing 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 specified assistance is required,
setting forth the period of time during which the provision of the information, facilities, or technical assistance is
authorized and specifying the information, facilities, or technical assistance required. No provider of wire or electronic
communication service, officer, employee, or agent thereof, 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 a court order or certification under this chapter, 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 such
disclosure, shall render such person liable for the civil damages provided for in section 2520. No cause of action shall
lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents,
(continued...)
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Domestic Exemptions
A few courts recognize a “vicarious consent” exception under which a custodial parent may
secretly record the conversations of his or her minor child in the interest of protecting the child.98
Although rejected by most,99 a handful of federal courts have held that Title III does not preclude
one spouse from wiretapping or electronically eavesdropping upon the other,100 a result other
courts have sometimes reached through the telephone extension exception discussed above.101
Illegal Disclosure of Information Obtained by Wiretapping or
Electronic Eavesdropping
Title III has three disclosure offenses. The first is a general prohibition focused on the products of
an unlawful interception:
•
any person [who]
•
intentionally
•
discloses or endeavors to disclose to another person
•
the contents of any wire, oral, or electronic communication
•
having reason to know
•
that the information was obtained through the interception of a wire, oral, or
electronic communication
•
in violation of 18 U.S.C. 2511(1)
(...continued)
landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the
terms of a court order, statutory authorization, or certification under this chapter,” 18 U.S.C. 2511(2)(a)(ii).
97
“(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications
Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by
the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire or electronic
communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained,” 18
U.S.C. 2511(2)(b).
98
Pollock v. Pollock, 154 F.3d 601, 611 (8th Cir. 1998); Wagner v. Wagner, 64 F.Supp.2d 895, 889-901 (D.Minn.
1999); Campbell v. Price, 2 F.Supp.2d 1186, 1191-192 (E.D.Ark. 1998); Thompson v. Dulaney, 838 F.Supp. 1535,
1544-45 (D.Utah 1993); cf., Babb v. Eagleton, 616 F.Supp.2d 1195, 1205-206 (N.D.Okla. 2007).
99
Glazner v. Glazner, 347 F.3d 1212, 1215-16 (11th Cir. 2003); Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir. 1991);
Kempf v. Kempf, 868 F.2d 970, 972 (8th Cir. 1989); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984); United
States v. Jones, 542 F.2d 661, 667 (6th Cir. 1976); Kratz v. Kratz, 477 F.Supp. 463, 467-70 (E.D.Pa. 1979); Heyman v.
Heyman, 548 F.Supp. 1041, 1045-47 (N.D.Ill.1982); Lombardo v. Lombardo, 192 F.Supp.2d 885, 809 (N.D.Ill. 2002).
100
Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir. 1974); Perfit v. Perfit, 693 F.Supp. 851, 854-56 (C.D.Cal. 1988);
see generally, Applicability, in Civil Action, of Provisions of Omnibus Crime Control and Safe Streets Act of 1968
Prohibiting Interception of Communications (18 USCS §2511(1)), to Interception by Spouse, or Spouse’s Agent, of
Conversations of Other Spouse, 139 ALR Fed. 517, and the cases discussed therein.
101
Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir. 1994);
Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); cf., Babb v. Eagleton, 616 F.Supp.2d 1195, 1203-205 (N.D.
Okla. 2007); contra, United States v. Murdock, 63 F.3d 1391, 1400 (6th Cir. 1995).
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•
is subject to the same sanctions and remedies as the wiretapper or electronic
eavesdropper.102
This is true of the wiretapper or electronic eavesdropper and of all those who, aware of the
information’s illicit origins, disclose it. The defendant must be shown to have known that the
interception occurred and that the interception was unlawful.103 There are exceptions. When the
illegally secured information relates to a matter of usual public concern, the First Amendment
precludes a prosecution for disclosure under §2511(c).104 Moreover, the legislative history
indicates that Congress did not intend to punish the disclosure of intercepted information that is
public knowledge. Less clear is whether the limitation is confined to information commonly
known at the time of capture, or more likely, information of which the public was generally aware
at the time of disclosure.105 Finally, the results of electronic eavesdropping authorized under Title
III may be disclosed and used for law enforcement purposes106 and for testimonial purposes.107
Title III makes it a federal crime to disclose intercepted communications under two other
circumstances. It is a federal crime to disclose, with an intent to obstruct criminal justice, any
information derived from lawful police wiretapping or electronic eavesdropping, i.e.:
•
any person [who]
102
18 U.S.C. 2511(1)(c).
McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753 (7th Cir. 2010), citing, Nix v. O’Malley, 160 F.3d 343,
348 (6th Cir. 1998); Williams v. Poulos, 11 F.3d 271, 284 (1st Cir. 1993); and Thompson v. Dulaney, 970 F.2d 744, 749
(10th Cir. 1992).
104
Bartnicki v. Vopper, 532 U.S. 514, 533-34 (2001). Bartnicki was a union negotiator whose telephone conversations
with the union’s president concerning teachers’ contract negotiations were surreptitiously intercepted and recorded.
During the conversation, the possibility of using violence against school board members was mentioned. After the
teachers’ contract was signed, the unknown wiretapper secretly supplied Yocum, a critic of the union’s position, with a
copy of the tape. Yocum in turn played it for members of the school board and turned it over to Vopper, a radio talk
show host, who played it on his show. Other stations and media outlets published the contents as well. Bartnicki sued
Vopper and Yocum for use and disclosure in violation of sections 2511(1)(c) and 2511(1)(d). Vopper and Yocum
offered a free speech defense, which the Supreme Court accepted. But see, Quigley v. Rosenthal, 327 F.3d 1044, 106768 (10th Cir. 2003) (denying First Amendment protection for those knowingly involved with interceptors of private
matters (not public concerns)); Boehner v. McDermott, 484 F.3d 573, 577-81 (D.C.Cir. 2007)(Members of Congress do
not have a First Amendment right to disclose unlawful wiretap information in violation of House rules).
105
“Subparagraphs (c) and (d) prohibit, in turn, the disclosure or use of the contents of any intercepted communication
by any person knowing or having reason to know the information was obtained through an interception in violation of
this subsection. The disclosure of the contents of an intercepted communication that had already become ‘public
information’ or ‘common knowledge’ would not be prohibited. The scope of this knowledge required to violate either
subparagraph reflects existing law (Pereira v. United States, 347 U.S. 1 (1954)),” S.Rept. 90-1097, at 93 (1967).
106
“Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained
knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose
such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the
proper performance of the official duties of the officer making or receiving the disclosure,” 18 U.S.C. 2517(1).
107
“Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or
electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter
may disclose the contents of that communication or such derivative evidence while giving testimony under oath or
affirmation in any proceeding held under the authority of the United States or of any State or political subdivision
thereof,” 18 U.S.C. 2517(3). This does not entitle private litigants to disclosure in the view of at least one court, In re
Motion to Unseal Electronic Surveillance Evidence, 990 F.2d 1015 (8th Cir. 1993).
When court-ordered interception results in evidence of a crime other than the crime with respect to which the order was
issued, the evidence is admissible only upon a judicial finding that it was otherwise secured in compliance with Title
III/ECPA requirements, 18 U.S.C. 2517(5).
103
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•
intentionally discloses, or endeavors to disclose, to any other person
•
the contents of any wire, oral, or electronic communication
•
intercepted by means authorized by sections:
•
2511(2)(a)(ii) (communication service providers, landlords, etc. who
assist police setting up wiretaps or electronic eavesdropping devices)
•
2511(2)(b) (FCC regulatory activity)
•
2511(2)(c) (police one party consent)
•
2511(2)(e) (Foreign Intelligence Surveillance Act)
•
2516 (court-ordered, police wiretapping or electronic surveillance)
•
2518 (emergency wiretaps or electronic surveillance)
•
knowing or having reason to know that
•
the information was obtained through the interception of such a communication
•
in connection with a criminal investigation
•
having obtained or received the information in connection with a criminal
investigation
•
with intent to improperly obstruct, impede, or interfere with a duly authorized
criminal investigation
•
is subject to the same sanctions and remedies as one who illegally wiretaps.108
Offenders face the criminal and civil liability as those who wiretap.109
This second disclosure proscription applies to efforts to obstruct justice by revealing information
gleaned from either federal wiretaps. It may also apply to state wiretaps. It covers information
generated from a court-ordered wiretap authorized under §2516. Section 2516 authorizes both
federal and state court-ordered wiretaps.110 On the other hand, strictly speaking, §2516 permits
state wiretapping when “authorized” by state law.111 The courts might conclude that Congress
would have spoken more clearly, if it intended to make it a federal crime to obstruct state criminal
prosecutions by the disclosing of information derived from a state wiretap.
108
18 U.S.C. 2511(1)(e). When acting with a similar intent, disclosure of the fact of authorized federal wiretap or
foreign intelligence gathering is proscribed elsewhere in title 18: “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,” 18 U.S.C. 2232(d).
“Whoever, having knowledge that a Federal officer has been authorized or has applied for authorization to conduct
electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 (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,” 18 U.S.C. 2232(e).
109
18 U.S.C. 2511(1)(e), (4)(a), 2520(a), (g).
110
18 U.S.C. 2516(2).
111
Id.
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A third disclosure proscription applies only to electronic communications service providers “who
intentionally divulge the contents of the communication while in transmission” to anyone other
than sender and intended recipient.112 The prohibition comes with its own exemptions for
divulgence—when one of the parties to the communications consents, when Title III authorizes
disclosure of a court approved interception, when necessary for transmission of the
communication, or when it involves inadvertent discovery of information relating to the
commission of a crime.113 Although subsection 2511(3) provides no specific sanctions, violators
would presumably be exposed to criminal liability under the general disclosure proscription, 18
U.S.C. 2511(1)(c), and to civil liability under 18 U.S.C. 2520.114
Illegal Use of Information Obtained by Unlawful Wiretapping or
Electronic Eavesdropping
The prohibition on the use of information secured from illegal wiretapping or electronic
eavesdropping mirrors its disclosure counterpart:
•
any person [who]
•
intentionally
•
uses or endeavors to use to another person
•
the contents of any wire, oral, or electronic communication
•
having reason to know
•
that the information was obtained through the interception of a wire, oral, or
electronic communication
•
in violation of 18 U.S.C. 2511(1)
•
is subject to the same sanctions and remedies as the wiretapper or electronic
eavesdropper.115
The available case law under the use prohibition of paragraph 2511(1)(d) is scant, and the section
has rarely been invoked except in conjunction with the disclosure prohibition of paragraph
112
18 U.S.C. 2511(3)(a) (“Except as provided in paragraph (b) of this subsection, a person or entity providing an
electronic communication service to the public shall not intentionally 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”).
113
18 U.S.C. 2511(3)(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”).
114
Note that subsection 2520(d) establishes a good faith defense that specifically references the prohibition: “A good
faith reliance on ... (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.... ”
115
18 U.S.C. 2511(1)(d).
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2511(1)(c).116 The wording of the two is clearly parallel, the legislative history describes them in
the same breath,117 and they are treated alike for law enforcement purposes.118
A few courts had recognized an exception to the disclosure-use bans of subsection 2511(1) when
law enforcement officials disclose or use the results of an illegal interception in which they had
played no role.119
The criminal and civil liability that attend unlawful use of intercepted communications in
violation of paragraph 2511(1)(d) are the same as for unlawful disclosure in violation of
paragraphs 2511(1)(c) or 2511(1)(e), or for unlawful interception under paragraphs 2511(1)(a) or
2511(1)(b).120
Shipping, Manufacturing, Distributing, Possessing or Advertising
Wire, Oral, or Electronic Communication Interception Devices
The proscriptions for possession and trafficking in wiretapping and eavesdropping devices are
even more demanding than those that apply to the predicate offense itself. There are exemptions
for service providers,121 government officials and those under contract with the government,122
116
See e.g., McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753-54 (7th Cir. 2010).
“Subparagraphs (c) and (d) prohibit, in turn, the disclosure or use of the contents of any intercepted communication
by any person knowing or having reason to know the information was obtained through an interception in violation of
this subsection,” S.Rept. 90-1097, at 93 (1967).
118
Compare, 18 U.S.C. 2517(1)(“Any investigative or law enforcement officer who, by any means authorized by this
chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived
therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such
disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the
disclosure”), with 18 U.S.C. 2517(2)(“Any investigative or law enforcement officer who, by any means authorized by
this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived
therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties”).
On the other hand, the Supreme Court in Bartnicki seemed to parse the constitutionally suspect ban on disclosure from
the constitutionally permissible ban on use. Bartnicki v. Vopper, 532 U.S. 514, 526-27 (2001)(“[T]he naked prohibition
against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the ‛use’ of the
contents of an illegal interception in §2511(1)(d), subsection (c) is not a regulation of conduct”).
119
Forsyth v. Barr, 19 F.3d 1527, 1541-545 (5th Cir. 1994); United States v. Murdock, 63 F.3d 1391, 1400-403 (6th Cir.
1995); contra, United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009); Berry v. Funk, 146 F.3d 1003, 1011-13
(D.C.Cir. 1998); Chandler v. United States Army, 125 F.3d 1296, 1300-302 (9th Cir. 1997); In re Grand Jury, 111 F.3d
1066, 1077 (3d Cir. 1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987).
120
18 U.S.C. 2511(4), 2520(a), (g).
121
“It shall not be unlawful under this section for—(a) a provider of wire or electronic communication service or an
officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of
providing that wire or electronic communication service ... to send through the mail, send or carry in interstate or
foreign commerce, or manufacture, assemble, possess, or sell 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, oral, or electronic communications,” 18 U.S.C. 2512(2)(a).
122
“(2) It shall not be unlawful under this section for ... (b) an officer, agent, or employee of, or a person under contract
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
commerce, or manufacture, assemble, possess, or sell 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, oral, or electronic communications.
“(3) It shall not be unlawful under this section to advertise for sale a device described in subsection (1) of this section if
(continued...)
117
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but there is no exemption for equipment designed to be used by private individuals, lawfully but
surreptitiously.123 Nevertheless, inoperable equipment, though designed to intercept, may not be
considered equipment “which can be used to intercept” and consequently may not serve as the
basis for a conviction under §2512.124
Section 2512’s three prohibitions feature several common elements, declaring that:
•
any person who
•
intentionally
•
either
(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, oral, or
electronic communications; or
(b)
•
manufactures, assembles, possesses, or sells
•
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, 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
(c)
•
places in any newspaper, magazine, handbill, or other publication or
disseminates electronically
•
any advertisement of—
(...continued)
the advertisement is mailed, sent, or carried in interstate or foreign commerce solely to a domestic provider of wire or
electronic communication service or to an agency of the United States, a State, or a political subdivision thereof which
is duly authorized to use such device,” 18 U.S.C. 2512(2)(b),(3).
123
United States v. Spy Factory, Inc., 951 F.Supp. 450, 473-75 (S.D.N.Y. 1997); United States v. Bast, 495 F.2d 138,
141 (D.C.Cir. 1974).
124
United States v. Simels, 654 F.3d 161, 171 (2d Cir. 2011).
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•
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, oral, or
electronic communications; or
•
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, oral, or
electronic communications
•
knowing the content of the advertisement and knowing or having reason
to know
•
that such advertisement will be sent through the mail or transported in
interstate or foreign commerce
shall be imprisoned for not more than five years and/or fined not more than $250,000
(not more than $500,000 for organizations).125
The legislative history lists among the items Congress considered “primarily useful for the
purpose of the surreptitious interception of communications: the martini olive transmitter, the
spike mike, the infinity transmitter, and the microphone disguised as a wristwatch, picture frame,
cuff link, tie clip, fountain pen, stapler, or cigarette pack.”126
Questions once raised over whether §2512 covers equipment designed to permit unauthorized
reception of scrambled satellite television signals have been resolved.127 Each of the circuits to
consider the question has now concluded that §2512 outlaws such devices,128 but simple
possession does not give rise to a private cause of action.129
125
18 U.S.C. 2512.
S.Rept. 90-1097, at 95 (1968).
127
The two appellate panel decisions that found the devices beyond the bounds of section 2512, United States v.
Herring, 933 F.2d 932 (11th Cir. 1991) and United States v. Hux, 940 F.2d 314 (8th Cir. 1991) were overturned en banc,
United States v. Herring, 993 F.2d 784, 786 (11th Cir. 1993); United States v. Davis, 978 F.2d 415, 416 (8th Cir. 1992).
128
United States v. Harrell, 983 F.2d 36, 37-39 (5th Cir. 1993); United States v. One Macom Video Cipher II, 985 F.2d
258, 259-61 (6th Cir. 1993); United States v. Shriver, 989 F.2d. 898, 901-06 (7th Cir. 1992); United States v. Davis, 978
F.2d 415, 417-20 (8th Cir. 1992); United States v. Lande, 968 F.2d 907, 910-11 (9th Cir. 1992); United States v. McNutt,
908 F.2d 561, 564-65 (10th Cir. 1990); United States v. Herring, 993 F.2d 784, 786-89 (11th Cir. 1991).
129
DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004); DirecTV, Inc. v. Robson, 420 F.3d 532, 538-39
(5th Cir. 2005)(citing several district court cases that have reached the same conclusion). Proof that the possessor used
the device to intercept satellite transmission evidences a violation of section 2511 and exposure to civil liability under
section 2520, DirecTV, Inc. v. Nicholas, 403 F.3d 223, 227-28 (4th Cir. 2005); DirecTV, Inc. v. Pepe, 431 F.3d 162, 169
(3d Cir. 2005).
126
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Title III: Government Access
The prohibitions in each of ECPA’s three parts—chapter 119 (Title III), chapter 121 (Stored
Communications Act), and chapter 206 (pen registers and trap and trace devices)—yield to the
need for government access, usually under judicial supervision.
Law Enforcement Wiretapping and Electronic Eavesdropping
Title III exempts federal and state law enforcement officials from its prohibitions on the
interception of wire, oral, and electronic communications under three circumstances: (1) pursuant
to or in anticipation of a court order,130 (2) with the consent of one of the parties to the
communication;131 and (3) with respect to the communications of an intruder within an electronic
communications system.132
To secure a Title III interception order as part of a federal criminal investigation, a senior Justice
Department official must approve the application for the court order authorizing the interception
of wire or oral communications.133 The procedure is only available where there is probable cause
to believe that the wiretap or electronic eavesdropping will produce evidence of one of a long, but
not exhaustive, list of federal crimes,134 or of the whereabouts of a “fugitive from justice” fleeing
130
18 U.S.C. 2516-2518.
18 U.S.C. 2511(2)(c).
132
18 U.S.C. 2511(2)(i)(“It shall not be unlawful under this chapter for a person acting under color of law to intercept
the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected
computer, if—(I) the owner or operator of the protected computer authorizes the interception of the computer
trespasser’s communications on the protected computer; (II) the person acting under color of law is lawfully engaged in
an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the
computer trespasser’s communications will be relevant to the investigation; and (IV) such interception does not acquire
communications other than those transmitted to or from the computer trespasser”).
A computer trespasser is a person who: (A) “accesses a protected computer without authorization and thus has no
reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and
(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual
relationship with the owner or operator of the protected computer for access to all or part of the protected computer,”
18 U.S.C. 2510(21).
133
“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 or acting Deputy Assistant Attorney
General in the Criminal Division specially designated by the Attorney 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 evidence of [the predicate offenses]....” 18 U.S.C.
2516(1).
Subsection 2516(1) “plainly calls for the prior, informed judgment of enforcement officers desiring court approval for
intercept authority, and investigative personnel may not themselves ask a judge for authority to wiretap or eavesdrop.
The mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition
of any judicial order,” United States v. Giordano, 416 U.S. 505, 515-16 (1974). Evidence generated without such senior
approval must be suppressed, id. at 23. However, “suppression is not warranted ... when a wiretap application or order
either misidentifies a DOJ official who could not legally authorize the wiretap or, ... identifies no official at all, so long
as the record shows that a statutorily designated official actually gave the authorization,” United States v. Gray, 521
F.3d 514, 526-27 (6th Cir. 2008), citing in accord, United States v. Callum, 410 F.3d 571, 576 (9th Cir. 2005); United
States v. Radcliff, 331 F.3d 1153, 1160-163 (10th Cir. 2003); United States v. Fudge, 325 F.3d 910, 918 (7th Cir. 2003).
134
The list appears in 18 U.S.C. 2516(1).
131
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from prosecution of one of the offenses on the predicate offense list.135 Any federal prosecutor
may approve an application for a court order under section 2518 authorizing the interception of
email or other electronic communications and the authority extends to any federal felony rather
than more limited list of federal felonies upon which a wiretap or bug must be predicated.136
At the state level, the principal prosecuting attorney of a state or any of its political subdivisions
may approve an application for an order authorizing wiretapping or electronic eavesdropping
based upon probable cause to believe that it will produce evidence of a felony under the state
laws covering murder, kidnaping, gambling, robbery, bribery, extortion, drug trafficking, or any
other crime dangerous to life, limb or property. State applications, court orders and other
procedures must at a minimum be as demanding as federal requirements.137
Applications for a court order authorizing wiretapping and electronic surveillance include:
•
the identity of the applicant and the official who authorized the application;
•
a full and complete statement of the facts including
•
details of the crime,
•
a particular description of the nature, location and place where the
interception is to occur,138
•
a particular description of the communications to be intercepted, and
•
the identities (if known) of the person committing the offense and of the
persons whose communications are to be intercepted;
•
a full and complete statement of the alternative investigative techniques used or
an explanation of why they would be futile or dangerous;
•
a statement of the period of time for which the interception is to be maintained
and if it will not terminate upon seizure of the communications sought, a
probable cause demonstration that further similar communications are likely to
occur;
•
a full and complete history of previous interception applications or efforts
involving the same parties or places;
•
in the case of an extension, the results to date or explanation for the want of
results; and
•
any additional information the judge may require.139
135
18 U.S.C. 2516(1)(l).
“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 electronic
communications by an investigative or law enforcement officer 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,” 18 U.S.C. 2516(3); e.g., United States v. Benjamin, 72 F.Supp.2d 161, 189 (W.D.N.Y. 1999).
137
18 U.S.C. 2516(2).
138
Identification of the place where, or facilities over which, the targeted communications are to occur may be excused
where the court finds that the suspect has or will take steps to thwart interception, 18 U.S.C. 2518(11), (12); United
States v. Oliva, 686 F.3d 1106, 1109-110 (9th Cir. 2012).
136
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Before issuing an order authorizing interception, the court must find:
•
probable cause to believe that an individual is, has or is about to commit one or
more of the predicate offenses;
•
probable cause to believe that the particular communications concerning the
crime will be seized as a result of the interception requested;
•
probable cause to believe that “the facilities from which, or the place where, the
wire, oral, or electronic communications are to be intercepted are being used, or
are about to be used, in connection with the commission of such offense, or are
leased to, listed in the name of, or commonly used by such person”;140 and
•
that normal investigative procedures have been or are likely to be futile or too
dangerous.”141
Subsections 2518(4) and (5) demand that any interception order include:
•
the identity (if known) of the persons whose conversations are to be intercepted;
•
the nature and location of facilities and place covered by the order;
•
a particular description of the type of communication to be intercepted and an
indication of the crime to which it relates;
•
the individual approving the application and the agency executing the order;
(...continued)
139
18 U.S.C. 2518(1), (2).
140
18 U.S.C. 2518(3). Paragraphs 2518(3)(a) and (b) mirror the probable demands of the Fourth Amendment, i.e., that
the court find probable cause to believe that the interception will capture evidence of a specific offense, United States v.
Abu-Jihaad, 630 F.3d 102, 122 (2d Cir. 2010), citing, Dalia v. United States, 441 U.S. 238, 255 (1979). Title III,
however, provides its own particularity requirements relating to targets, facilities, locations, and crimes, United States
v. Gaines, 639 F.3d 423, 430 (8th Cir. 2011), citing inter alia, United States v. Donovan, 429 U.S. 413, 427 n.15 (1977).
141
18 U.S.C. 2518(3). As for the necessity requirement of paragraph 2518(3)(c), the Supreme Court explained in the
infancy of Title III that: “[I]t is at once apparent that [Title III] not only limits the crimes for which intercept authority
may be obtained but also imposes important preconditions to obtaining any intercept authority at all. Congress
legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear
intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant
the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as
the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal
investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too
dangerous. §§2518(1)(c) and (3)(c),” United States v. Giordano, 416 U.S. 505, 515 (1974).
Thus, “[t]he necessity requirement was intended to ensure that wiretaps are not used as the initial step in a criminal
investigation. However, officials need not exhaust every conceivable investigative technique before obtaining a
wiretap.” United States v. Forrester, 616 F.3d 929, 944 (9th Cir. 2010)(internal citations omitted); see also, United
States v. Long, 639 F.3d 293, 301 (7th Cir. 2011)(internal citations omitted)(“While this necessity requirement
discourages the use of wiretaps as a first-line investigative tool in the mine run of cases, it was not intended to ensure
that wiretaps are used only as a last resort in an investigation. Hence, the government’s burden of establishing necessity
is not high, and whether it met the burden is reviewed in a practical, common-sense fashion”); United States v. Glover,
681 F.3d 411, 420 (D.C.Cir. 2012)(“That [necessity] requirement is satisfied when traditional investigative techniques
have proved inadequate to reveal the operation’s full nature and scope”); United States v. Perez, 661 F.3d 568, 581 (1st
Cir. 2011); United States v. Foy, 641 F.3d 455, 464 (10th Cir. 2011); United States v. Wilson, 484 F.3d 267, 281 (4th
Cir. 2007).
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•
the period of time during which the interception may be conducted and an
indication of whether it may continue after the communication sought has been
seized;
•
an instruction that the order shall be executed
•
•
as soon as practicable, and
•
so as to minimize the extent of innocent communication seized;142 and
upon request, a direction for the cooperation of communications providers and
others necessary or useful for the execution of the order.143
Compliance with these procedures may be postponed briefly until after the interception effort has
begun, upon the approval of senior Justice Department officials in emergency cases involving
organized crime or national security threatening conspiracies or involving the risk of death or
serious injury.144
The court orders remain in effect only as long as required but not more than 30 days. After 30
days, the court may grant 30 day extensions subject to the procedures required for issuance of the
original order.145 During that time the court may require progress reports at such intervals as it
considers appropriate.146 Intercepted communications are to be recorded and the evidence secured
and placed under seal (with the possibility of copies for authorized law enforcement disclosure
and use) along with the application and the court’s order.147
142
Under subsection 2518(5), officers executing an interception order must make efforts to minimize the capture of
communications that are outside the scope of the orders; United States v. De La Cruz Suarez, 601 F.3d 1202, 1215 (11th
Cir. 2010). Whether their efforts are sufficient is matter governed by the circumstances surrounding the interception,
Scott v. United States, 436 U.S. 128, 135-37 (1978); United States v. Glover, 681 F.3d 411, 420-21 (D.C.Cir. 2012);
United States v. West, 589 F.3d 936, 939-40 (8th Cir. 2009); United States v. Yarbrough, 527 F.3d 1092, 1098 (10th Cir.
2008)(“In United States v. Willis, this court articulated the proper procedure for determining the reasonableness of
governmental efforts to avoid monitoring non-pertinent calls. 890 F.2d 1099, 1102 (10th Cir. 1989). The government
must make an initial prima facie showing of reasonable minimization. Id. ‘Once the government has made a prima facie
showing of reasonable minimization, the burden then shifts to the defendant to show more effective minimization could
have taken place.” Id. In determining whether the government has made a prima facie showing of reasonable efforts to
minimize the interception of non-pertinent calls, we consider the factors identified by the Supreme Court in Scott: (1)
whether a large number of the calls are very short, one-time only, or in guarded or coded language; (2) the breadth of
the investigation underlying the need for the wiretap; (3) whether the phone is public or private; and (4) whether the
non-minimized calls occurred early in the surveillance. 436 U.S. at 140-41. It is also appropriate to consider (5) the
extent to which the authorizing judge supervised the ongoing wiretap. United States v. Lopez, 300 F.3d 46, 57 (1st Cir.
2002); United States v. Daly, 535 F.2d 434, 442 (8th Cir. 1976); United States v. Vento, 533 F.2d 838, 853 (3d Cir.
1976)”).
143
18 U.S.C. 2518(4).
144
18 U.S.C. 2518(7). An observation made a quarter of a century ago remains true: “very little case-law interpretation
of the emergency requirement exists,” United States v. Crouch, 666 F.Supp. 1414, 1416 (N.D. Cal. 1987)(holding that
twenty-day-old information indicating the defendants would commit a bank robbery within the next sixty days did not
constitute a sufficient emergency to justify invocation of subsection 2518(7)); but see, Nabozny v. Marshall, 781 F.2d
83, 84-5 (6th Cir. 1986)(holding with respect to a hostage situation “an emergency situation existed within the terms of
the statute”).
145
18 U.S.C. 2518(5).
146
18 U.S.C. 2518(6).
147
18 U.S.C. 2518(8)(a),(b). Paragraph 2518(8)(a) requires that court ordered interceptions be recorded and that the
recording immediately be sealed by the court, upon expiration of the interception authority. The seal or a satisfactory
explanation for its absence is a prerequisite to the admissibility of the contents or anything derived from the contents as
(continued...)
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Within 90 days of the expiration of the order those whose communications have been intercepted
are entitled to notice, and evidence secured through the intercept may be introduced into evidence
with 10 days’ advance notice to the parties.148
Title III also describes conditions under which information derived from a court ordered
interception may be disclosed or otherwise used. It permits disclosure and use for official
purposes by:
•
other law enforcement officials including foreign officials;149
•
federal intelligence officers to the extent that it involves foreign intelligence
information;150
•
other American or foreign government officials to the extent that it involves the
threat of hostile acts by foreign powers, their agents, or international terrorists.151
It also allows witnesses testifying in federal or state proceedings to reveal the results of a Title III
tap,152 provided the intercepted conversation or other communication is not privileged.153
(...continued)
evidence.
“The ‘absence’ the Government must satisfactorily explain encompasses not only the total absence of a seal but also the
absence of a timely applied seal,” United States v. Ojeda Rios, 495 U.S. 257, 263 (1990). “[T]he ‘satisfactory
explanation’ language in §2518(8)(a) must be understood to require that the Government explain not only why a delay
occurred but also why it is excusable,” Id. at 265; United States v. Martin, 618 F.3d 705, 716, 718 (7th Cir. 2010)(some
internal citations omitted)(“[W]hat should be deemed ‘satisfactory’ in the context of a statute aimed at preventing
government tampering with electronic evidence must depend largely on the statutory objective. A satisfactory
explanation must dispel any reasonable suspicion of tampering, and also must be both accurate and believable. Whether
the explanation is satisfactory also may depend on the delay in sealing, unique pressure on the Government to obtain a
conviction due to particularly notorious charges or defendants, the importance of the recordings to the Government’s
case and whether the Government has established a procedure for complying with its sealing obligations.... Cf. United
States v. Quintero, 38 F.3d 1317, 1328-330 (3d Cir. 1994) (rejecting the prosecutor’s heavy workload as a satisfactory
explanation for a sealing delay because to do so ‘would be rendering extraordinary that which is ordinary’); United
States v. Carson, 969 F.2d 1480, 1498 (3d Cir. 1992) (rejecting the need to enhance the audibility of tapes as a
satisfactory explanation for a sealing delay because that need was “readily foreseeable and could just as readily become
routine”); but see, United States v. Bansal, 663 F.3d 634, 651-53 (3d Cir. 2011)(finding the government’s reasonable
mistake of fact a satisfactory explanation for its failure to seal in a timely manner).
The section does not preclude use or disclosure other than admissibility of the intercepted contents in judicial
proceedings, United States v. Amanuel, 615 F.3d 117, 125-28 (2d Cir. 2010)(uphold the admissibility of evidence
secured under a warrant based on interceptions that were recorded in violation of section 2518(8)(a)).
148
18 U.S.C. 2518(8)(d), (9).
149
18 U.S.C. 2517(1), (2), (5), (7). This includes the disclosures to a criminal defendant required in 18 U.S.C. 2518(9),
cf., SEC v. Rajaratnam, 622 F.3d 159, 172-87 (2d Cir. 2010)(holding that a government attorney may disclose wiretap
communications to a criminal defendant under 18 U.S.C. 2517(2) and that under some circumstances the defendant
may be compelled to disclose them in the context of a governmental civil enforcement action).
150
18 U.S.C. 2517(6). “‘[F]oreign intelligence information,’ for purposes of section 2517(6) of this title, means—(A)
information, whether or not concerning a United States person, that relates to the ability of the United States to protect
against—(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (ii)
sabotage or intentional terrorism by a foreign power or an agent of a foreign power; or (iii) clandestine intelligence
activities by and intelligence service or network of a foreign power or by an agent of a foreign power; or (B)
information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that
relates to—(i) the national defense or the security of the United States; or (ii) the conduct of the foreign affairs of the
United States,” 18 U.S.C. 2510(19).
151
18 U.S.C. 2518(8).
152
18 U.S.C. 2517(3), (5).
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Without a Title III order and without offending Title III, authorities may intercept the wire, oral,
or electronic communications, it they have the consent of one of the parties to the
communication.154 As noted earlier, consent may be either explicitly or implicitly given. For
instance, someone who uses a telephone other than his or her own and has been told by the
subscriber that conversations over the instrument are recorded has been held to have implicitly
consented to interception when using the instrument.155 This is not to say that subscriber consent
alone is sufficient, for it is the parties to the conversation whose privacy is designed to be
protected.156 Although consent may be given in the hopes of leniency from law enforcement
officials or as an election between unpalatable alternatives, it must be freely given and not
secured coercively.157
Little judicial or academic commentary accompanies the narrow “computer trespasser”
justification for governmental interception of electronic communications in paragraph
2511(2)(i).158 The paragraph originated as a temporary provision in the USA PATRIOT Act,159 and
seems designed to enable authorities to track intruders who would surreptitiously use the
computer systems of others to cover their trail.160
Title III: Consequences of a Violation
Criminal Penalties
Interception, use, or disclosure in violation of Title III is generally punishable by imprisonment
for not more than five years and/or a fine of not more than $250,000 for individuals and not more
than $500,000 for organizations.161 The same penalties apply to the unlawful capture of cell
(...continued)
153
18 U.S.C. 2517(4).
154
18 U.S.C. 2511(2)(c).
155
United States v. Verdin-Garcia, 516 F.3d 884, 894-95 (10th Cir. 2008) (inmate use of prison phone); United States v.
Friedman, 300 F.3d 111, 122-23 (2d Cir. 2002)(same); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002)
(same); United States v. Footman, 215 F.3d 145, 154-55 (1st Cir. 2000) (same); Griggs-Ryan v. Smith, 904 F.2d 112,
116-17 (1st Cir. 1990) (use of landlady’s phone); United States v. Rivera, 292 F. Supp.2d 838, 843-45 (E.D.Va. 2003)
(inmate use of prison phone monitored by private contractors); see also, United States v. Conley, 531 F.3d 56, 58-9 (1st
Cir. 2008)(explicit consent as a condition for phone privileges).
156
Anthony v. United States, 667 F.2d 870, 876 (10th Cir. 1981).
157
United States v. Antoon, 933 F.2d 200, 203-204 (3d Cir. 1991). But see, O’Ferrell v. United States, 968 F.Supp.
1519, 1541 (M.D.Ala. 1997) (an individual who spoke to his wife on the telephone after being told by FBI agents who
were then executing a search warrant at his place of business that he could only speak to her with the agents listening in
consented to the interception, even if FBI’s initial search was unconstitutional).
158
See, Clemnts-Jeffrey v. Springfield, 810 F.Supp.2d 857, 871-72 (S.D.Ohio 2011)(“As Plaintiffs correctly point out,
§2511(2)(i) is completely inapposite because the Absolute Defendants, who intercepted Plaintiffs’ electronic
communications, were not ‘acting under color of law’”).
159
Section 217, P.L. 107-56, 115 Stat. 291 (2001).
160
Implementation of the USA PATRIOT Act: Crime, Terrorism and the Age of Technology: Hearing Before the
Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 2d sess.
30-1 (2005)(prepared statement of FBI Dep. Ass’t Director Steven M. Martinez).
161
“Except as provided in (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section
shall be fined under this title* or imprisoned not more than five years, or both.” 18 U.S.C. 2511(4)(a).
* Section 3559 of title 18 classifies as a felony any offense with a maximum penalty of imprisonment of more than one
(continued...)
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phone and cordless phone conversations, since the Homeland Security Act162 repealed the reduced
penalty provisions that at one time applied to the unlawful interceptions using radio scanners and
the like.163 There is a reduced penalty, however, for filching satellite communications as long as
the interception is not conducted for criminal, tortious, nor mercenary purposes: unauthorized
interceptions are broadly proscribed subject to an exception for unscrambled transmissions164 and
are subject to the general five-year penalty, but interceptions for neither criminal, tortious, nor
mercenary purposes subject offenders to only civil punishment.165 Equipment used to wiretap or
eavesdrop in violation of Title III is subject to confiscation by the United States, either in a
separate civil proceeding or a part of the prosecution of the offender.166
In addition to exemptions previously mentioned, Title III provides a defense to criminal liability
based on good faith.167
(...continued)
year; and as a Class A misdemeanor any offense with a maximum penalty of imprisonment set at between six months
and one year. Unless Congress clearly rejects the general fine ceilings it provides, section 3571 of title 18 sets the fines
for felonies at not more than $250,000 for individuals and not more than $500,000 for organizations, and for class A
misdemeanors at not more than $100,000 for individuals and not more than $200,000 for organizations. If there is
monetary loss or gain associated with the offense, the offender may alternatively be fined not more than twice the
amount of the loss or gain, 18 U.S.C. 3571.
162
116 Stat. 2158 (2002).
163
18 U.S.C. 2511(4)(b)(2000 ed.).
164
“(b) 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—(i) to a broadcasting station for purposes of
retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities open to the
public, but not including data transmissions or telephone calls, is not an offense under this subsection unless the
conduct is for the purpose of direct or indirect commercial advantage or private financial gain,” 18 U.S.C. 2511(4)(b).
165
“(5)(a)(I) If the communication is—(A) a private satellite video communication that is not scrambled or encrypted
and the conduct in violation of this chapter is the private viewing of that communication and is not for a tortious or
illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or (B) a radio
communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal
Communications Commission that is not scrambled or encrypted and the conduct in violation of this chapter is not for
tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then
the person who engages in such conduct shall be subject to suit by the Federal Government in a court of competent
jurisdiction. (ii) In an action under this subsection—(A) if the violation of this chapter is a first offense for the person
under paragraph (a) of subsection (4) and such person has not been found liable in a civil action under section 2520 of
this title, the Federal Government shall be entitled to appropriate injunctive relief; and (B) if the violation of this
chapter is a second or subsequent offense under paragraph (a) of subsection (4) or such person has been found liable in
any prior civil action under section 2520, the person shall be subject to a mandatory $500 civil fine.
“(b) The court may use any means within its authority to enforce an injunction issued under paragraph (ii)(A), and shall
impose a civil fine of not less than $500 for each violation of such an injunction.” 18 U.S.C. 2511(5).
Under 18 U.S.C. 2520, victims may recover the greater of actual damages or statutory damages of not less than $50 and
not more than $500 for the first offense; those amounts are increased to $100 and $1000 for subsequent offenses.
166
18 U.S.C. 2513 (“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 ... ”); 18 U.S.C. 983(a)(3)(C)(“In lieu of, or in addition to, filing a civil forfeiture complaint, the
Government may include a forfeiture allegation in a criminal indictment ... ”).
167
“A good faith reliance on—(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a
statutory authorization; (2) a request of an investigative or law enforcement officer under section 2518(7) of this title;
or (3) a good faith determination that section 2511(3) [electronic communications provider authority to disclose content
of an electronic 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
(continued...)
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Civil Liability
Victims of a violation of Title III may be entitled to equitable relief, damages (equal to the greater
of actual damages, $100 per day of violation, or $10,000),168 punitive damages, reasonable
attorney’s fees and reasonable litigation costs.169 A majority of federal courts hold that a court
may decline to award damages, attorneys’ fees and costs, but a few still consider such awards
mandatory.170 In addition, a majority hold that governmental entities other than the United States
may be liable for violations of section 2520171 and that law enforcement officers enjoy a qualified
immunity from suit under section 2520.172
The cause of action created in section 2520 is subject to a good faith defense.173 Efforts to claim
the defense by anyone other than government officials or someone working at their direction have
(...continued)
divulgence is made to a law enforcement agency] or 2511(2)(I) [interception of communications of a trespasser in a
computer system] of this title permitted the conduct complained of; is a complete defense against any civil or criminal
action brought under this chapter or any other law,” 18 U.S.C. 2520(d).
168
The $10,000 lump sum for liquidated damages is limited to a single award per victim rather than permitting $10,000
multiples based on the number of violations or the number of types of violations, as long as the violations are
“interrelated and time compacted,” Smoot v. United Transportation Union, 246 F.3d 633, 642-645 (6th Cir. 2001);
Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711, 713 (1st Cir. 1999); see also, Dish Nework v. Delvecchio, 831
F.Supp.2d 595, 601 (W.D.N.Y. 2011)(“”Although a range is given for violations under 2520(c)(1), Congress provided
no such range under 2520(c)(2). Therefore, in the Court’s view, the discretion provided to it allows it only to decide
between no damages and $10,000”).
169
18 U.S.C. 2520(b), (c).
170
Compare, e.g., DirecTV, Inc. v. Barczewski, 604 F.3d 1004, 1006-1008 (7th Cir. 2010); DirecTV, Inc. v. Brown, 371
F.3d 814, 818 (11th Cir. 2004); Dorris v. Absher, 179 F.3d, 420, 429-30 (6th Cir. 1999); Nalley v. Nalley, 53 F.3d 649,
651-53 (4th Cir. 1995), Reynolds v. Spears, 93 F.3d 428, 433 (8th Cir. 1996); DirecTV, Inc. v. Neznak, 371 F.Supp.2d
130, 133-34 (D.Conn. 2005) (each concluding that courts have discretion), with, Rodgers v. Wood, 910 F.2d 444, 44749 (7th Cir. 1990) and Menda Biton v. Menda, 812 F.Supp. 283, 284 (D. Puerto Rico 1993) (courts have no such
discretion) (note that after Menda, the First Circuit in Desilets v. Wal-Mart Stores, Inc., 171 F.3d at 716-17 treated as a
matter for the trial court’s discretion the question of whether the award of plaintiff’s attorneys’ fees should be reduced
when punitive damages have been denied).
Section 2520(c) has a second statutory damage provision, available for violations involving private satellite videos or
radio communications, 18 U.S.C. 2520(c)(1). This provision is more clearly mandatory (18 U.S.C. 2520(c)(1): “the
court shall access damages” versus 18 U.S.C. 2520(c)(2): “the court may assess as damages”)(emphasis added in both
instances).
171
Adams v. Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001); Organizacion JD Ltda. v. United States Department of
Justice, 18 F.3d 91, 94-5 (2d Cir. 1994); Garza v. Bexar Metropolitan Water District, 639 F.Supp.2d 770, 773-74
(W.D.Tex. 2009); Connor v. Tate, 130 F.Supp.2d 1370, 1374 (N.D.Ga. 2001); Dorris v. Absher, 959 F.Supp. 813, 820
(M.D.Tenn. 1997), aff’d/rev’d in part on other grounds, 179 F.3d 420 (6th Cir. 1999); PBA Local No. 38 v. Woodbridge
Police Department, 832 F.Supp. 808, 822-23 (D.N.J. 1993) (each concluding that governmental entities may be held
liable); contra, Abbott v. Winthrop Harbor, 205 F.3d 976, 980 (7th Cir. 2000); Amati v. Woodstock, 176 F.3d 952, 956
(7th Cir. 1999).
172
Narducci v. Moore, 572 F.3d 313, 323 (7th Cir. 2009); Tapley v. Collins, 211 F.3d 1210, 1216 (11th Cir. 2000);
Blake v. Wright, 179 F.3d 1003, 1011-13(6th Cir. 1999); Babb v. Eagleton, 614 F.Supp.2d 1232, 1237-238 (N.D.Okla.
2008); contra, Berry v. Funk, 146 F.3d 1003, 1013 (D.C.Cir. 1998); see generally, Qualified Immunity as Defense in
Suit Under Federal Wiretap Act (18 U.S.C.A. §§2510 et seq.), 178 ALR FED. 1.
173
18 U.S.C. 2520(d) (“A good faith reliance on—(1) a court warrant or order, a grand jury subpoena, a legislative
authorization, or a statutory authorization; (2) a request of an investigative or law enforcement officer under section
2518(7) of this title; or (3) a good faith determination that section 2511(3) or 2511(2)(i) of this title permitted the
conduct complained of; [—] is a complete defense against any civil or criminal action brought under this chapter or any
other law”); SEC v. Rajaratnam, 622 F.3d 159, 175 (2d Cir. 2010); Clements-Jeffrey v. Springfield, 810 F.Supp.2d 857,
872 (S.D. Ohio 2011).
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been largely unsuccessful.174 Moreover, as addressed more extensively below, the 2008 Foreign
Intelligence Surveillance Amendments Act, under some circumstances, bars any state or federal
cause of action against anyone who assists the government with the installation or use of a means
of electronic eavesdropping or electronic surveillance.175
Civil Liability of the United States
The USA PATRIOT Act authorizes a cause of action against the United States for willful
violations of Title III, the Foreign Intelligence Surveillance Act or the provisions governing stored
communications in 18 U.S.C. 2701-2712.176 Successful plaintiffs are entitled to the greater of
$10,000 or actual damages, and reasonable litigation costs.177
Administrative Action
Upon a judicial or administrative finding of a Title III violation suggesting possible intentional or
willful misconduct on the part of a federal officer or employee, the federal agency or department
involved may institute disciplinary action. It is required to explain to its Inspector General’s
office if it declines to do so.178
Attorney Discipline
At one time, the American Bar Association (ABA) considered it ethical misconduct for an
attorney to intercept or record a conversation without the consent of all of the parties to the
conversation, ABA Formal Op. 337 (1974). The reaction of state regulatory authorities with the
174
Williams v. Poulos, 11 F.3d 271, 285 (1st Cir. 1993); United States v. Wuliger, 981 F.2d 1497, 1507 (6th Cir. 1992);
Rice v. Rice, 951 F.2d 942, 944-45 (8th Cir. 1991); but see, McCready v. eBay, 453 F.3d 882, 892 (7th Cir. 2006).
175
50 U.S.C. 1885a(“Notwithstanding any other provision of law, a civil action may not lie or be maintained in a
Federal or State court against any person for providing assistance to an element of the intelligence community, and
shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such
action is pending that - (1) any assistance by that person was provided pursuant to an order of the court established
under section 1803(a) of this title [relating to electronic surveillance under FISA] directing such assistance; (2) any
assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B)[relating to
the Attorney General’s assurance that no court approval is required] or 2709(b)[relating to a national security letter] of
title 18; (3) any assistance by that person was provided pursuant to a directive under section 1802(a)(4)[relating to
electronic surveillance without a court order under FISA] ... or 1881a(h)[relating to communications of overseas targets
under FISA] of this title directing such assistance; [or] (4) in the case of a covered civil action, the assistance alleged to
have been provided by the electronic communication service provider was—(A) in connection with an intelligence
activity involving communications that was - (i) authorized by the President during the period beginning on September
11, 2001, and ending on January 17, 2007 ... ”).
176
18 U.S.C. 2712.
177
18 U.S.C. 2712(a).
178
“If a court or appropriate department or agency determines that the United States or any of its departments or
agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the
circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the
United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt
of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly
initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head
of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the
Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General
with the reasons for such determination,” 18 U.S.C. 2520(f).
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power to discipline professional misconduct was mixed. Some agreed with the ABA.179 Some
agreed with the ABA, but expanded the circumstances under which recording could be conducted
within ethical bounds.180 Some disagreed with the ABA view.181 The ABA has since repudiated its
earlier position, ABA Formal Op. 01-422 (2001). Attorneys who engage in unlawful wiretapping
or electronic eavesdropping will remain subject to professional discipline in every jurisdiction.182
In light of the ABA’s change of position, courts and bar associations have had varied reactions to
lawful wiretapping or electronic eavesdropping by members of the bar.183
179
Ala. Opinion 84-22 (1984); People v. Smith, 778 P.2d 685, 686, 687 (Colo. 1989); Haw. Formal Opinion No. 30
(1988); Ind.State Bar Ass’n Op.No.1 (2000); Iowa State Bar Ass’n v. Mollman, 488 N.W.2d 168, 169-70, 171-72 (Iowa
1992); Mo.Advisory Comm. Op. Misc. 30 (1978); Tex.Stat.Bar Op. 514 (1996); Va. LEO #1635 (1995), Va. LEO
#1324; Gunter v. Virginia State Bar, 238 Va. 617, 621-22, 385 S.E.2d 597, 600 (1989).
The federal courts seem to have been in accord, Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983); Moody v. IRS, 654
F.2d 795 (D.C.Cir. 1981); Ward v. Maritz, Inc., 156 F.R.D. 592 (D.N.J. 1994); Wilson v. Lamb, 125 F.R.D. 142
(E.D.Ky. 1989); Haigh V. Matsushita Electric Corp., 676 F.Supp. 1332 (E.D.Va. 1987).
180
Ariz. Opinion No. 95-03 (1995); Alaska Bar Ass’n Eth.Comm. Ethics Opinions No. 95-5 (1995) and No. 91-4
(1991); Idaho Formal Opinion 130 (1989); Kan.Bar.Ass’n Opinion 96-9 (1997); Ky.Opinion E-279 (1984);
Minn.Law.Prof. Resp.Bd. Opinion No. 18 (1996); Ohio Bd.Com.Griev.Disp. Opinion No. 97-3 (1997); S.C. Ethics
Advisory Opinion 92-17 (1992); Tenn.Bd.Prof.Resp. Formal Ethics Opinion No. 86-F-14(a) (1986).
181
D.C. Opinion No. 229 (1992) (recording was not unethical because it occurred under circumstances in which the
uninformed party should have anticipated that the conversation would be recorded or otherwise memorialized);
Mississippi Bar v. Attorney ST., 621 So.2d 229 (Miss. 1993)(context of the circumstances test); Conn.Bar Ass’‘n Op.
98-9 (1998)(same); Mich.State Bar Op. RI-309 (1998)(same); Me.State Bar Op.No. 168 (1999)(same); N.M.Opinion
1996-2 (1996)(members of the bar are advised that there are no clear guidelines and that the prudent attorney avoids
surreptitious recording); N.C. RPC 171 (1994)(lawyers are encouraged to disclose to the other lawyer that a
conversation is being tape recorded); Okla.Bar Ass’n Opinion 307 (1994)(a lawyer may secretly recording his or her
conversations without the knowledge or consent of other parties to the conversation unless the recording is unlawful or
in violation of some ethical standard involving more than simply recording); Ore.State Bar Ass’n Formal Opinion No.
1991-74 (1991) (an attorney with one party consent he or she may record a telephone conversation “in absence of
conduct which would reasonably lead an individual to believe that no recording would be made”); Utah State Bar
Ethics Advisory Opinion No. 96-04 (1996) (“recording conversations to which an attorney is a party without prior
disclosure to the other parties is not unethical when the act, considered within the context of the circumstances, does
not involve dishonesty, fraud, deceit or misrepresentation”); Wis.Opinion E-94-5 (“whether the secret recording of a
telephone conversation by a lawyer involves ‛dishonesty, fraud, deceit or misrepresentation’ under SCR 20:8.4(c)
depends upon all the circumstances operating at the time”). In New York, the question of whether an attorney’s
surreptitiously recording conversations is ethically suspect is determined by locality, compare, Ass’n of the Bar of City
of N.Y. Formal Opinion No. 1995-10 (1995)(secret recording is per se unethical), with, N.Y.County Lawyer’s Ass’n
Opinion No. 696 (1993)(secret recording is not per se unethical).
182
Cf., Nissan Motor Co., Ltd. v. Nissan Computer Corp., 180 F.Supp.2d 1089, 1095-97 (C.D.Cal. 2002).
183
E.g., State v. Murtagh, 169 P.3d 602, 617-18 (Alaska 2007)(“undisclosed recording is not unethical”); In re
Crossen, 450 Mass. 533, 558, 880 N.E.2d 352, 372 (2008) (undisclosed recording was unethical where it was part of
scheme to coerce or manufacture testimony against the judge presiding over pending litigation); Midwest Motor Sports
v. Arctic Cat Sales, Inc., 347 F.3d 693, 699 (8th Cir. 2003) (citing ABA Comm. on Ethics and Prof’l Responsibility,
Formal Op. 01-422, which states that recording without consent should be prohibited when circumstances make it
unethical); United States v. Smallwood, 365 F. Supp.2d 689, 697-98 (E.D. Va. 2005) (holding that a lawyer cannot
ethically record a conversation without the consent of all parties, even though doing so is not illegal under Virginia
law). Declaring the new ABA opinion to be an “overcorrection,” one bar association explained that secret taping should
not be routine practice, but that it should be permitted if it advances a “societal good.” Ass’n of the Bar of the City of
New York Formal Opinion No. 2003-02 (2003). For a New York state bar opinion employing a similar line of
reasoning, see, Mena v. Key Food Stores Co-operative, Inc., 758 N.Y.S.2d 246, 247-50 (N.Y. Sup. Ct. 2003) (conduct
of attorney who obtained a private investigator’s services for a client and instructed the client on the use of recording
equipment held not to warrant severe sanctions, because there was a compelling public interest in exposing the racial
discrimination that was the subject of the secret recordings); see also, S.C. Bar Ethics Advisory Op. 08-13 (November
14, 2008)(noting that the S.C. ethical prohibition on undisclosed recording by attorneys, based on the earlier ABA
opinion, had not been withdrawn); Tex. Ethics Op. 575 (November 2006)(undisclosed recording by an attorney is not a
per se violation of the Texas Disciplinary Rules of Professional Conduct); Mo. Formal Advisory Op. 123 (March 8,
(continued...)
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Exclusion of Evidence
When the federal wiretap statute prohibits disclosure, the information is inadmissible as evidence
before any federal, state, or local tribunal or authority.184 Individuals whose conversations have
been intercepted or against whom the interception was directed185 have standing to claim the
benefits of the section 2515 exclusionary rule through a motion to suppress under 18 U.S.C.
2518(10)(a). Paragraph 2518(10)(a) bars admission as long as the evidence is the product of (1)
an unlawful interception, (2) an interception authorized by a facially insufficient court order, or
(3) an interception executed in manner substantially contrary to the order authorizing the
interception. Mere technical noncompliance is not enough; the defect must be of a nature that
substantially undermines the regime of court-supervised interception for law enforcement
purposes.186
Although the Supreme Court has held that section 2515 may require suppression in instances
where the Fourth Amendment exclusionary rule would not,187 some of the lower courts have
recognized the applicability of the good faith exception to the Fourth Amendment exclusionary
rule in section 2515 cases.188 Other courts have held, moreover, that the fruits of an unlawful
wiretapping or electronic eavesdropping may be used for impeachment purposes.189
(...continued)
2006)(agreeing with ABA Formal Opinion 01-422); see generally, CRS Report R42650, Wiretapping, Tape Recorders,
and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation.
184
“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication
and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before
any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the
United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of
this chapter,” 18 U.S.C. 2515 (emphasis added); United States v. Chavez, 416 U.S. 562, 570 (1974); United States v.
Lnu, 575 F.3d 298, 301 (3d Cir. 2009); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D.Cal. 2003). Note
that suppression does not extend to unlawfully intercepted electronic communications, United States v.
Amanuel, 615 F.3d 117, 125 (2d Cir. 2010); United States v. Steiger, 318 F.3d 1039, 1050-52 (11th Cir. 2003); United
States v. Jones, 364 F. Supp.2d 1303, 1308-09 (D.Utah 2005); nor does it extend to evidence secured in violation the
pen register/trap and trace provisions, United States v. German, 486 F.3d 849, 852-53 (5th Cir. 2007).
185
18 U.S.C. 2510(11)(“‘aggrieved person’ means a person who was a party to any an intercepted wire, oral, or
electronic communication or a person against whom the interception was directed”); United States v. Oliva, 686 F.3d
1106, 1108-109 (9th Cir. 2012).
186
United States v. Lomeli, 676 F.3d 734, 739 (8th Cir. 2012)(internal citations omitted)(“Suppression is not justified if
the facial insufficiency of the wiretap order is not more than a technical defect. According to Moore, our analysis is two
tiered, first identifying the omission or defect at issue ... and second, determining whether that defect violates a core
statutory requirement or whether it is a mere technical defect not warranting suppression”); see also, United States v.
Lopez, 300 F.3d 46, 55-6 (1st Cir. 2002); United States v. Staffeldt, 451 F.3d 578, 582-85 (9th Cir. 2006); United States
v. Gray, 521 F.3d 514, 522 (6th Cir. 2008); United States v. Foy, 641 F.3d 455, 463 (10th Cir. 2011). This is the case
even where the court is clearly troubled by the government’s failure to comply with the requirements of Title III,
United States v. Callum, 410 F.3d 571, 579 (9th Cir. 2005)(“Under the force of precedent, we uphold the challenged
wiretap applications and orders. Still, we note that the Department of Justice and its officers did not cover themselves
with glory in obtaining the wiretap orders at issue in this case. Title III is an exacting statute obviously meant to be
followed punctiliously, yet the officers repeatedly ignored its clear requirements”).
187
Gelbard v. United States, 408 U.S. 41, 52 (1972).
188
United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994); United States v. Ambrosio, 898 F.Supp. 177, 187
(S.D.N.Y. 1995); United States v. Malelzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988); United States v. Mullen, 451
F.Supp.2d 509, 530-31 (W.D.N.Y. 2006); contra, United States v. Rice, 478 F.3d 704, 711-14 (6th Cir. 2007).
Gelbard held that a grand jury witness might claim the protection of section 2515 through a refusal to answer questions
based upon an unlawful wiretap notwithstanding the fact that the Fourth Amendment exclusionary rule does not apply
in grand jury proceedings. Gelbard, 408 U.S. at 51-52. The good faith exception to the Fourth Amendment
(continued...)
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The admissibility of tapes or transcripts of tapes of intercepted conversations raise a number of
questions quite apart from the legality of the interception. As a consequence of the prerequisites
required for admission, privately recorded conversations are more likely to be found inadmissible
than those recorded by government officials. Admissibility will require the party moving for
admission to show that the tapes or transcripts are accurate, authentic and trustworthy.190 For
some courts this demands a showing that, “(1) the recording device was capable of recording the
events offered in evidence; (2) the operator was competent to operate the device; (3) the recording
is authentic and correct; (4) changes, additions, or deletions have not been made in the recording;
(5) the recording has been preserved in a manner that is shown to the court; (6) the speakers on
the tape are identified; and (7) the conversation elicited was made voluntarily and in good faith,
without any kind of inducement.”191
Stored Communications Act (SCA)
SCA: Prohibitions
In its original form Title III was ill-suited to ensure the privacy of those varieties of modern
communications which are equally vulnerable to intrusion when they are at rest as when they are
in transmission. Surreptitious “access” is as least as great a threat as surreptitious “interception”
to the patrons of electronic mail (email), electronic bulletin boards, voice mail, pagers, and
remote computer storage.
(...continued)
exclusionary rule permits the admission of evidence secured in violation of the Fourth Amendment, if the officers
responsible for the breach were acting in good faith reliance upon the apparent authority of a search warrant or some
like condition negating the remedial force of the rule, United States v. Leon, 468 U.S. 897, 909 (1984).
189
United States v. Simels, 654 F.3d 161, 169-70 (2d Cir. 2011)(citing cases in accord); Culbertson v. Culbertson, 143
F.3d 825, 827-28 (4th Cir. 1998); United States v. Echavarria-Olarte, 904 F.2d 1391 (9th Cir. 1990); United States v.
Vest, 813 F.2d 477, 484 (1st Cir. 1987); cf., United States v. Crabtree, 565 F.3d 887, 891-92 (4th Cir. 2009)(noting that
the Circuit’s recognition of admissibility for impeachment purposes does not require recognition of a clean hands
exception under which the government may admit introduce illegal wiretap evidence as long as it was not involved in
the illegal interception).
190
United States v. Thompson, 130 F.3d 676, 683 (5th Cir. 1997); United States v. Panaro, 241 F.3d 1104, 1111 (9th
Cir. 2001); United States v. Smith, 242 F.3d 737, 741 (7th Cir. 2001).
191
United States v. Webster, 84 F.3d 1056, 1064 (8th Cir. 1996); United States v. Green, 175 F.3d 822, 830 n.3 (10th
Cir. 1999); United States v. Green, 324 F.3d 375, 379 (5th Cir. 2003)(citing 4 of the 7 factors); cf., United States v.
Calderin-Rodriguez, 244 F.3d 977, 986-87 (8th Cir. 2001). These seven factors have been fairly widely cited since they
were first announced in United States v. McKeever, 169 F.Supp. 426, 430 (S.D.N.Y. 1958), rev’d on other grounds,
271 F.2d 669 (2d Cir. 1959). They are a bit formalistic for some courts who endorse a more ad hoc approach to the
assessment of whether the admission of what purports to be a taped conversation will introduce fraud or confusion into
the court, e.g., Stringel v. Methodist Hosp. of Indiana, Inc., 89 F.3d 415, 420 (7th Cir. 1996)(McKeever “sets out a
rather formal, seven step checklist for the authentication of tape recordings, and we have looked to some of the features
[in the past]”); United States v. White, 116 F.3d 903, 921 (D.C.Cir. 1997)(“tapes may be authenticated by testimony
describing the process or system that created the tape or by testimony from parties to the conversation affirming that
the tapes contained an accurate record of what was said”); United States v. Tropeano, 252 F.3d 653, 661 (2d Cir.
2001)(“[T]his Circuit has never expressly adopted a rigid standard for determining the admissibility of tape
recordings”); United States v. Westmoreland, 312 F.3d 302, 310-11 (7th Cir. 2002); United States v. Dawson, 425 F.3d
389, 393 (7th Cir. 2005)(“But there are no rigid rules, such as chain of custody, for authentication; all that is required is
adequate evidence of genuineness. (There are such rules for electronic surveillance governed by Title III, but Title III is
inapplicable to conversations that, as here, are recorded with the consent of one of the participants)”).
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Accordingly, ECPA, in the Stored Communications Act (SCA), bans surreptitious access to
communications at rest, although it does so beyond the confines that apply to interception, 18
U.S.C. 2701 - 2711. These separate provisions afford protection for email, voice mail, and other
electronic communications only somewhat akin to that available for telephone and face to face
conversations under 18 U.S.C. 2510-2522. The SCA has two sets of proscriptions: a general
prohibition and a second applicable to only certain communications providers. The general
proscription makes it a federal crime to:
•
intentionally
•
either
•
access without authorization or
•
exceed an authorization to access
•
a facility through which an electronic communication service is provided
•
and thereby obtain, alter, or prevent authorized access to a wire or electronic
communication while it is in electronic storage in such system, 18 U.S.C.
2701(a).192
The prohibition extends only to “intentional” violations, that is, violations where the defendant
had as a conscious objective the forbidden conduct and proscribed result.193 The offense has three
essential components: access, to a facility through which service is supplied, and consequences
(obtain, alter, prevent access to a wire or electronic communication). The first requires either
unauthorized access or access in excess of authorization. The third requires either acquisition or
alteration of an electronic communication or denial of access to it. The courts have encountered
little difficulty in determining whether a defendant’s conduct constitutes obtaining, altering, or
preventing access to a communication. They have divided, however, over cases in which the
defendant was granted access to a communication but used access for the purposes other than that
for which it was authorized.194 The question is less divisive when the grant of access is expressly
limited195 or when an individual with authorized access provides an outsider with his user name
and password.196
192
E.g., State Analysis, Inc. v. American Financial Services Ass’n, 621 F.Supp.2d 309, 317-18 (E.D.Va. 2009); Pure
Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548, 555 (S.D.N.Y. 2008).
193
KLA-Tencor Corp. v. Murphy, 717 F.Supp.2d 895, 905 (N.D.Cal. 2010); Cardinal Health 414, Inc. v. Adams, 582
F.Supp.2d 967, 976 (M.D.Tenn. 2008).
194
Penrose Computer Marketgroup, Inc. v. Camin, 682 F.Supp.2d 202, 210-12 (N.D.N.Y. 2010) citing cases on each
side of the debate including cases under the Computer Fraud and Abuse Act (18 U.S.C. 1030) where the “access” terms
are used, e.g., Shurgard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc., 119 F.Supp.2d 1121, 1125 (W.D.Wash.
2000)(“[T]he authority of the plaintiff’s ... employees ended when they allegedly became agents of the defendant
[although still employed by the plaintiff] ... [T]hey lost their authorization and were without authorization when they
allegedly obtained and sent the proprietary information to the defendant via email”); Ass’n of Machinists and
Aerospace Workers v. Werner, 390 F.Supp.2d 479, 496 (D.Md. 2005)(“Because section 2701 prohibits only
unauthorized access and not the misappropriation or disclosure of information, there is no violation of section 2701 for
a person with authorized access to the database no matter how malicious or larcenous his intended use of that access”).
195
KLA-Tencor Corp. v. Murphy, 717 F.Supp.2d 895, 905-906 (N.D.Cal. 2010)(“Finally, plaintiff has not established
that Chen’s conduct [of deleting her e-mails in her employer’s system] was unauthorized. Plaintiff asserts that Chen
was ‘without authorization or exceeded authorization to access these e-mails on KT’s e-mail server in [her] last days at
KT because [she] did not have any legitimate business reasons for doing so and [is] prohibited, as a condition of their
employment, from unauthorized use of KT information.’ However, this claim is not supported by the evidence. As an
initial matter, it appears that employees were generally authorized to use their own e-mail account.... The employment
(continued...)
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The “facility through which an electronic communication service is provided” need not be one
made available to the public; but includes as well facilities through which a private employer
provides electronic communication services to his employees.197
The section only protects communications while “in electronic storage” in a facility through
which electronic communications service is provided. “Electronic storage” is defined to
encompass temporary, intermediate storage incidental to transmission as well as backup
storage.198 The definition is not always easily applied.199
(...continued)
agreements cited by plaintiff in its motion only restrict use of confidential information, and plaintiff has provided no
evidence that the contents of the deleted e-mails were confidential or that deleting e-mails would constitute ‘use.’ In
addition, Chen states that there was no company policy prohibiting her from deleting her own e-mail”).
In a case under the Computer Fraud and Abuse Act, that might as easily have been brought under the SCA, however,
the court held that “if any conscious breach of a website’s terms of service is held to be sufficient by itself to constitute
intentionally accessing a computer without authorization or in excess of authorization, the result will be that section
1030(a)(2)(C) becomes a law ‘that affords too much discretion to the police and too little notice to citizens who wish to
use the [Internet]’ [and consequently is unconstitutionally vague],” United States v. Drew, 259 F.R.D. 449, 467
(C.D.Cal. 2009).
196
Cardinal Health 414, Inc. v. Adams, 582 F.Supp. 967, 977 (M.D. Tenn. 2008)(“Adams used the log-in information
for another person, a former co-worker, to spy on the activities of his former company. On these facts, to argue that
continued access was ‘authorized’ is absurd”); see also, State Analysis, Inc. v. American Financial Services Assoc., 621
F.Supp.2d 309, 318 (E.D.Va. 2009).
197
Devine v. Kapasi, 729 F.Supp.2d 1024, 1027-28 (N.D.Ill. 2010), citing, Fraser v. Nationwide Mutual Ins. Co, 352
F.3d 107, 115 (3d Cir. 2003); In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1057 (N.D.Cal. 2012)(“To state
a claim under the SCA, Plaintiffs must allege that Defendants accessed without authorization ‘a facility through which
an electronic communication service is provided.’ 18 U.S.C. 2701(a)(1). An ‘electronic communication service’
(‘ECS’) is ‘any service which provides to users thereof the ability to send and receive wire or electronic
communications.’ 18 U.S.C. 2510(15). While the computer systems of an e-mail provider, a bulletin board system, or
an ISP are uncontroversial examples of facilities that provide electronic communications services to multiple users, less
consensus surrounds the question presented here: whether an individual’s computer, laptop, or mobile device fits the
statutory definition of a ‘facility through which an electronic communication service is provided.’ The Court agrees
with Defendants that it does not”).
198
18 U.S.C. 2711(1)(“As used in this chapter [18 U.S.C. 2701-2712]—(1) the terms defined in section 2510 of this
title have, respectively, the definitions given such terms in that section”); 18 U.S.C. 2510(17)(“‘electronic storage’
means—(A) any temporary, intermediate storage of a wire or electronic communication 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”).
199
See e.g., KLA-Tencor Corp. v. Murphy, 717 F.Supp.2d 895, 904-905 (N.D.Cal. 2010)(“As an initial matter, it is not
clear to the court that e-mails on KT’s server were in ‘electronic storage’ within the meaning of the SCA. In Theofel v.
Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004), the Ninth Circuit held that messages remaining on an ISP’s server
after delivery could fall within the SCA. The court found that ‘[a]n obvious purpose for storing a message on an ISP’s
server after delivery is to provide a second copy of the message in the event that the user needs to download it again-if,
for example, the message is accidentally erased from the user’s own computer.’ Id. However, ‘the mere fact that a copy
could serve as a backup does not mean it is stored for that purpose’ Id. at 1076. The court noted that there would be
instances where an ISP could hold messages not in electronic storage, such as ‘messages a user has flagged for deletion
from the server.’ Id. In an apparent attempt to mirror Theofel language, plaintiff suggests that its server’s storage of email has a backup purpose because a user could ‘download them again when, for instance, his or her e-mails are
accidentally deleted from the computer while working in an offline mode.’ Gurule SJ Decl. ¶ 7. However, plaintiff also
explains that the server’s software ‘is configured to synchronize a user’s e-mail account so that the account contains the
same set of e-mails regardless of where it is accessed.’ Id. ¶ 10. It seems to the court that these two purposes cannot
coexist. Either the server is linked to the computer and flags for deletion a message that is deleted on the computer, or it
acts as a backup and would not automatically delete messages that are deleted on a computer. Under either theory,
plaintiff’s SCA claim fails. Even if the system’s operation is as plaintiff describes, the fact that automatic deletion does
not occur in the specific situation of a message being deleted while the computer is offline does not establish that the
server stores e-mails for the purposes of backup protection rather than only for purpose of synchronization”).
(continued...)
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Section 2701’s prohibitions yield to several exceptions and defenses. First, the section itself
declares that:
Subsection (a) of this section does not apply with respect to conduct authorized—
(1) by the person or entity providing a wire or electronic communications service;
(2) by a user of that service with respect to a communication of or intended for that user; or
(3) in section 2703 [requirements for government access],
2704 [backup preservation] or
2518 [court ordered wiretapping or electronic eavesdropping] of this title.
200
Second, there are the good faith defenses provided by section 2707:
A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory
authorization (including a request of a governmental entity under section 2703(f) of this title)
[relating to an official request for a service provider preserve evidence];
(2) a request of an investigative or law enforcement officer under section 2518(7) of this title
[relating to emergency wiretapping and electronic eavesdropping]; or
(3) a good faith determination that section 2511(3) of this title [relating to the circumstances under
which an electronic communications provider may divulge the contents of communication]201
permitted the conduct complained of
(...continued)
In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1059 (N.D.Cal. 2012) (“The Court finds persuasive the
reasoning in In re Doubleclick, Inc. Privacy Litigation, 154 F.Supp.2d 497 (S.D.N.Y. 2001). There, the court dismissed
an SCA claim upon finding that the identification numbers for browser cookies the defendants installed on the
plaintiffs’ computers were not in ‘electronic storage’ because they resided on the plaintiff’s hard drives and thus were
not in temporary electronic storage, as is required by the Act. In In re DoubleClick, the district court, after considering
the plain language of the statute, concluded that ‘[the SCA] only protects electronic communications stored for a
limited time in the middle of a transmission, i.e. when an electronic communication service temporarily stores a
communication while waiting to deliver it.’ 154 F.Supp.2d at 512 (quoting dictionary definitions of ‘temporary’ and
‘intermediate’). The district court concluded that ‘[t]he cookies’ long-term residence on plaintiffs’ hard drives places
them outside of §2510(17)’s definition of ‘electronic storage’ and, hence, Title II [of the ECPA's] protection.’ Id. at
511”).
200
18 U.S.C. 2701(c). Here, the word “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,” 18 U.S.C. 2510(13), 2711(1);
Webapps v. Accelerize New Media, Inc., 847 F.Supp. 912, 917 (E.D.La. 2012).
201
“(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic
communication service to the public shall not intentionally 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—(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,” 18 U.S.C. 2511(3).
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is a complete defense to any civil or criminal action brought under this chapter or any other law. 18
U.S.C. 2707(e).
Third, there is the general immunity from civil liability afforded providers under subsection
2703(e):
[N]o cause of action shall lie in any court against any provider of wire or electronic communication
service, its officers, employees, agents, or other specified persons for providing information, facilities,
or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization,
or certification under this chapter.
A second set of prohibitions appears in section 2702 and supplements those in section 2701.
Section 2702 bans the disclosure of the content of electronic communications and records relating
to them by those who provide the public with electronic communication service or remote
computing service. The section forbids providers to disclose the content of certain
communications to anyone202 or to disclose related records to governmental entities.203
Public electronic communication service (ECS) providers to the public must keep confidential the
content of any “communication while in electronic storage by that service.”204 Public remote
computer service (RCS) providers must keep confidential the content of “any communication
which is carried or maintained on that service—(A) on behalf of, and received by means of
electronic transmission from (or created by means of computer processing of communications
received by means of electronic transmission from), a subscriber or customer of such service; (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.”205
Both sets of providers must keep confidential any “record or other information pertaining to a
subscriber to or customer of such service (not including the contents of communications covered
by paragraph (1) or (2)) to any government entity.”206
Section 2702 comes with its own set of exceptions which permit disclosure of the contents of a
communication:
(1) to an addressee or intended recipient of such communication or an agent of such addressee or
intended recipient;
(2) as otherwise authorized in section 2517 [relating to disclosures permitted under Title III],
2511(2)(a)[relating to provider disclosures permitted under Title III for protection of provider property
or incidental to service], or 2703 [relating to required provider disclosures pursuant to governmental
authority] 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;
202
18 U.S.C. 2702(a)(1), (2).
18 U.S.C. 2702(a)(3).
204
18 U.S.C. 2702(a)(1).
205
18 U.S.C. 2702(a)(2).
206
18 U.S.C. 2702(a)(3).
203
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(4) to a person employed or authorized or whose facilities are used to forward such communication to
its destination;
(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or
property of the provider of that service;
(6) to the National Center for Missing and Exploited Children, in connection with a report submitted
thereto under section 227 of the Victims of Child Abuse Act of 1990;
(7) to a law enforcement agency—(A) if the contents—(i) were inadvertently obtained by the service
provider; and (ii) appear to pertain to the commission of a crime;
(8) to a Federal, State, or local government entity, if the provider, in good faith, believes that an
emergency involving danger of death or serious physical injury to any person requires disclosure
without delay of communications relating to the emergency.207
The record disclosure exceptions are similar.208
The Ninth Circuit in Quon noted that the exception in paragraph 2702(b)(3)(disclosure “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) permits RCS providers to disclose the
contents of otherwise protected communications does not afford ECS providers the same
exception.209 Thus, the service provider violated the SCA when it supplied the Ontario Police
Department (the subscriber) with the text of Sergeant Quon’s pager messages.210
SCA: Government Access
The circumstances and procedural requirements for law enforcement access to stored wire or
electronic communications and transactional records are less demanding than those under Title
III.211 They deal with two kinds of information—often in the custody of the communications
service provider rather than of any of the parties to the communication—communications records
and the content of electronic or wire communications. The Stored Communications Act provides
two primary avenues for law enforcement access: permissible provider disclosure (section 2702)
and required provided access (section 2703).212 As noted earlier in the general discussion of
207
18 U.S.C. 2702(b)(emphasis added).
“A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or
customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))—(1) as
otherwise authorized in section 2703; (2) with the lawful consent of the customer or subscriber; (3) 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; (4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of
death or serious physical injury to any person requires disclosure without delay of information relating to the
emergency; (5) to the National Center for Missing and Exploited Children, in connection with a report submitted
thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032); or (6) to any person other than
a governmental entity,” 18 U.S.C. 2702(c).
209
Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900-903 (9th Cir. 2008), rev’d on other grounds sub nom.,
City of Ontario v. Quon, 130 S.Ct. 2619 (2010).
210
Id. (ECS provider that supplied the city police department with pager service for some of its officers violated section
2702 when it provided the department with the content of the officers’ pager messages).
211
18 U.S.C. 2701-2712.
212
The SCA also authorizes the issuance of national security letters for foreign intelligence gathering rather than law
enforcement purposes, 18 U.S.C. 2709, see generally, CRS Report RL33320, National Security Letters in Foreign
Intelligence Investigations: Legal Background and Recent Amendments, by Charles Doyle.
208
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section 2702, a public electronic communication service (ECS) provider or a public remote
computing service (RCS) provider may disclose the content of a customer’s communication
without the consent of a communicating party to a law enforcement agency in the case of
inadvertent discovery of information relating to commission of a crime,213 or to any government
entity in an emergency situation.214 ECS and RCS providers may also disclose communications
records to any governmental entity in an emergency situation.215 Federal, state, and local
agencies, regardless of the nature of their missions, all qualify as governmental entities for
purposes of section 2702.216
Section 2702 authorizes voluntary disclosure. Section 2703 speaks to the circumstances under
which ECS and RCS providers may be required to disclose communications content and related
records. Section 2703 distinguishes between recent communications and those that have been in
electronic storage for more than 180 days.217 The section insists that government entities resort to
a search warrant to compel providers to supply the content of wire or electronic communications
held in electronic storage for less than 180 days.218 It permits them to use a warrant, subpoena, or
a court order authorized in subsection 2703(d) to force content disclosure with respect to
communications held for more than 180 days.219
213
18 U.S.C. 2702(b)(“A provider described in subsection (a) may divulge the contents of a communication ... (7) to a
law enforcement agency—(A) if the contents—(i) were inadvertently obtained by the service provider; and (ii) appear
to pertain to the commission of a crime”).
214
18 U.S.C. 2702(b)(“A provider described in subsection (a) may divulge the contents of a communication ... (8) to a
governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious
physical injury to any person requires disclosure without delay of communications relating to the emergency”).
215
18 U.S.C. 2702(c)(“A provider described in subsection (a) may divulge the contents of a communication ... (4) to a
governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious
physical injury to any person requires disclosure without delay of information relating to the emergency”).
216
18 U.S.C. 2711(“As used in this chapter ... (4) the term ‘governmental entity’ means a department or agency of the
United States or State or political subdivision thereof”); but see, United States v. Amawi, 552 F.Supp.2d 679, 680
(N.D.Ohio 2008)(the Office of the Federal Public Defender is not a “governmental entity”).
217
Recall that “‘electronic storage’ means—(A) any temporary, intermediate storage of a wire or electronic
communication 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,” 18 U.S.C. 2510(17).
218
18 U.S.C. 2703(a). At least one court has held that opened web-based e-mail stored on a service provider’s server is
no longer is “electronic storage,” because the service provider storage is not necessary for backup purposes once the email has been opened (i.e., after storage is not only incidental to transmission). The original remains on the web server
and the service provider is simply supplying remote storage. Consequently, a governmental entity may secure access
using a subpoena, United States v. Weaver, 636 F.Supp.2d 769, 770-72 (C.D.Ill. 2009)(distinguishing and finding
unpersuasive Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), thought to support a contrary view).
219
18 U.S.C. 2703(a)(“ ... A governmental entity may require the disclosure by a provider of electronic
communications services of the contents of a wire or electronic communication that has been in electronic storage in an
electronic communications system for more than one hundred and eighty days by the means available under subsection
(b) of this section”).
18 U.S.C. 2703(b)(“(1) A governmental entity may require a provider of remote computing service to disclose the
contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this
subsection—(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant
issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the
offense under investigation or equivalent State warrant; or (B) with prior notice from the governmental entity to the
subscriber or customer if the governmental entity—(i) uses an administrative subpoena authorized by a Federal or State
statute or a Federal or State grand jury or trial 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”).
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A subsection 2703(d) court order may be issued by a federal magistrate or by a judge qualified to
issue an order under Title III.220 It need not be issued in the district in which the provider is
located.221
The person whose communication is disclosed is entitled to notice, unless the court authorizes
delayed notification because contemporaneous notice might have an adverse impact.222
Government supervisory officials may certify the need for delayed notification in the case of a
subpoena.223 Traditional exigent circumstances and a final general inconvenience justification
form the grounds for delayed notification in either case:
•
endangering the life or physical safety of an individual;
•
flight from prosecution;
•
destruction of or tampering with evidence;
•
intimidation of potential witnesses; or
•
otherwise seriously jeopardizing an investigation or unduly delaying a trial.224
Subsection 2703(d) authorizes issuance of an order when the governmental entity has presented
specific and articulable facts sufficient to establish reasonable grounds to believe that the contents
are relevant and material to an ongoing criminal investigation.225 Some courts have held that this
“reasonable grounds” standard is a Terry standard, a less demanding standard than “probable
cause,” and that under some circumstances this standard may be constitutionally insufficient to
justify government access to provider held email.226 A Sixth Circuit panel has held that the Fourth
220
Compare, 18 U.S.C. 2703(d)(“A court order for disclosure under subsection (b) or (c) may be issued by any court
that is a court of competent jurisdiction....”); 18 U.S.C. 2711(3)(“As used in this chapter ... (3) the term ‘court of
competent jurisdiction’ has the meaning assigned by section 3127, and includes any Federal court within that
definition, without geographic limitation”); 18 U.S.C. 3127(2)(emphasis added) (“As used in this chapter ... (2) the
term “court of competent jurisdiction” means—(A) any district court of the United States (including a magistrate of
such a court) or a United States Court of Appeals having jurisdiction over the offense being investigated ...”), with, 18
U.S.C. 2516(3)(“Any attorney for the Government ... may authorize an application to a Federal judge of competent
jurisdiction for, and such judge may grant ... an order authorizing or approving the interception of electronic
communications ...”); 18 U.S.C. 2510(9)(“ As used in this chapter ... ‘Judge of competent jurisdiction’ means—(a) a
judge of a United States district court or a United States court of appeals”).
221
United States v. Berkos, 543 F.3d 392, 397 (7th Cir. 2008), quoting 18 U.S.C. 2703(a), (“[W]hen ‘a court with
jurisdiction over the offense’ issues an out-of-district warrant for the seizure of electronic communications, it must do
so ‘using the procedures described in the Federal Rules of Criminal Procedure’”); see also, 18 U.S.C. 2711(3)(above).
222
18 U.S.C. 2705(a)(1)(A), (4).
223
18 U.S.C. 2705(a)(1)(B), (4).
224
18 U.S.C. 2705(a)(2), (b).
225
18 U.S.C. 2703(d)(“A court order for disclosure under subsection (b) or (c) may be issued by any court that is a
court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts
showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the
records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a
State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing
an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order,
if the information or records requested are unusually voluminous in nature or compliance with such order otherwise
would cause an undue burden on such provider”).
226
United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)(internal quotation marks and citations omitted)
(“Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are
stored with, or sent or received through, a commercial ISP. The government may not compel a commercial ISP to turn
(continued...)
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Amendment precludes government access to the content of stored communications (email) held
by service providers in the absence of a warrant, subscriber consent, or some other indication that
the subscriber has waived his or her expectation of privacy.227 Where the government instead
secures access through a subpoena or court order as section 2703 permits, the evidence may be
subject to both the Fourth Amendment exclusionary rule and the exceptions to the rule.228
The SCA has two provisions which require providers to save customer communications at the
government’s request. One is found in subsection 2703(f). It requires ECS and RCS providers to
preserve “records and other evidence in its possession,” at the request of a governmental entity
pending receipt of a warrant, court order, or subpoena.229 Whether providers are bound to
preserve emails and other communications that come into their possession both before and after
receipt of the request is unclear.230
The second preservation provision is more detailed. It permits a governmental entity to insist that
providers preserve backup copies of the communications covered by a subpoena or subsection
2703(d) court order. It gives subscribers the right to challenge the relevancy of the information
sought.231 It might also be read to require the preservation of the content of communications
(...continued)
over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because
they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents
of Warshak’s emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails
warrantlessly, the SCA is unconstitutional”); see also, In re Application of the United States, 620 F.3d 304, 313 (3d Cir.
2010)(“We also conclude that this [§2703(d)] standard is a lesser one than probable cause”).
227
United States v. Warshak, 631 F.3d at 283-88.
228
Id. at 288-92 (exception for good faith reliance on the SCA); see also, United States v. Ferguson, 508 F.Supp.2d 7,
8-10 D.D.C. 2007)(even if a Fourth Amendment violation occurred, officers could rely in good faith on the
magistrate’s order issued before any court had raised the specter of constitutional suspicion which surfaced later in
Warshak).
229
18 U.S.C. 2703(f)(1)(“A provider of wire or electronic communication services or a remote computing service, upon
the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its
possession pending the issuance of a court order or other process”).
230
United States v. Warshak, 631 F.3d 266, 283, 290 n.21 (6th Cir. 2010)(internal citations omitted)(“Warshak had a
number of email accounts with various ISPs, including an account with NuVox Communications. In October 2004, the
government formally requested that NuVox prospectively preserve the contents of any emails to or from Warshak’s
email account. The request was made pursuant to 18 U.S.C. §2703(f) and it instructed NuVox to preserve all future
messages. NuVox acceded to the government’s request and began preserving copies of Warshak’s incoming and
outgoing emails—copies that would not have existed absent the prospective preservation request. Per the government’s
instructions, Warshak was not informed that his messages were being archived. In January 2005, the government
obtained a subpoena under §2703(d) and compelled NuVox to turn over the emails that it had begun preserving the
previous year. In May 2005, the government served NuVox with an ex parte court order under §2703(d) that required
NuVox to surrender any additional email messages in Warshak’s account. In all, the government compelled NuVox to
reveal the contents of approximately 27,000 emails. Warshak did not receive notice of either the subpoena or the order
until May 2006.... Some courts and commentators have suggested that §2703(f) applies only retroactively. However,
the language of the statute, on its face, does not compel this reading”).
231
18 U.S.C. 2704(b)(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”).
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received by the provider both before and after receipt of the order, but the requirement that copies
be made within two days of receipt of the order seems to preclude such an interpretation.232
Section 2703 provides greater protection to communication content than to provider records
relating to those communications. Under subsection 2703(c), a governmental entity may require a
ECS or RCS provider to disclose records or information pertaining to a customer or subscriber—
other than the content of a communication—under a warrant, a court order under subsection
2703(d), or with the consent of the subject of the information.233 An administrative, grand jury or
trial subpoena is sufficient, however, for a limited range of customer or subscriber related
information.234 The customer or subscriber need not be notified of the record disclosure in either
case.235
The district courts have been divided for some time over the question of what standard applies
when the government seeks cell phone location information from a provider, either current or
historical.236 The Third Circuit has held that while issuance of an order under subsection 2703(d)
does not require a showing of probable cause as a general rule, the circumstances of a given case
may require it.237
In United States v. Jones,238 five members of the Supreme Court seemed to suggest that a driver
has a reasonable expectation that authorities must comply with the demands of the Fourth
Amendment before acquiring access to information that discloses the travel patterns of his car
over an extended period of time. There, the Court unanimously agreed that the agents’ attachment
of a tracking device to Jones’ car and long-term capture of the resulting information constituted a
Fourth Amendment search.239 For four Justices, placement of the device constituted a physical
232
18 U.S.C. 2704(a)(1), (2)(emphasis added)(“A governmental entity acting under section 2703(b)(2) may include in
its subpoena or court order a requirement that the service provider to whom the request is directed create a backup copy
of the contents of the electronic communications sought in order to preserve those communications. Without notifying
the subscriber or customer of such subpoena or court order, such service provider shall create such backup copy as soon
as practicable consistent with its regular business practices and shall confirm to the governmental entity that such
backup copy has been made. Such backup copy shall be created within two business days after receipt by the service
provider of the subpoena or court order. (2) Notice to the subscriber or customer shall be made by the governmental
entity within three days after receipt of such confirmation, unless such notice is delayed pursuant to section 2705(a)”).
233
18 U.S.C. 2703(c)(1).
234
18 U.S.C. 2703(c)(2)(“A provider of electronic communication service or remote computing service shall disclose
to a governmental entity the (A) name; (B) address; (C) local and long distance telephone connection records, or
records of session times and durations; (D) length of service (including start date) and types of service utilized; (E)
telephone or instrument number or other subscriber number or identity, including any temporarily assigned network
address; and (F) means and source of payment (including any credit car or bank account number), of a subscriber to or
customer of such service, when the governmental entity uses an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1)”); United
States v. Cray, 673 F.Supp.2d 1368, 1378-379 (S.D.Ga. 2009).
235
18 U.S.C. 2703(c)(3); In re Application of the United States, 830 F.Supp.2d 114, 127-28 (E.D.Va. 2011).
236
See, In re Application of the United States, 733 F.Supp.2d 939, 940 n.1 (N.D.Ill. 2009)(listed cases decided up to
that point).
237
In re Application of the United States, 620 F.3d 304, 313-19 (3d Cir. 2010); see also, In re Application of the United
States, 747 F.Supp.2d 827, 838-40 (S.D.Tex. 2010)(access to provider records relating to cell phone location over the
course of an earlier two month period requires a warrant); In re Application of the United States, 727 F.Supp.2d 571,
583-84 (W.D.Tex. 2010)(access to provider records relating to cell phone location either historically or prospectively
should be only be available under a warrant, at least until a circuit court rules otherwise).
238
United States v. Jones, 132 S.Ct. 945 (2012).
239
Id. at 949; id. at 957 (Alito, J., with Ginsburg, Breyer, and Kagan)(concurring in the judgment).
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intrusion upon a constitutionally protected area.240 For four others, long-term tracking constituted
a breach of Jones’ reasonable expectation of privacy.241 For the ninth Justice, the activity
constituted a Fourth Amendment search under either rationale.242 It remains to be seen whether
the Supreme Court’s decision in Jones will contribute to resolution of the issue.243
SCA: Consequences
Breaches of the unauthorized access prohibitions of section 2701 expose offenders to possible
criminal, civil, and administrative sanctions. Violations committed for malicious, mercenary,
tortious or criminal purposes are punishable by imprisonment for not more than five years (not
more than 10 years for a subsequent conviction) and/or a fine of not more than $250,000 (not
more than $500,000 for organizations); lesser transgressions, by imprisonment for not more than
one year (not more than five years for a subsequent conviction) and/or a fine of not more than
$100,000.244 Victims of a violation of subsection 2701(a) have a cause of action for equitable
relief, reasonable attorneys’ fees and costs, and damages equal to the amount of any offender
profits added to the total of the victim’s losses (but not less than $1,000 in any event).245
Violations by the United States may give rise to a cause of action and may result in disciplinary
action against offending officials or employees under the same provisions that apply to U.S.
240
United States v. Jones, 132 S.Ct. at 949.
Id. at 964 (Alito, J., with Ginsburg, Breyer, and Kagan)(concurring in the judgment)(“[T]he longer term GPS
monitoring in investigations of most offenses impinges on expectations of piracy”).
242
Id. at 945-55 (Sotomayor, J.)(concurring).
243
See, United States v. Skinner, ___ F.3d ___, ___ (6th Cir. August 14, 2012)(“Justice Alito’s concurrence and the
majority in Jones both recognize that there is little precedent for what constitutes a level of comprehensive tracking that
would violate the Fourth Amendment. Skinner’s case, however, comes nowhere near that line”); In re Application of
the United States, 849 F.Supp.2d 177, 179 (D.Mass. 2012)(declining to undo district precedent concerning the
collection of “cumulative historical cell site location records ... [u]ntil either the First Circuit Court of Appeals or the
Supreme Court rule otherwise, or Congress enacts legislation dealing with the problem”).
244
“The punishment for an offense under subsection (a) of this section is—(1) if the offense is committed for purposes
of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any
criminal or tortious act in violation of the constitution and laws of the United States or any state—(A) a fine under this
title or imprisonment for not more than 5 years, 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 10 years, or both, for any subsequent offense under this
subparagraph; and (2)(A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first
offense under this paragraph; and (B) a fine under this title or imprisonment for not more than 5 years, or both, in the
case of an offense under this subparagraph that occurs after a conviction of another offense under this section,” 18
U.S.C. 2701(b).
245
“(a) Cause of action—Except as provided in section 2703(e)[relating to immunity for compliance with judicial
process], 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 other than the United States which engaged in that violation such
relief as may be appropriate.
“(b) Relief—In a civil action under this section, appropriate relief includes—(1) such preliminary and other equitable
or declaratory relief as may be appropriate; (2) damages under subsection(c); and (3) a reasonable attorney’s fee and
other litigation costs reasonably incurred;
“(c) Damages—The court may assess as damages in a civil action under this section the sum of the actual damages
suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person
entitled to recover receive less than the sum of $1,000....” 18 U.S.C. 2707.
To be eligible for statutory damages, a plaintiff must show actual damage, but attorneys’ fees and punitive damages
may be award without proof of actual damages, VanAlystyne v. Electronic Scriptorium, Ltd., 560 F.3d 199, 202 (4th Cir.
2009).
241
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violations of Title III,246 Unlike violations of Title III, however, there is no statutory prohibition
on disclosure or use of the information through a violation of section 2701;247 nor is there a
statutory rule for the exclusion of evidence as a consequence of a violation.248 Yet, violations of
SCA, which also constitute violations of the Fourth Amendment, will trigger both the Fourth
Amendment exclusionary rule and the exceptions to that rule.249
No criminal penalties attend a violation of voluntary provider disclosure prohibitions of section
2702. Yet, ECS and RCS providers—unable to claim the benefit of one of the section’s
exceptions, of the good faith defense under subsection 2707(e), or of the immunity available
under subsection 2703(e)—may be liable for civil damages, costs and attorneys’ fees under
section 2707 for any violation of section 2702.250
Pen Registers and Trap and Trace Devices (PR/T&T)
PR/T&T: Prohibitions
A trap and trace device identifies the source of incoming calls, and a pen register indicates the
numbers called from a particular instrument.251 Since they did not allowed the user to overhear
the “contents” of the phone conversation or to otherwise capture the content of a communication,
they were not considered interceptions within the reach of Title III prior to the enactment of
ECPA.252 Although Congress elected to expand the definition of interception, it chose to regulate
these devices beyond the boundaries of Title III for most purposes.253 Nevertheless, the Title III
wiretap provisions apply when, due to the nature of advances in telecommunications technology,
pen registers and trap and trace devices are able to capture wire communication “content.”254
246
“Any person who is aggrieved by any willful violation this chapter or of chapter 119 of this title [18 U.S.C. 25102520] ... may commence an action in United States District Court.... If ... any of the departments or agencies has
violated any provision of this chapter ... the department or agency shall ... promptly initiate a proceeding to determine
whether disciplinary action ... is warranted....”18 U.S.C. 2712(a),(c).
247
Cardinal Health 414, Inc. v. Adams, 582 F.Supp.2d 967, 976 (M.D.Tenn. 2008).
248
United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir. 2008); United States v. Clenney, 631 F.3d 658, 667 (11th
Cir. 2011); United States v. Navas, 640 F.Supp.2d 256, 262 (S.D.N.Y. 2009), rev’d on other grounds, 597 F.3d 492 (2d
Cir. 2010).
249
See e.g., United States v. Warshak, 631 F.3d 266, 282-89 (6th Cir. 2010).
250
No liability under section 2707 accrues, however, as a consequence of aiding or abetting a provider’s violation of
section 2702, Freeman v. DirecTV, 457 F.3d 1001, 1009 (9th Cir. 2006).
251
“(3) [T]he term ‘pen register’ means a device which records or decodes electronic or other impulses which identify
the numbers dialed or otherwise transmitted on the telephone line to which such device is attached, but such term does
not include any device used by a provider or customer of a wire or electronic communication service for billing, or
recording as an incident to billing, for communications services provided by such provider or any device used by a
provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course
of its business; (4) the term ‘trap and trace device’ means a device which captures the incoming electronic or other
impulses which identify the originating number of an instrument or device from which a wire or electronic
communication was transmitted,” 18 U.S.C. 3127(3),(4). Although clone pagers are not considered pen registers,
Brown v. Waddell, 50 F.3d 285, 290-91 (4th Cir. 1995), “caller id” services have been found to constitute trap and trace
devices by some courts, United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995), but not others, Sparshott v. Feld
Entertainment, Inc., 311 F.3d 425, 432-33 (D.C.Cir. 2003).
252
United States v. New York Telephone Co., 434 U.S. 159 (1977).
253
18 U.S.C. 3121-3127.
254
“‘Post-cut-through dialed digits’ are any numbers dialed from a telephone after the call is initially setup or ‘cut(continued...)
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The USA PATRIOT Act enlarged the coverage of sections 3121-3127 to include sender/addressee
information relating to email and other forms of electronic communications.255
Subsection 3121(a) outlaws installation or use of a pen register or trap and trace device, except
under one of seven circumstances:
•
pursuant to a court order issued under sections 3121-3127;
•
pursuant to a Foreign Intelligence Surveillance Act (FISA) court order;256
•
with the consent of the user;
•
when incidental to service;
•
when necessary to protect users from abuse of service;
•
when necessary to protect providers from abuse of service;257 or
•
in an emergency situation.258
(...continued)
through.’ Sometimes these digits are other telephone numbers, as when a party places a credit card call by first dialing
the long distance carrier access number and then the phone number of the intended party. Sometimes these digits
transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like.
In the latter case, the digits represent communications content; in the former, they are non-content call processing
numbers,” In re United States, 441 F.Supp.2d 816, 818 (S.D. Tex. 2006); see also, In re United States for Orders (1)
Authorizing Use of Pen Registers and Trap and Trace Devices, 515 F.Supp.2d 325, 328-38 (E.D.N.Y. 2007); In re
United States, 622 F.Supp.2d 411, 419-22 (S.D. Tex. 2007); In re Application of the United States, 632 F.Supp.2d 202,
203-204 (E.D.N.Y. 2008)(granting a pen register/trap and trace application that would capture post-cut-through
numbers after the government assured the court that its computers would be configured to delete them upon receipt).
255
115 Stat. 288-91 (2001).
256
18 U.S.C. 3121 (“Except as provided in this section, no person may install or use a pen register or a trap and trace
device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)”).
257
18 U.S.C. 3121(b)(“The prohibition of subsection (a) does not apply with respect to the use of a pen register or a
trap and trace device by a provider of electronic or wire communication service—(1) relating to the operation,
maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of
such provider, or to the protection of users of that service from abuse of service or unlawful use of service; or (2) to
record the fact that a wire or electronic communication was initiated or completed in order to protect such provider,
another provider furnishing service toward the completion of the wire communication, or a user of that service, from
fraudulent, unlawful or abusive use of service; or (3) where the consent of the user of that service has been obtained”).
258
18 U.S.C. 3125(a)(“Notwithstanding any other provision of this chapter, any investigative or law enforcement
officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General,
any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General, or
by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who
reasonably determines that—(1) an emergency situation exists that involves—(A) immediate danger of death or serious
bodily injury to any person; (B) conspiratorial activities characteristic of organized crime; (C) an immediate threat to a
national security interest; or (D) an ongoing attack on a protected computer (as defined in section 1030) that constitutes
a crime punishable by a term of imprisonment greater than one year [—] that requires the installation and use of a pen
register or a trap and trace device before an order authorizing such installation and use can, with due diligence, be
obtained, and (2) there are grounds upon which an order could be entered under this chapter to authorize such
installation and use [—] may have installed and use a pen register or trap and trace device if, within forty-eight hours
after the installation has occurred, or begins to occur, an order approving the installation or use is issued in accordance
with section 3123 of this title”).
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PR/T&T: Government Access
Federal government attorneys and state and local police officers may apply for a court order
authorizing the installation and use of a pen register and/or a trap and trace device upon
certification that the information that it will provide is relevant to a pending criminal
investigation.259
An order authorizing installation and use of a pen register or trap and trace device must:
•
specify
•
the person (if known) upon whose telephone line the device is to be
installed,
•
the person (if known) who is the subject of the criminal investigation,
•
the telephone number, (if known) the location of the line to which the
device is to be attached, and geographical range of the device,
•
a description of the crime to which the investigation relates;
•
upon request, direct carrier assistance pursuant to section 3124;
•
terminate within 60 days, unless extended;
•
involve a report of particulars of the order’s execution in Internet cases; and
•
impose necessary nondisclosure requirements.260
The order may be issued by a judge of “competent jurisdiction” over the offense under
investigation, including a federal magistrate judge.261 Senior Justice Department or state
prosecutors may approve the installation and use of a pen register or trap and trace device
prior to the issuance of court authorization in emergency cases that involve either an
organized crime conspiracy, an immediate danger of death or serious injury, a threat to
national security, or a serious attack on a “protected computer.”262 Emergency use must
end within 48 hours, or sooner if an application for court approval is denied.263
Federal authorities have applied for court orders, under the Stored Communications Act (18
U.S.C. 2701-2712) and the trap and trace authority of 18 U.S.C. 3121-3127, seeking to direct
communications providers to supply them with the information necessary to track cell phone
users in conjunction with an ongoing criminal investigation. Thus far, their efforts have met with
mixed success.264
259
18 U.S.C. 3122.
18 U.S.C. 3123.
261
18 U.S.C. 3122(a), 3127(2); In re United States, 10 F.3d 931, 935-36 (2d Cir. 1993).
262
18 U.S.C. 3125(a).
263
18 U.S.C. 3121(b).
264
E.g., In re Application of the United States, 849 F.Supp.2d 526 (D.Md. 2011); In re Application of the United States,
733 F.Supp.2d 939 (N.D.Ill. 2009); In re Application of the United States, 534 F.Supp.2d 585 (W.D.Pa. 2008); In re
Application of the United States, 497 F.Supp.2d 301 (D. P.R. 2007); In re United States, 441 F.Supp.2d 816 (S.D. Tex.
2006); In re Application of the United States, 416 F.Supp. 390 (D.Md. 2006); In re Application of the United States,
415 F.Supp.2d 211 (W.D.N.Y. 2006); In re Application of the United States, 412 F.Supp.2d 947 (E.D.Wis. 2006); In re
Application of the United States, 407 F.Supp.2d 134 (D.D.C. 2006) (each denying the application); but see, In re
(continued...)
260
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PRT&T: Consequences
The use or installation of pen registers or trap and trace devices by anyone other than the
telephone company, service provider, or those acting under judicial authority is a federal crime,
punishable by imprisonment for not more than a year and/or a fine of not more than $100,000
($200,000 for an organization).265 Subsection 3124(e) creates a good faith defense for reliance
upon a court order under subsection 3123(b), an emergency request under subsection 3125(a), “a
legislative authorization, or a statutory authorization.”266 There is no accompanying exclusionary
rule, and consequently a violation of section 3121 will not serve as a basis to suppress any
resulting evidence.267
Moreover, unlike violations of Title III, there is no requirement that the target of an order be
notified upon the expiration of the order; nor is there a separate federal private cause of action for
victims of a pen register or trap and trace device violation.268 One court, in order to avoid First
Amendment concerns, has held that the statute precludes imposing permanent gag orders upon
providers.269 Nevertheless permitting providers to disclose the existence of an order to a target
does not require them to do so. Some of the states have established a separate criminal offense for
unlawful use of a pen register or trap and trace device,270 yet most of these seem to follow the
(...continued)
Application of the United States, 632 F.Supp.2d 202 (E.D.N.Y. 2008); In re Application of the United States, 509
F.Supp.2d 76 (D.Mass. 2007); In re Application of the United States, 460 F.Supp.2d 448 (S.D.N.Y. 2006); In re
Application of the United States, 433 F.Supp.2d 804 (S.D. Tex. 2006); In re Application of the United States, 411
F.Supp.2d 678 (W.D.La. 2006)(each granting the application).
265
18 U.S.C. 3121(d), 3571.
266
18 U.S.C. 3124(e).
267
United States v. Forrester, 512 F.3d 500, 512-13 (9th Cir. 2008); United States v. German, 486 F.3d 849, 852-53 (5th
Cir. 2007); United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995); United States v. Thompson, 936 F.2d 1249,
1249-250 (11th Cir. 1991). To the extent that the unlawful use captures content, the Fourth Amendment exclusionary
rule may apply, cf., In re United States for Orders (1) Authorizing Use of Pen Registers and Trap and Trace Devices,
515 F.Supp.2d 325, 328-38 (E.D.N.Y. 2007).
268
Subsection 3124(d) makes the denial of a cause of action explicit for service providers and others assisting in
execution of an order or emergency request. Subsection 3124(e) provides a good faith defense to civil liability on other
grounds.
269
In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F.Supp.2d 876, 879, 886-87 (S.D.Tex. 2008)
(“Section 3123(d)(2) provides that the ‘the person owning or leasing the line or other facility to which the pen register
or a trap and trace device is attached, or applied, or who is obligated by the order to provide assistance to the applicant’
shall be directed not to disclose to any other person the existence of the pen/trap or the investigation ‘unless or until
otherwise ordered by the court.’ Again, no particular showing by the government is required to justify non-disclosure,
and no minimum time period is imposed or even suggested. In fact, the ‘unless’ clause implies that the court may refuse
to enjoin disclosure even in the first instance. In the end, the duration of any gag order remains subject to the court’s
discretion.
***
An indefinite non-disclosure order is tantamount to a permanent injunction of prior restraint. To the extent such an
order enjoins speech beyond the life of the underlying investigation, it must be narrowly tailored to serve a compelling
governmental interest in order to pass muster under the First Amendment. The governmental interests considered
here—the integrity of an ongoing criminal investigation, the reputational interests of targets, and the sensitivity of
investigative techniques—are not sufficiently compelling to justify a permanent gag order. And because the statutes
authorizing these non-disclosure orders must be construed whenever possible in a manner that avoids constitutional
infirmity, it follows that neither 18 U.S.C. §2705(b) nor §3123 may be interpreted to permit a gag order of indefinite
duration”).
270
E.g., ARIZ. REV. STAT. ANN. §13-3005; FLA. STAT. ANN. §934.31; IOWA CODE ANN. §808B.10; N.H. RV. STAT. ANN.
§570-B:2; UTAH CODE ANN. §77-23-13.
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federal lead and have not established a separate private cause of action for unlawful installation or
use of the devices.271
Electronic Communications Privacy Act (Text).
Chapter 119 (“Title III”)
18 U.S.C. 2510. Definitions.
As used in this chapter—
(1 ) “wire communication” means 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 between the point
of origin and the point of reception (including the use of such connection in a switching station) furnished
or operated by any person engaged in providing or operating such facilities for the transmission of
interstate or foreign communications or communications affecting interstate or foreign commerce;
(2) “oral communication” means any oral communication uttered by a person exhibiting an expectation
that such communication is not subject to interception under circumstances justifying such expectation, but
such term does not include any electronic communication;
(3) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto
Rico, and any territory or possession of the United States;
(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, oral, or electronic communication other than—
(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i)
furnished to the subscriber or user by a provider of wire or electronic communication service in the
ordinary course of its business and being used by the subscriber or user in the ordinary course of its
business or furnished by such subscriber or user for connection to the facilities of such service and
used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic
communication service in the ordinary course of its business, or by an investigative or law enforcement
officer in the ordinary course of his duties;
(b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal;
(6) “person” means any employee, or agent of the United States or any State or political subdivision
thereof, and any individual, partnership, association, joint stock company, trust, or corporation;
(7) “Investigative or law enforcement officer” means any officer of the United States or of a State or
political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for
offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the
prosecution of such offenses;
(8) “contents,” when used with respect to any wire, oral, or electronic communication, includes any
information concerning the substance, purport, or meaning of that communication;
(9) “Judge of competent jurisdiction” 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, oral, or electronic communications;
(10) “communication common carrier” has the meaning given the term in section 3 of the Communications
Act of 1934;
271
But see, MINN. STAT. ANN. §626A.391. Appendix E contains the citations of state statutes that authorized court
ordered installation and use of pen registers and trap and trace devices. Appendix C lists the citations of state statutes
that create a separate cause of action for unlawful interception.
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(11) “aggrieved person” means a person who was a party to any intercepted wire, oral, or electronic
communication or a person against whom the interception was directed;
(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) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device (as defined in section 3117 of this title); or
(D) electronic funds transfer information stored by a financial institution in a communications system used
for the electronic storage and transfer of funds;
(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, electromagnetic, photooptical or
photoelectronic facilities for the transmission of wire or 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 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 electronic communication 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;
(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.
(19) “foreign intelligence information”, for purposes of section 2517(6) of this title, means—
(A) information, whether or not concerning a United States person, that relates to the ability of the
United States to protect against—
(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign
power;
(ii) sabotage or intentional terrorism by a foreign power or an agent of a foreign power; or
(iii) clandestine intelligence activities by and intelligence service or network of a foreign power or
by an agent of a foreign power; or
(B) information, whether or not concerning a United States person, with respect to a foreign power or
foreign territory that relates to—
(i) the national defense or the security of the United States; or
(ii) the conduct of the foreign affairs of the United States.
(20) “protected computer” has the meaning set forth in section 1030; and
(21) “computer trespasser”—
(A) means a person who accesses a protected computer without authorization and thus has no
reasonable expectation of privacy in any communication transmitted to, through, or from the protected
computer; and
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(B) does not include a person known by the owner or operator of the protected computer to have an
existing contractual relationship with the owner or operator of the protected computer for access to all
or part of the protected computer.
18 U.S.C. 2511. Interception and disclosure of wire, oral, or electronic
communications prohibited.
(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to
intercept, any wire, oral, or electronic communication;
(b) intentionally 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 premises of any business or other commercial
establishment the operations of which affect interstate or foreign 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 Commonwealth of Puerto Rico, or any territory or
possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or
electronic communication, knowing or having reason to know that the information was obtained through
the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained through the interception of a wire,
oral, or electronic communication in violation of this subsection; or
(e) (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral,
or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c),
2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing or having reason to know that the information was
obtained through the interception of such a communication in connection with a criminal investigation, (iii)
having obtained or received the information in connection with a criminal investigation, and (iv) with intent
to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
(2)(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer,
employee, or agent of a provider of wire or electronic communication service, whose facilities are used in
the transmission of a wire or electronic communication, to intercept, disclose, or use that communication 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 provider of that service, 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 control checks.
(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers,
employees, and agents, landlords, custodians, or other persons, are authorized to provide information,
facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic
communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other
specified person, has been provided with—
[P.L. 110-261, Sec. 101(c)(1)] (A) a court order directing such assistance or a court order pursuant to
section 704 of the Foreign Intelligence Surveillance Act of 1978 signed by the authorizing judge,
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[P.L. 110-261, Sec. 403(b)(2)(C)] Effective December 31, 2012 ... (C) except as provided in section
404, section 2511(2)(A)(ii)(A) of title 18, United States Code, is amended by striking “or a court order
pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978.”
[P.L. 110-261, Sec. 404(b)(3)] Challenge of directives; protection from liability; use of information—
Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) ... (E) section 2511(2)(a)(ii)(A) of title 18, United States Code, as amended by
section 101(c)(1), shall continue to apply to an order issued pursuant to section 704 of the Foreign
Intelligence Surveillance Act of 1978, as added by section 101(a)[50 U.S.C. 1881c]; or
(B) a certification in writing 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 specified assistance is required, setting forth the period of
time during which the provision of the information, facilities, or technical assistance is authorized and
specifying the information, facilities, or technical assistance required. No provider of wire or electronic
communication service, officer, employee, or agent thereof, 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 a court order or
certification under this chapter, 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 such disclosure, shall render such person
liable for the civil damages provided for in section 2520. No cause of action shall lie in any court
against any 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 a court order, statutory authorization, or certification under this chapter.
(iii) If a certification under subparagraph (ii)(B) for assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall identify the specific statutory provision and shall certify
that the statutory requirements have been met.
(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal
Communications Commission, in the normal course of his employment and in discharge of the monitoring
responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States
Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to
disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire,
oral, or electronic communication, where such person is a party to the communication 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,
oral, or electronic communication where such person is a party to the communication or where one of the
parties to the communication has given prior consent to such interception unless such communication is
intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or
laws of the United States or of any State.
(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of
1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of
his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, as authorized by that Act.
(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the
Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of
foreign intelligence information from international or foreign communications, or foreign intelligence
activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic
communications system, utilizing a means other than electronic surveillance as defined in section 101 of
the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 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, oral, and
electronic communications may be conducted.
(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 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 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, private land mobile, or public safety
communications system, including police and fire, readily accessible to the general public;
(III) by a station operating on an authorized frequency within the bands allocated 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 or consumer electronic equipment, 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 system
that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if
such communication is not scrambled or encrypted.
(h) It shall not be unlawful under this chapter—
(i) to use a pen register or a trap and trace device (as those terms are defined for the purposes of
chapter 206 (relating to pen registers and trap and trace devices) of this title); or
(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 protect 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.
(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or
electronic communications of a computer trespasser transmitted to, through, or from the protected
computer, if—
(I) the owner or operator of the protected computer authorizes the interception of the computer
trespasser’s communications on the protected computer;
(II) the person acting under color of law is lawfully engaged in an investigation;
(III) the person acting under color of law has reasonable grounds to believe that the contents of the
computer trespasser’s communications will be relevant to the investigation; and
(IV) such interception does not acquire communications other than those transmitted to or from the
computer trespasser.
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic
communication service to the public shall not intentionally 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—
(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.
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(4)(a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates
subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.
(b) 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—
(i) to a broadcasting station for purposes of retransmission to the general public; or
(ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including
data transmissions or telephone calls,
is not an offense under this subsection unless the conduct is for the purposes of direct or indirect
commercial advantage or private financial gain.
(c)[Redesignated (b)]
(5)(a)(i) If the communication is—
(A) a private satellite video communication that is not scrambled or encrypted and the conduct in
violation of this chapter is the private viewing of that communication and is not for a tortious or illegal
purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or
(B) a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of
the rules of the Federal Communications Commission that is not scrambled or encrypted and the
conduct in violation of this chapter is not for a tortious or illegal purpose or for purposes of direct or
indirect commercial advantage or private commercial gain,
then the person who engages in such conduct shall be subject to suit by the Federal Government in a
court of competent jurisdiction.
(ii) In an action under this subsection—
(A) if the violation of this chapter is a first offense for the person under paragraph (a) of subsection (4)
and such person has not been found liable in a civil action under section 2520 of this title, the Federal
Government shall be entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or subsequent offense under paragraph (a) of subsection
(4) or such person has been found liable in any prior civil action under section 2520, the person shall
be subject to a mandatory $500 civil fine.
(b) The court may use any means within its authority to enforce an injunction issued under paragraph
(ii)(A), and shall impose a civil fine of not less than $500 for each violation of such an injunction.
18 U.S.C. 2512. Manufacture, distribution, possession, and advertising of wire,
oral, or electronic communication intercepting devices prohibited.
(1) Except as otherwise specifically provided in this chapter, any person who intentionally—
(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, oral, or electronic
communications;
(b) manufactures, assembles, possesses, or sells 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, 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
(c) places in any newspaper, magazine, handbill, or other publication or disseminates by electronic means
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 surreptitious interception of wire, 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, oral, or electronic
communications,
knowing the content of the advertisement and 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 under this title or imprisoned not more than five years, or both.
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(2) It shall not be unlawful under this section for—
(a) a provider of wire or electronic communication service or an officer, agent, or employee of, or a person
under contract with, such a provider, in the normal course of the business of providing that wire or
electronic communication service, or
(b) an officer, agent, or employee of, or a person under contract 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 commerce, or manufacture, assemble,
possess, or sell 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,
oral, or electronic communications.
(3) It shall not be unlawful under this section to advertise for sale a device described in subsection (1) of
this section if the advertisement is mailed, sent, or carried in interstate or foreign commerce solely to a
domestic provider of wire or electronic communication service or to an agency of the United States, a State,
or a political subdivision thereof which is duly authorized to use such device.
18 U.S.C. 2513. Confiscation of wire, oral, or electronic communication
interception 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 customs laws contained in title
19 of the United States Code shall be performed with respect to seizure and forfeiture of electronic,
mechanical, or other intercepting devices under this section by such officers, agents, or other persons as
may be authorized or designated for that purpose by the Attorney General.
18 U.S.C. 2515. Prohibition of use as evidence of intercepted wire or oral
communications.
Whenever any wire or oral communication has been intercepted, no part of the contents of such
communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or
other proceeding in or before any court, grand jury, department, officer, agency, regulatory body,
legislative committee, or other authority of the United States, a State, or a political subdivision thereof if
the disclosure of that information would be in violation of this chapter.
18 U.S.C. 2516. Authorization for interception of wire, oral, 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 or
acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially
designated by the Attorney 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
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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 evidence of—
(a) any offense punishable by death or by imprisonment for more than one year under sections 2122 and
2274 through 2277 of title 42 of the United States Code (relating to the enforcement of the Atomic Energy
Act of 1954), section 2284 of title 42 of the United States Code (relating to sabotage of nuclear facilities or
fuel), or under the following chapters of this title: chapter 10 (relating to biological weapons) chapter 37
(relating to espionage), chapter 55 (relating to kidnapping), chapter 90 (relating to protection of trade
secrets), chapter 105 (relating to sabotage), chapter 115 (relating to treason), chapter 102 (relating to riots),
chapter 65 (relating to malicious mischief), chapter 111 (relating to destruction of vessels), or chapter 81
(relating to piracy);
(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 punishable under this title;
(c) any offense which is punishable under the following sections of this title: section 37 (relating to
violence at international airports), section 43 (relating to animal enterprise terrorism), section 81 (arson
within special maritime and territorial jurisdiction), section 201 (bribery of public officials and witnesses),
section 215 (relating to bribery of bank officials), section 224 (bribery in sporting contests), subsection (d),
(e), (f), (g), (h), or (i) of section 844 (unlawful use of explosives), section 1032 (relating to concealment of
assets), section 1084 (transmission of wagering information), section 751 (relating to escape), section 832
(relating to nuclear and weapons of mass destruction threats), section 842 (relating to explosive materials),
section 930 (relating to possession of weapons in Federal facilities), section 1014 (relating to loans and
credit applications generally; renewals and discounts), section 1114 (relating to officers and employees of
the United States), section 1116 (relating to protection of foreign officials), sections 1503, 1512, and 1513
(influencing or injuring an officer, juror, or witness generally), section 1510 (obstruction of criminal
investigations), section 1511 (obstruction of State or local law enforcement), section 1591 (sex trafficking
of children by force, fraud, or coercion), section 1751 (Presidential and Presidential staff assassination,
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), section 1958 (relating to
use of interstate commerce facilities in the commission of murder for hire), section 1959 (relating to violent
crimes in aid of racketeering activity), section 1954 (offer, acceptance, or solicitation to influence
operations of employee benefit plan), section 1955 (prohibition of business enterprises of gambling),
section 1956 (laundering of monetary instruments), section 1957 (relating to engaging in monetary
transactions in property derived from specified unlawful activity), section 659 (theft from interstate
shipment), section 664 (embezzlement from pension and welfare funds), section 1343 (fraud by wire, radio,
or television), section 1344 (relating to bank fraud), section 1992 (relating to terrorist attacks against mass
transportation), sections 2251 and 2252 (sexual exploitation of children), section 2251A (selling or buying
of children), section 2252A (relating to material constituting or containing child pornography), section
1466A (relating to child obscenity), section 2260 (production of sexually explicit depictions of a minor for
importation into the United States), sections 2421, 2422, 2423, and 2425 (relating to transportation for
illegal sexual activity and related crimes), sections 2312, 2313, 2314, and 2315 (interstate transportation of
stolen property), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts),
section 2340A (relating to torture), 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(b)(3) (relating to witness relocation and assistance), section 32 (relating to
destruction of aircraft or aircraft facilities), section 38 (relating to aircraft parts fraud), section 1963
(violations with respect to racketeer influenced and corrupt organizations), section 115 (relating to
threatening or retaliating against a Federal official), section 1341 (relating to mail fraud), a felony violation
of section 1030 (relating to computer fraud and abuse), section 351 (violations with respect to
congressional, Cabinet, or Supreme Court assassinations, kidnapping, and assault), section 831 (relating to
prohibited transactions involving nuclear materials), section 33 (relating to destruction of motor vehicles or
motor vehicle facilities), section 175 (relating to biological weapons), section 175c (relating to variola
virus), section 956 (conspiracy to harm persons or property overseas), section a felony violation of section
1028 (relating to production of false identification documentation), section 1425 (relating to the
procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of
naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship
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papers), section 1541 (relating to passport issuance without authority), section 1542 (relating to false
statements in passport applications), section 1543 (relating to forgery or false use of passports), section
1544 (relating to misuse of passports), or section 1546 (relating to fraud and misuse of visas, permits, and
other documents); section 555 (relating to construction or use of international border tunnels);
(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, selling, or otherwise dealing in narcotic drugs, marihuana, or other
dangerous drugs, punishable under any law of the United 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 section 5324 of title 31, United States Code (relating to structuring transactions to evade
reporting requirement prohibited);
(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) any felony violation of chapter 71 (relating to obscenity) of this title;
(j) any violation of section 60123(b) (relating to destruction of a natural gas pipeline), section 46502
(relating to aircraft piracy), the second sentence of section 46504 (relating to assault on a flight crew with
dangerous weapon), or section 46505(b)(3) or (c) (relating to explosive or incendiary devices, or
endangerment of human life, by means of weapons on aircraft) of title 49;
(k) any criminal violation of section 2778 of title 22 (relating to the Arms Export Control Act);
(l) the location of any fugitive from justice from an offense described in this section;
(m) a violation of section 274, 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1324, 1327,
or 1328) (relating to the smuggling of aliens);
(n) any felony violation of sections 922 and 924 of title 18, United States Code (relating to firearms);
(o) any violation of section 5861 of the Internal Revenue Code of 1986 (relating to firearms);
(p) a felony violation of section 1028 (relating to production of false identification documents), section
1542 (relating to false statements in passport applications), section 1546 (relating to fraud and misuse of
visas, permits, and other documents, section 1028A (relating to aggravated identity theft)) of this title or a
violation of section 274, 277, or 278 of the Immigration and Nationality Act (relating to the smuggling of
aliens); or
(q) any criminal violation of section 229 (relating to chemical weapons): or sections 2332, 2332a, 2332b,
2332d, 2332f, 2332g, 2332h 2339, 2339A, 2339B, 2339C, or 2339D of this title (relating to terrorism);
(r) any criminal violation of section 1 (relating to illegal restraints of trade or commerce), 2 (relating to
illegal monopolizing of trade or commerce), or 3 (relating to illegal restraints of trade or commerce in
territories or the District of Columbia) of the Sherman Act (15 U.S.C. 1, 2, 3); or
(s) any conspiracy to commit any offense described in any subparagraph of this paragraph.
(2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political
subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State
court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or
electronic communications, may apply to such judge for, and such judge may grant in conformity with
section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the
interception of wire, oral, or electronic communications by investigative or law enforcement officers
having responsibility for the investigation of the offense as to which the application is made, when such
interception may provide or has provided evidence of the commission of the offense of murder, kidnapping,
gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or
other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year,
designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of
the foregoing offenses.
(3) Any attorney for the Government (as such term is defined for the purposes of the Federal Rules of
Criminal Procedure) may authorize an application to a Federal judge of competent jurisdiction for, and
such judge may grant, in conformity with section 2518 of this title, an order authorizing or approving the
interception of electronic communications by an investigative or law enforcement officer having
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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.
18 U.S.C. 2517. Authorization for disclosure and use of intercepted wire, oral,
or electronic communications.
(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has
obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived
therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that
such disclosure is appropriate to the proper performance of the official duties of the officer making or
receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has
obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived
therefrom may use such contents to the extent such use is appropriate to the proper performance of his
official duties.
(3) Any person who has received, by any means authorized by this chapter, any information concerning a
wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the
provisions of this chapter may disclose the contents of that communication or such derivative evidence
while giving testimony under oath or affirmation in any proceeding held under the authority of the United
States or of any State or political subdivision thereof.
(4) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in
violation of, the provisions of this chapter shall lose its privileged character.
(5) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or
electronic communications in the manner authorized herein, intercepts wire, oral, or electronic
communications relating to offenses other than those specified in the order of authorization or approval, the
contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1)
and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3)
of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on
subsequent application that the contents were otherwise intercepted in accordance with the provisions of
this chapter. Such application shall be made as soon as practicable.
(6) Any investigative or law enforcement officer, or attorney for the Government, who by any means
authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic
communication, or evidence derived therefrom, may disclose such contents to any Federal law
enforcement, intelligence, protective, immigration, national defense, or national security official to the
extent that such contents include foreign intelligence or counterintelligence (as defined in section 3 of the
National Security act of 1947 (50 U.S.C. 401a), or foreign intelligence information (as defined in
subsection (19) of section 2510 of this title), to assist the official who is to receive that information in the
performance of his official duties. Any Federal official who receives information pursuant to this provision
may use that information only as necessary in the conduct of that person’s official duties subject to any
limitations on the unauthorized disclosure of such information.
(7) Any investigative or law enforcement officer, or other Federal official in carrying out official duties as
such Federal official, who by any means authorized by this chapter, has obtained knowledge of the contents
of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents
or derivative evidence to a foreign investigative or law enforcement officer to the extent that such
disclosure is appropriate to the proper performance of the official duties of the officer making or receiving
the disclosure, and foreign investigative or law enforcement officers may use or disclose such contents or
derivative evidence to the extent such use or disclosure is appropriate to the proper performance of their
official duties.
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(8) Any investigative or law enforcement officer, or other Federal official in carrying out official duties as
such Federal official, who by any means authorized by this chapter, has obtained knowledge of the contents
of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents
or derivative evidence to any appropriate Federal, State, local, or foreign government official to the extent
that such contents or derivative evidence reveals a threat of actual or potential attack or other grave hostile
acts of a foreign power of an agent of as foreign power, domestic or international sabotage, domestic or
international terrorism, or clandestine intelligence gathering activities by an intelligence service or network
of a foreign power or by an agent of a foreign power, within the United States or elsewhere, for the purpose
of preventing or responding to such a threat. Any official who receives information pursuant to this
provision may use that information only as necessary in the conduct of that person’s official duties subject
to any limitations on the unauthorized disclosure of such information, and any State, local, or foreign
official who receives information pursuant to this provision may use that information only consistent with
such guidelines as the Attorney General and Director of Central Intelligence shall jointly issue.
18 U.S.C. 2518. Procedure for interception of wire, oral, or electronic
communications.
(1) Each application for an order authorizing or approving the interception of a wire, oral, or electronic
communication under this chapter shall be made in writing upon oath or affirmation to a judge of
competent jurisdiction and shall state the applicant’s authority to make such application. Each application
shall include the following information:
(a) the identity of the investigative or law enforcement officer making the application, and the officer
authorizing the application;
(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his
belief that an order should be issued, including (i) details as to the particular offense that has been, is being,
or is about to be committed, (ii) except as provided in subsection (11), a particular description of the nature
and location of the facilities from which or the place where the communication is to be intercepted, (iii) a
particular description of the type of communications sought to be intercepted, (iv) the identity of the
person, if known, committing the offense and whose communications are to be intercepted;
(c) a full and complete statement as to whether or not other investigative procedures have been tried and
failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) a statement of the period of time for which the interception is required to be maintained. If the nature of
the investigation is such that the authorization for interception should not automatically terminate when the
described type of communication has been first obtained, a particular description of facts establishing
probable cause to believe that additional communications of the same type will occur thereafter;
(e) a full and complete statement of the facts concerning all previous applications known to the individual
authorizing and making the application, made to any judge for authorization to intercept, or for approval of
interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or
places specified in the application, and the action taken by the judge on each such application; and
(f) where the application is for the extension of an order, a statement setting forth the results thus far
obtained from the interception, or a reasonable explanation of the failure to obtain such results.
(2) The judge may require the applicant to furnish additional testimony or documentary evidence in
support of the application.
(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing
or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of
the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case
of a mobile interception device authorized by a Federal court within such jurisdiction), if the judge
determines on the basis of the facts submitted by the applicant that—
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit
a particular offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular communications concerning that offense will be
obtained through such interception;
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(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous;
(d) except as provided in subsection (11), there is probable cause for belief that the facilities from which,
or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are
about to be used, in connection with the commission of such offense, or are leased to, listed in the name of,
or commonly used by such person.
(4) Each order authorizing or approving the interception of any wire, oral, or electronic communication
under this chapter shall specify—
(a) the identity of the person, if known, whose communications are to be intercepted;
(b) the nature and location of the communications facilities as to which, or the place where, authority to
intercept is granted;
(c) a particular description of the type of communication sought to be intercepted, and a statement of the
particular offense to which it relates;
(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the
application; and
(e) the period of time during which such interception is authorized, including a statement as to whether or
not the interception shall automatically terminate when the described communication has been first
obtained.
An order authorizing the interception of a wire, oral, or electronic communication under this chapter shall,
upon request of the applicant, direct that a provider of wire or electronic communication service, landlord,
custodian or other person shall furnish the applicant forthwith all information, facilities, and technical
assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with
the services that such service provider, landlord, custodian, or person is according the person whose
communications are to be intercepted. Any provider of wire or electronic communication service, landlord,
custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by
the applicant for reasonable expenses incurred in providing such facilities or assistance. Pursuant to section
2522 of this chapter, an order may also be issued to enforce the assistance capability and capacity
requirements under the Communications Assistance for Law Enforcement Act.
(5) No order entered under this section may authorize or approve the interception of any wire, oral, or
electronic communication for any period longer than is necessary to achieve the objective of the
authorization, nor in any event longer than thirty days. Such thirty-day period begins on the earlier of the
day on which the investigative or law enforcement officer first begins to conduct an interception under the
order or ten days after the order is entered. Extensions of an order may be granted, but only upon
application for an extension made in accordance with subsection (1) of this section and the court making
the findings required by subsection (3) of this section. The period of extension shall be no longer than the
authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for
longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to
intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the
interception of communications not otherwise subject to interception under this chapter, and must terminate
upon attainment of the authorized objective, or in any event in thirty days. In the event the intercepted
communication is in a code or foreign language, and an expert in that foreign language or code is not
reasonably available during the interception period, minimization may be accomplished as soon as
practicable after such interception. An interception under this chapter may be conducted in whole or in part
by Government personnel, or by an individual operating under a contract with the Government, acting
under the supervision of an investigative or law enforcement officer authorized to conduct the interception.
(6) Whenever an order authorizing interception is entered pursuant to this chapter, the order may require
reports to be made to the judge who issued the order showing what progress has been made toward
achievement of the authorized objective and the need for continued interception. Such reports shall be
made at such intervals as the judge may require.
(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer,
specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney
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General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a
statute of that State, who reasonably determines that—
(a) an emergency situation exists that involves—
(i) immediate danger of death or serious physical injury to any person,
(ii) conspiratorial activities threatening the national security interest, or
(iii) conspiratorial activities characteristic of organized crime,
that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such
interception can, with due diligence, be obtained, and
(b) there are grounds upon which an order could be entered under this chapter to authorize such
interception,
may intercept such wire, oral, or electronic communication if an application for an order approving the
interception is made in accordance with this section within forty-eight hours after the interception has
occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate
when the communication sought is obtained or when the application for the order is denied, whichever is
earlier. In the event such application for approval is denied, or in any other case where the interception is
terminated without an order having been issued, the contents of any wire, oral, or electronic communication
intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be
served as provided for in subsection (d) of this section on the person named in the application.
(8) (a) The contents of any wire, oral, or electronic communication intercepted by any means authorized by
this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the
contents of any wire, oral, or electronic communication under this subsection shall be done in such way as
will protect the recording from editing or other alterations. Immediately upon the expiration of the period of
the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and
sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be
destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years.
Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and
(2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this
subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or
disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom
under subsection (3) of section 2517.
(b) Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the
applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed
only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed
except on order of the issuing or denying judge, and in any event shall be kept for ten years.
(c) Any violation of the provisions of this subsection may be punished as contempt of the issuing or
denying judge.
(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of
approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions
thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the
application, and such other parties to intercepted communications as the judge may determine in his
discretion that is in the interest of justice, 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, approved or disapproved interception, or the
denial of the application; and
(3) the fact that during the period wire, oral, or electronic communications were or were not
intercepted.
The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel
for inspection such portions of the intercepted communications, applications and orders as the judge
determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent
jurisdiction the serving of the inventory required by this subsection may be postponed.
(9) The contents of any wire, oral, or electronic communication intercepted pursuant to this chapter or
evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or
other proceeding in a Federal or State court unless each party, not less than ten days before the trial,
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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 evidence derived therefrom, on the grounds that
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.
Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make
such motion or the person was not aware of the grounds of the motion. If the motion is granted, the
contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as
having been obtained in violation of this chapter. The judge, upon the filing of such motion by the
aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection
such portions of the intercepted communication or evidence derived therefrom as the judge determines to
be in the interests of justice.
(b) In addition to any other right to appeal, the United States shall have the right to appeal from an order
granting a motion to suppress made under paragraph (a) of this subsection, or the denial of an application
for an order of approval, if the United States attorney shall certify to the judge or other official granting
such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal
shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.
(c) The remedies and sanctions described in this chapter with respect to the interception of electronic
communications are the only judicial remedies and sanctions for nonconstitutional violations of this chapter
involving such communications.
(11) The requirements of subsections (1)(b)(ii) and (3)(d) of this section relating to the specification of the
facilities from which, or the place where, the communication is to be intercepted do not apply if—
(a) in the case of an application with respect to the interception of an oral communication—
(i) the application is by a Federal investigative or law enforcement officer and is approved by the
Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney
General, or an acting Assistant Attorney General;
(ii) the application contains a full and complete statement as to why such specification is not practical
and identifies the person committing the offense and whose communications are to be intercepted; and
(iii) the judge finds that such specification is not practical; and
(b) in the case of an application with respect to a wire or electronic communication—
(i) the application is by a Federal investigative or law enforcement officer and is approved by the
Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney
General, or an acting Assistant Attorney General;
(ii) the application identifies the person believed to be committing the offense and whose
communications are to be intercepted and the applicant makes a showing that there is probable cause to
believe that the person’s actions could have the effect of thwarting interception from a specified
facility;
(iii) the judge finds that such showing has been adequately made; and
(iv) the order authorizing or approving the interception is limited to interception only for such time as
it is reasonable to presume that the person identified in the application is or was reasonably proximate
to the instrument through which such communication will be or was transmitted.
(12) An interception of a communication under an order with respect to which the requirements of
subsections (1)(b)(ii) and (3)(d) of this section do not apply by reason of subsection (11)(a) shall not begin
until the place where the communication is to be intercepted is ascertained by the person implementing the
interception order. A provider of wire or electronic communications service that has received an order as
provided for in subsection (11)(b) may move the court to modify or quash the order on the ground that its
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assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court,
upon notice to the government, shall decide such a motion expeditiously.
18 U.S.C. 2519. Reports concerning intercepted wire, oral, or electronic
communications.
(1) In January of each year, any judge who has issued an order (or an extension thereof) under section
2518 that expired during the preceding year, or who has denied approval of an interception during that year,
shall report to the Administrative Office of the United States Courts—
(a) the fact that an order or extension was applied for;
(b) the kind of order or extension applied for (including whether or not the order was an order with respect
to which the requirements of sections 2518(1)(b)(ii) and 2518(3)(d) of this title did not apply by reason of
section 2518(11) of this title);
(c) the fact that the order or extension was granted as applied for, was modified, or was denied;
(d) the period of interceptions authorized by the order, and the number and duration of any extensions of
the order;
(e) the offense specified in the order or application, or extension of an order;
(f) the identity of the applying investigative or law enforcement officer and agency making the application
and the person authorizing the application; and
(g) the nature of the facilities from which or the place where communications were to be intercepted.
(2) In March of each year the Attorney General, an Assistant Attorney General specially designated by the
Attorney General, or the principal prosecuting attorney of a State, or the principal prosecuting attorney for
any political subdivision of a State, shall report to the Administrative Office of the United States Courts—
(a) the information required by paragraphs (a) through (g) of subsection (1) of this section with respect to
each application for an order or extension made during the preceding calendar year;
(b) a general description of the interceptions made under such order or extension, including (i) the
approximate nature and frequency of incriminating communications intercepted, (ii) the approximate nature
and frequency of other communications intercepted, (iii) the approximate number of persons whose
communications were intercepted, (iv) the number of orders in which encryption was encountered and
whether such encryption prevented law enforcement from obtaining the plain text of communications
intercepted pursuant to such order, and (v) the approximate nature, amount, and cost of the manpower and
other resources used in the interceptions;
(c) the number of arrests resulting from interceptions made under such order or extension, and the offenses
for which arrests were made;
(d) the number of trials resulting from such interceptions;
(e) the number of motions to suppress made with respect to such interceptions, and the number granted or
denied;
(f) the number of convictions resulting from such interceptions and the offenses for which the convictions
were obtained and a general assessment of the importance of the interceptions; and
(g) the information required by paragraphs (b) through (f) of this subsection with respect to orders or
extensions obtained in a preceding calendar year.
(3) In June of each year the Director of the Administrative Office of the United States Courts shall transmit
to the Congress a full and complete report concerning the number of applications for orders authorizing or
approving the interception of wire, oral, or electronic communications pursuant to this chapter and the
number of orders and extensions granted or denied pursuant to this chapter during the preceding calendar
year. Such report shall include a summary and analysis of the data required to be filed with the
Administrative Office by subsections (1) and (2) of this section. The Director of the Administrative Office
of the United States Courts is authorized to issue binding regulations dealing with the content and form of
the reports required to be filed by subsections (1) and (2) of this section.
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18 U.S.C. 2520. Recovery of civil damages authorized.
(a) In general.—Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil
action recover from the person or entity other than the United States which engaged in that violation such
relief as may be appropriate.
(b) Relief.—In an action under this section, appropriate relief includes—
(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c) and punitive damages in appropriate cases; and
(3) a reasonable attorney’s fee and other litigation costs reasonably incurred.
(c) Computation of damages.—(1) In an action under this section, if the conduct in violation of this chapter
is the private viewing of a private satellite video communication that is not scrambled or encrypted or if the
communication is a radio communication that is transmitted on frequencies allocated under subpart D of
part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the
conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or
private commercial gain, then the court shall assess damages as follows:
(A) If the person who engaged in that conduct has not previously been enjoined under section 2511(5)
and has not been found liable in a prior civil action under this section, the court shall assess the greater
of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $50 and
not more than $500.
(B) If, on one prior occasion, the person who engaged in that conduct has been enjoined under section
2511(5) or has been found liable in a civil action under this section, the court shall assess the greater of
the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $100 and not
more than $1000.
(2) In any other action under this section, the court may assess as damages whichever is the greater of—
(A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a
result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.
(d) Defense.—A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;
(2) a request of an investigative or law enforcement officer under section 2518(7) of this title; or
(3) a good faith determination that section 2511(3) or 2511(2)(i) of this title permitted the conduct
complained of;
is a complete defense against any civil or criminal action brought under this chapter or any other law.
(e) Limitation.—A civil action under this section may not be commenced later than two years after the date
upon which the claimant first has a reasonable opportunity to discover the violation.
(f) Administrative Discipline.—If a court or appropriate department or agency determines that the United
States or any of its departments or agencies has violated any provision of this chapter, and the court finds
that the circumstances surrounding the violation raise serious questions about whether or not an officer or
employee of the United States acted willfully or intentionally with respect to the possible violation, the
department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court
or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary
action against the officer or employee is warranted. If the head of the department or agency involved
determines that disciplinary action is not warranted, he or she shall notify the Inspector General with
jurisdiction over the department or agency concerned and shall provide the Inspector General with the
reasons for such determination.
(g) Improper Disclosure Is Violation.—Any willful disclosure or use by an investigative or law
enforcement officer or governmental entity of information beyond the extent permitted by section 2517 is a
violation of this chapter for purposes of section 2510(a).
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18 U.S.C. 2521. Injunction against illegal interception.
Whenever it shall appear that any person is engaged or is about to engage in any act which constitutes or
will constitute a felony violation of this chapter, the Attorney General may initiate a civil action in a district
court of the United States to enjoin such violation. The court shall proceed as soon as practicable to the
hearing and determination of such an action, and may, at any time before final determination, enter such a
restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and
substantial injury to the United States or to any person or class of persons for whose protection the action is
brought. A proceeding under this section is governed by the Federal Rules of Civil Procedure, except that,
if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of
Criminal Procedure.
18 U.S.C. 2522. Enforcement of the Communications Assistance for Law
Enforcement Act.
(a) Enforcement by court issuing surveillance order.—If a court authorizing an interception under this
chapter, a State statute, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) or
authorizing use of a pen register or a trap and trace device under chapter 206 or a State statute finds that a
telecommunications carrier has failed to comply with the requirements of the Communications Assistance
for Law Enforcement Act, the court may, in accordance with section 108 of such Act, direct that the carrier
comply forthwith and may direct that a provider of support services to the carrier or the manufacturer of the
carrier’s transmission or switching equipment furnish forthwith modifications necessary for the carrier to
comply.
(b) Enforcement upon application by Attorney General.—The Attorney General may, in a civil action in the
appropriate United States district court, obtain an order, in accordance with section 108 of the
Communications Assistance for Law Enforcement Act, directing that a telecommunications carrier, a
manufacturer of telecommunications transmission or switching equipment, or a provider of
telecommunications support services comply with such Act.
(c) Civil penalty.—
(1) In general.—A court issuing an order under this section against a telecommunications carrier, a
manufacturer of telecommunications transmission or switching equipment, or a provider of
telecommunications support services may impose a civil penalty of up to $10,000 per day for each day in
violation after the issuance of the order or after such future date as the court may specify.
(2) Considerations.—In determining whether to impose a civil penalty and in determining its amount, the
court shall take into account—
(A) the nature, circumstances, and extent of the violation;
(B) the violator’s ability to pay, the violator’s good faith efforts to comply in a timely manner, any
effect on the violator’s ability to continue to do business, the degree of culpability, and the length of
any delay in undertaking efforts to comply; and
(c) such other matters as justice may require.
(d) Definitions.—As used in this section, the terms defined in section 102 of the Communications
Assistance for Law Enforcement Act have the meanings provided, respectively, in such section.
Chapter 121 (“Stored Communications Act”)
18 U.S.C. 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
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(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is
in electronic storage in such system shall be punished as provided in subsection (b) of this section.
(b) Punishment.—The punishment for an offense under subsection (a) of this section is—
(1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or
private commercial gain, or in furtherance of any criminal or tortious act in violation of the constitution and
laws of the United States or any state—
(A) a fine under this title or imprisonment for not more than 5 years, 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 10 years, or both, for any subsequent
offense under this subparagraph; and
(2) (A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a
first offense under this paragraph; and
(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense
under this subparagraph that occurs after a conviction of another offense under this section.
(c) Exceptions.—Subsection (a) of this section does not apply with respect to conduct authorized—
(1) by the person or entity providing a wire or electronic communications service;
(2) by a user of that service with respect to a communication of or intended for that user; or
(3) in section 2703, 2704 or 2518 of this title.
18 U.S.C. 2702. Voluntary disclosure of customer communications or records.
(a) Prohibitions.—Except as provided in subsection (b) or (c)—
(1) a person or entity providing an electronic communication service to the public shall not knowingly
divulge to any person or entity the contents of a communication while in electronic storage by that service;
and
(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any
person or entity the contents of any communication which is carried or maintained on that service—
(A) on behalf of, and received by means of electronic transmission from (or created by means of
computer processing of communications received by means of electronic transmission from), a
subscriber or customer of such service;
(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; and
(3) a provider of remote computing service or electronic communication service to the public shall not
knowingly divulge a record or other information pertaining to a subscriber to or customer of such service
(not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.
(b) Exceptions for disclosure of communications.—A provider described in subsection (a) may divulge the
contents of a communication—
(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended
recipient;
(2) as otherwise authorized in section 2517, 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 service or to the protection of the rights or
property of the provider of that service;
(6) to the National Center for Missing and Exploited Children, in connection with a report submitted
thereto under section 2258A;
(7) to a law enforcement agency—
(A) if the contents—
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(i) were inadvertently obtained by the service provider; and
(ii) appear to pertain to the commission of a crime; or
[(B) Repealed. P.L. 108-21, Title V, §508(b)(1)(A), April 30, 2003, 117 Stat. 684]
[(C) Repealed. P.L. 107-296, Title II, §225(d)(1)(C), November 25, 2002, 116 Stat. 2157]
(8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of
death or serious physical injury to any person requires disclosure without delay of communications relating
to the emergency.
(c) Exceptions for disclosure of customer records.—A provider described in subsection (a) may divulge a
record or other information pertaining to a subscriber to or customer of such service (not including the
contents of communications covered by subsection (a)(1) or (a)(2))—
(1) as otherwise authorized in section 2703;
(2) with the lawful consent of the customer or subscriber;
(3) 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;
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of
death or serious physical injury to any person requires disclosure without delay of information relating to
the emergency;
(5) to the National Center for Missing and Exploited Children, in connection with a report submitted
thereto under section 2258A7; or
(6) to any person other than a governmental entity.
(d) Reporting of emergency disclosures.—On an annual basis, the Attorney General shall submit to the
Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the
Senate a report containing—
(1) the number of accounts from which the Department of Justice has received voluntary disclosures under
subsection (b)(8); and
(2) a summary of the basis for disclosure in those instances where—
(A) voluntary disclosures under subsection (b)(8) were made to the Department of Justice; and
(B) the investigation pertaining to those disclosures was closed without the filing of criminal charges.
18 U.S.C. 2703. Required disclosure of customer communications or records.
(a) Contents of wire or electronic communications in electronic storage.—A governmental entity may
require the disclosure by a provider of electronic communication service of the contents of a wire or
electronic communication, that is in electronic storage in a wire or electronic communications system for
one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the
Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures)
by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of
electronic communications services of the contents of a wire or electronic communication that has been in
electronic storage in an electronic communications system for more than one hundred and eighty days by
the means available under subsection (b) of this section.
(b)(1) Contents of electronic communications in a remote computing service.—(1) A governmental entity
may require a provider of remote computing service to disclose the contents of any wire or electronic
communication to which this paragraph is made applicable by paragraph (2) of this subsection—
(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant
issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a
State court, issued using State warrant procedures) by a court of competent jurisdiction by a court with
jurisdiction; or
(B) with prior notice from the governmental entity to the subscriber or customer if the governmental
entity—
(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State
grand jury or trial subpoena; or
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(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 wire or electronic communication that is held or
maintained on that service—
(A) on behalf of, and received by means of electronic transmission from (or created by means of
computer processing of communications received by means of electronic transmission from), a
subscriber or customer of such remote computing service; and
(B) solely for the purpose of providing storage or computer processing services to such subscriber or
customer, if the provider is not authorized to access the contents of any such communications for
purposes of providing any services other than storage or computer processing.
(c) Records concerning electronic communication service or remote computing service.—(1)(A) A
government entity may require a provider of electronic communication service or remote computing
service to disclose a record or other information pertaining to a subscriber to or customer of such service
(not including the contents of communications).
(B) A provider of electronic communication service or remote computing service shall disclose a record or
other information pertaining to a subscriber to or customer of such service (not including the contents of
communications covered by subsection (a) or (b) of this section) to a governmental entity only when the
governmental entity—
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal
Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of
competent jurisdiction by a court with jurisdiction;
(B) obtains a court order for such disclosure under subsection (d) of this section;
(C) has the consent of the subscriber or customer to such disclosure; or
(D) submits a formal written request relevant to a law enforcement investigation concerning
telemarketing fraud for the name, address, and place of business of a subscriber or customer of such
provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section
2325 of this title); or
(E) seeks information under paragraph (2).
(2) A provider of electronic communication service or remote computing service shall disclose to a
governmental entity the (A) name; (B) address; (C) local and long distance telephone connection records,
or records of session times and durations; (D) length of service (including start date) and types of service
utilized; (E) telephone or instrument number or other subscriber number or identity, including any
temporarily assigned network address; and (F) means and source of payment (including any credit car or
bank account number), of a subscriber to or customer of such service, when the governmental entity uses an
administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial
subpoena or any means available under paragraph (1).
(3) A governmental entity receiving records or information under this subsection is not required to provide
notice to a subscriber or customer.
(d) Requirements for court order.—A court order for disclosure under subsection (b) or (c) may be issued
by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers
specific and articulable facts showing that there are reasonable grounds to believe that the contents of a
wire or electronic communication, or the records or other information sought, are relevant and material to
an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall
not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a
motion made promptly by the service provider, may quash or modify such order, if the information or
records requested are unusually voluminous in nature or compliance with such order otherwise would cause
an undue burden on such provider.
(e) No cause of action against a provider disclosing information under this chapter.—No cause of action
shall lie in any court against any provider of wire or electronic communication service, its officers,
employees, agents, or other specified persons for providing information, facilities, or assistance in
accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification
under this chapter.
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(f) Requirement to preserve evidence.—(1) In general.—A provider of wire or electronic communication
services or a remote computing service, upon the request of a governmental entity, shall take all necessary
steps to preserve records and other evidence in its possession pending the issuance of a court order or other
process.
(2) Period of retention.—Records referred to in paragraph (1) shall be retained for a period of 90 days,
which shall be extended for an additional 90-day period upon a renewed request by the governmental
entity.
(g) Presence of Officer not Required.—Notwithstanding section 3105 of this title, the presence of an officer
shall not be required for service or execution of a search warrant issued in accordance with this chapter
requiring disclosure by a provider of electronic communications service or remote computing service of the
contents of communications or records or other information pertaining to a subscriber to or customer of
such service.
18 U.S.C. 2704. Backup preservation.
(a) Backup preservation.—(1) A governmental entity acting under section 2703(b)(2) may include in its
subpoena or court order a requirement that the service provider to whom the request is directed create a
backup copy of the contents of the electronic communications sought in order to preserve those
communications. Without notifying the subscriber or customer of such subpoena or court order, such
service provider shall create such backup copy as soon as practicable consistent with its regular business
practices and shall confirm to the governmental entity that such backup copy has been made. Such backup
copy shall be created within two business days after receipt by the service provider of the subpoena or court
order.
(2) Notice to the subscriber or customer shall be made by the governmental entity within three days after
receipt of such confirmation, unless such notice is delayed pursuant to section 2705(a).
(3) The service provider shall not destroy such backup copy until the later of—
(A) the delivery of the information; or
(B) the resolution of any proceedings (including appeals of any proceeding) concerning the
government’s subpoena or court order.
(4) The service provider shall release such backup copy to the requesting governmental entity no sooner
than fourteen days after the governmental entity’s notice to the subscriber or customer if such service
provider—
(A) has not received notice from the subscriber or customer that the subscriber or customer has
challenged the governmental entity’s request; and
(B) has not initiated proceedings to challenge the request of the governmental entity.
(5) A governmental entity may seek to require the creation of a backup copy under subsection (a)(1) of this
section if in its sole discretion such entity determines that there is reason to believe that notification under
section 2703 of this title of the existence of the subpoena or court order may result in destruction of or
tampering with evidence. This determination is not subject to challenge by the subscriber or customer or
service provider.
(b) Customer challenges. —(1) Within fourteen days after notice by the governmental entity to the
subscriber or customer under subsection (a)(2) of this section, such subscriber or customer may file a
motion to quash such subpoena or vacate such court order, with copies served upon the governmental entity
and with written notice of such challenge to the service provider. A motion to vacate a court order shall be
filed in the court which issued such order. A motion to quash a subpoena shall be filed in the appropriate
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 respect.
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(2) Service shall be made under this section upon a governmental entity by delivering or mailing by
registered or certified mail a copy of the papers to the person, office, or department specified in the notice
which the customer has received pursuant to this chapter. For the purposes of this section, the term
“delivery” has the meaning given that term in the Federal Rules of Civil Procedure.
(3) If the court finds that the customer has complied with paragraphs (1) and (2) of this subsection, the
court shall order the governmental entity to file a sworn response, which may be filed in camera if the
governmental entity includes in its response the reasons which make in camera review appropriate. If the
court is unable to determine the motion or application on the basis of the parties’ initial allegations and
response, the court may conduct such additional proceedings as it deems appropriate. All such proceedings
shall be completed and the motion or application decided as soon as practicable after the filing of the
governmental entity’s response.
(4) If the court finds that the applicant is not the subscriber or customer for whom the communications
sought by the governmental entity are maintained, or that there is a reason to believe that the law
enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall
deny the motion or application and order such process enforced. If the court finds that the applicant is the
subscriber or customer for whom the communications sought by the governmental entity are maintained,
and that there is not a reason to believe that the communications sought are relevant to a legitimate law
enforcement inquiry, or that there has not been substantial compliance with the provisions of this chapter, it
shall order the process quashed.
(5) A court order denying a motion or application under this section shall not be deemed a final order and
no interlocutory appeal may be taken therefrom by the customer.
18 U.S.C. 2705. Delayed notice.
(a) Delay of notification.—(1) A governmental entity acting under section 2703(b) of this title may—
(A) where a court order is sought, include in the application a request, which the court shall grant, for
an order delaying the notification required under section 2703(b) of this title for a period not to exceed
ninety days, if the court determines that there is reason to believe that notification of the existence of
the court order may have an adverse result described in paragraph (2) of this subsection; or
(B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State
grand jury subpoena is obtained, delay the notification required under section 2703(b) of this title for a
period not to exceed ninety days upon the execution of a written certification of a supervisory official
that there is reason to believe that notification of the existence of the subpoena may have an adverse
result described in paragraph (2) of this subsection.
(2) An adverse result for the purposes of paragraph (1) of this subsection is—
(A) endangering the life or physical safety of an individual;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(3) The governmental entity shall maintain a true copy of certification under paragraph (1)(B).
(4) Extensions of the delay of notification provided in section 2703 of up to ninety days each may be
granted by the court upon application, or by certification by a governmental entity, but only in accordance
with subsection (b) of this section.
(5) Upon expiration of the period of delay of notification under paragraph (1) or (4) of this subsection, the
governmental entity shall serve upon, or deliver by registered or first-class mail to, the customer or
subscriber a copy of the process or request together with notice that—
(A) states with reasonable specificity the nature of the law enforcement inquiry; and
(B) informs such customer or subscriber—
(i) that information maintained for such customer or subscriber by the service provider named in
such process or request was supplied to or requested by that governmental authority and the date
on which the supplying or request took place;
(ii) that notification of such customer or subscriber was delayed;
(iii) what governmental entity or court made the certification or determination pursuant to which
that delay was made; and
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(iv) which provision of this chapter allowed such delay.
(6) As used in this subsection, the term “supervisory official” means the investigative agent in charge or
assistant investigative agent in charge or an equivalent of an investigating agency’s headquarters or
regional office, or the chief prosecuting attorney or the first assistant prosecuting attorney or an equivalent
of a prosecuting attorney’s headquarters or regional office.
(b) Preclusion of notice to subject of governmental access.—A governmental entity acting under section
2703, when it is not required to notify the subscriber or customer under section 2703(b)(1), or to the extent
that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order
commanding a provider of electronic communications service or remote computing service to whom a
warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify
any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an
order if it determines that there is reason to believe that notification of the existence of the warrant,
subpoena, or court order will 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.
18 U.S.C. 2706. Cost reimbursement.
(a) Payment.—Except as otherwise provided in subsection (c), a governmental entity obtaining the contents
of communications, records, or other information under section 2702, 2703, or 2704 of this title shall pay to
the person or entity assembling or providing such information a fee for reimbursement for such costs as are
reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or
otherwise providing such information. Such reimbursable costs shall include any costs due to necessary
disruption of normal operations of any electronic communication service or remote computing service in
which such information may be stored.
(b) Amount.—The amount of the fee provided by subsection (a) shall be as mutually agreed by the
governmental entity and the person or entity providing the information, or, in the absence of agreement,
shall be as determined by the court which issued the order for production of such information (or the court
before which a criminal prosecution relating to such information would be brought, if no court order was
issued for production of the information).
(c) Exception.—The requirement of subsection (a) of this section does not apply with respect to records or
other information maintained by a communications common carrier that relate to telephone toll records and
telephone listings obtained under section 2703 of this title. The court may, however, order a payment as
described in subsection (a) if the court determines the information required is unusually voluminous in
nature or otherwise caused an undue burden on the provider.
18 U.S.C. 2707. Civil action.
(a) Cause of action.—Except as provided in section 2703(e), any provider of electronic communication
service, subscriber, or other person 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 other than the United States which engaged in that violation such relief as
may be appropriate.
(b) Relief.—In a civil action under this section, appropriate relief includes—
(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c); and
(3) a reasonable attorney’s fee and other litigation costs reasonably incurred.
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(c) Damages.—The court may assess as damages in a civil action under this section the sum of the actual
damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no
case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or
intentional, the court may assess punitive damages. In the case of a successful action to enforce liability
under this section, the court may assess the costs of the action, together with reasonable attorney fees
determined by the court.
(d) Administrative Discipline.—If a court or appropriate department or agency determines that the United
States or any of its departments or agencies has violated any provision of this chapter, and the court or
appropriate department or agency finds that the circumstances surrounding the violation raise serious
questions about whether or not an officer or employee of the United States acted willfully or intentionally
with respect to the possible violation, the department or agency shall, upon receipt of a true and correct
copy of the decision and findings of the court or appropriate department or agency promptly initiate a
proceeding to determine whether disciplinary action against the officer or employee is warranted. If the
head of the department or agency involved determines that disciplinary action is not warranted, he or she
shall notify the Inspector General with jurisdiction over the department or agency concerned and shall
provide the Inspector General with the reasons for such determination.
(e) Defense.—A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization
(including a request of a governmental entity under section 2703(f) of this title);
(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.
(f) 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.
(g) Improper Disclosure Is Violation.—Any willful disclosure of a “record”, as that term is defined in
section 552a(a) of title 5, United States Code, obtained by an investigative or law enforcement officer, or
governmental entity, pursuant to section 2703 of this title, or from a device installed pursuant to section
3123 or 3125 of this title, that is not a disclosure made in the proper performance of the official duties of
the officer or governmental entity making the disclosure, is a violation of this chapter. This provision shall
not apply to information previously lawfully disclosed (prior to the commencement of any civil or
administrative proceeding under this chapter) to the public by a Federal, State, or local governmental entity
or by the plaintiff in a civil action under this chapter.
18 U.S.C. 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.
18 U.S.C. 2709. Counterintelligence access to telephone toll and transactional
records.
(a) Duty to provide—A wire or electronic communication service provider shall comply with a request for
subscriber information and toll billing records information, or electronic communication transactional
records in its custody or possession made by the Director of the Federal Bureau of Investigation under
subsection (b) of this section.
(b) Required certification—The Director of the Federal Bureau of Investigation, or his designee in a
position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a
Bureau field office designated by the Director, may—
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(1) request the name, address, length of service, and local and long distance toll billing records of a person
or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service
provider to which the request is made that the name, address, length of service, and toll billing records
sought are relevant to an authorized investigation to protect against international terrorism or clandestine
intelligence activities, provided that such an investigation of a United States person is not conducted solely
on the basis of activities protected by the first amendment to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee)
certifies in writing to the wire or electronic communication service provider to which the request is made
that the information sought is relevant to an authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided that such an investigation of a United States person
is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of
the United States.
(c) Prohibition of certain disclosure—(1) If the Director of the Federal Bureau of Investigation, or his
designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent
in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a
danger to the national security of the United States, interference with a criminal, counter terrorism, or
counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical
safety of any person, no wire or electronic communications service provider, or officer, employee, or agent
thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with
the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the
Federal Bureau of Investigation has sought or obtained access to information or records under this section.
(2) The request shall notify the person or entity to whom the request is directed of the nondisclosure
requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to
obtain legal advice or legal assistance with respect to the request shall inform such person of any applicable
nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to
the same prohibitions on disclosure under paragraph (1).
(4) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director,
any person making or intending to make a disclosure under this section shall identify to the Director or
such designee the person to whom such disclosure will be made or to whom such disclosure was made
prior to the request, except that nothing in this section shall require a person to inform the Director or such
designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice
or legal assistance with respect to the request under subsection (a).
(d) Dissemination by bureau—The Federal Bureau of Investigation may disseminate information and
records obtained under this section only as provided in guidelines approved by the Attorney General for
foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal
Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such
information is clearly relevant to the authorized responsibilities of such agency.
(e) Requirement that certain congressional bodies be informed—On a semiannual basis the Director of the
Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on
the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning
all requests made under subsection (b) of this section.
(f) Libraries—A library (as that term is defined in section 213(1) of the Library Services and Technology
Act (20 U.S.C. 9122(1)), the services of which include access to the Internet, books, journals, magazines,
newspapers, or other similar forms of communication in print or digitally by patrons for their use, review,
examination, or circulation, is not a wire or electronic communication service provider for purposes of this
section, unless the library is providing the services defined in section 2510(15) (“electronic communication
service”) of this title.
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18 U.S.C. 2711. Definitions for chapter.
As used in this chapter—
(1) the terms defined in section 2510 of this title have, respectively, the definitions given such terms in that
section;
(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;
(3) the term “court of competent jurisdiction” includes (A) any district court of the United States (including a magistrate judge of such a court) or any
United States court of appeals that (i) has jurisdiction over the offense being investigated;
(ii) is in or for a district in which the provider of a wire or electronic communication service is
located or in which the wire or electronic communications, records, or other information are
stored; or
(iii) is acting on a request for foreign assistance pursuant to section 3512 of this title; or
(B) a court of general criminal jurisdiction of a State authorized by the law of that State to issue
search warrants; and
(4) the term “governmental entity” means a department or agency of the United States or State or political
subdivision thereof.
18 U.S.C. 2712. Civil Action against the United States.
(a) In General.— Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of
this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act (50 U.S.C.
1801 et seq.) may commence an action in United States District Court against the United States to recover
money damages. In any such action, if a person who is aggrieved successfully establishes a violation of this
chapter or of chapter 119 of this title or of the above special provisions of title 50, the Court may assess as
damages—
(1) actual damages, but not less than $10,000, whichever amount is greater; and
(2) litigation costs, reasonably incurred.
(b) Procedures.—(1) Any action against the United States under this section may be commenced only after
a claim is presented to the appropriate department or agency under the procedures of the Federal Tort
Claims Act, as set forth in title 28, United States Code.
(2) Any action against the United States under this section shall be forever barred unless it is presented in
writing to the appropriate Federal agency within 2 years after such claim accrues or unless action is begun
within 6 months after the date of mailing, by certified or registered mail, of notice of final denial of the
claim by the agency to which it was presented. The claim shall accrue on the date upon which the claimant
first has a reasonable opportunity to discover the violation.
(3) Any action under this section shall be tried in the court without a jury.
(4) Notwithstanding any other provision of law, the procedures set forth in section 106(f), 305(g), or 405(f)
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means
by which materials governed by those sections may be reviewed.
(5) An amount equal to any award against the United States under this section shall be reimbursed by the
department or agency concerned to the fund described in section 1304 of title 31, United States Code, out
of any appropriation, fund, or other account (excluding any part of such appropriation, fund, or account that
is available for the enforcement of any Federal law) that is available for the operating expenses of the
department or agency concerned.
(c) Administrative Discipline.—If a court or appropriate department or agency determines that the United
States or any of the departments or agencies has violated any provision of this chapter, and the court or
appropriate department or agency finds that the circumstances surrounding the violation raise serious
questions about whether or not an officer or employee of the United States acted willfully or intentionally
with respect to the possible violation, the department or agency shall, upon receipt of a true and correct
copy of the decision and findings of the court or appropriate department or agency promptly initiate a
proceeding to determine whether disciplinary action against the officer or employee is warranted. If the
head of the department or agency involved determines that disciplinary action is not warranted, he or she
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shall notify the Inspector General with jurisdiction over the department or agency concerned and shall
provide the Inspector General with the reasons for such determination.
(d) Exclusive Remedy.—Any action against the United States under this subsection shall be the exclusive
remedy against the United States for any claims within the purview of this section.
(e) Stay of Proceedings.—(1) Upon the motion of the united States, the curt shall stay any action
commenced under this section f the court determines that civil discovery will adversely affect the ability of
the Government to conduct a related investigation or the prosecution of a related criminal case. Such a stay
shall toll the limitations periods of paragraph (2) of subsection (b).
(2) In this subsection, the terms “related criminal case” and “related investigation” means an actual
prosecution or investigation in progress at the time at which the request for the stay or any subsequent
motion to lift the stay is made. In determining whether any investigation or a criminal case is related to an
action commenced under this section, the court shall consider the degree of similarity between the parties,
witnesses, facts, and circumstances involved in the 2 proceedings, without requiring that nay one or more
factors be identical.
(3) In requesting a stay under paragraph (1), the Government may, in appropriate cases submit evidence ex
parte in order to avoid disclosing any matter that may adversely affect a related investigation or a related
criminal case. If the Government makes such an ex parte submission, the plaintiff shall be given an
opportunity to make a submission to the court, not ex parte, and the court may, in its discretion, request
further information from either party.
Chapter 206 (“Pen Register and Trap and Trace Devices”)
18 U.S.C. 3121. General prohibition on pen register and tape and trace device
use; exception.
(a) In general—Except as provided in this section, no person may install or use a pen register or a trap and
trace device without first obtaining a court order under section 3123 of this title or under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(b) Exception—The prohibition of subsection (a) does not apply with respect to the use of a pen register or
a trap and trace device by a provider of electronic or wire communication service—
(1) relating to the operation, maintenance, and testing of a wire or electronic communication service or to
the protection of the rights or property of such provider, or to the protection of users of that service from
abuse of service or unlawful use of service; or
(2) to record the fact that a wire or electronic communication was initiated or completed in order to protect
such provider, another provider furnishing service toward the completion of the wire communication, or a
user of that service, from fraudulent, unlawful or abusive use of service; or
(3) where the consent of the user of that service has been obtained.
(c) Limitation—A government agency authorized to install and use a pen register or trap and trace device
under this chapter or under State law shall use technology reasonably available to it that restricts the
recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling
information utilized in identifying the origination or destination of wire or electronic communications.
(d) Penalty—Whoever knowingly violates subsection (a) shall be fined under this title or imprisoned not
more than one year, or both.
18 U.S.C. 3122. Application for an order for a pen register or a trap and trace
device.
(a) Application.(1) An attorney for the Government may make application for an order or an extension of
an order under section 3123 of this title authorizing or approving the installation and use of a pen register or
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a trap and trace device under this chapter, in writing under oath or equivalent affirmation, to a court of
competent jurisdiction.
(2) Unless prohibited by State law, a State investigative or law enforcement officer may make application
for an order or an extension of an order under section 3123 of this title authorizing or approving the
installation and use of a pen register or a trap and trace device under this chapter, in writing under oath or
equivalent affirmation, to a court of competent jurisdiction of such State.
(b) Contents of application—An application under subsection (a) of this section shall include—
(1) the identity of the attorney for the Government or the State law enforcement or investigative officer
making the application and the identity of the law enforcement agency conducting the investigation; and
(2) a certification by the applicant that the information likely to be obtained is relevant to an ongoing
criminal investigation being conducted by that agency.
18 U.S.C. 3123. Issuance of an order for a pen register or a trap and trace device.
(a) In general. (1) Upon an application made under section 3122(a)(1) of this title, the court shall enter an
ex parte order authorizing the installation and use of a pen register or a trap and trace device if the court
finds, based on facts contained in the application, that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation. Such order shall, upon service of such
order, apply to any entity providing wire or electronic communication service in the United States whose
assistance may facilitate the execution of the order.
(2) Upon an application made under section 3122(a)(2) of this title, the court shall enter an ex parte order
authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the
court if the court finds, based on facts contained in the application, that the information likely to be
obtained by such installation and use is relevant to an ongoing criminal investigation.
(3)(A) Where the law enforcement agency implementing an ex part order under this
subsection seeks to do so by installing and using its own pen register or trap and trace device on a
packet-switched data network of a provider of electronic communication service to the public the
agency shall ensure that a record will be maintained which will identify—
(i) any officer or officers who installed the device and any officer or officers who accessed the
device to obtain information from the network;
(ii) the date and time the device was installed, the date and time the device was uninstalled, and
the date, time, and duration of each time the device is accessed to obtain information;
(iii) the configuration of the device at the time of its installation and any subsequent modification
thereof; and
(iv) any information which has been collected by the device.
To the extent that the pen register or trap and trace device can be set automatically to record this
information electronically, the record shall be maintained electronically throughout the installation and
use of the such device.
(B) The record maintained under subparagraph (A) shall be provided ex parte and under seal to the
court which entered the ex parte order authorizing the installation and use of the device within 30 days
after termination of the order (including any extensions thereof).
(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 or other facility to which the pen register or trap and trace device is to be attached or applied;
(B) the identity, if known, of the person who is the subject of the criminal investigation;
(C) the attributes of the communications to which the order applies, including the number or other
identifier and, if known, the location of the telephone line or other facility to which the pen register or
trap and trace device is to be attached or applied, and, in the case of an order authorizing installation
and use of a trap and trace device under subsection (a)(2), the geographic limits of the order; and
(D) a statement of the offense to which the information likely to be obtained by the pen register or trap
and trace device relates; and
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(2) shall direct, upon the request of the applicant, the furnishing of information, facilities, and technical
assistance necessary to accomplish the installation of the pen register or trap and trace device under section
3124 of this title.
(c) Time period and extensions—
(1) An order issued under this section shall authorize the installation and use of a pen register or a trap and
trace device for a period not to exceed sixty days.
(2) Extensions of such an order may be granted, but only upon an application for an order under section
3122 of this title and upon the judicial finding required by subsection (a) of this section. The period of
extension shall be for a period not to exceed sixty days.
(d) Nondisclosure of existence of pen register or a trap and trace device—An order authorizing or
approving the installation and use of a pen register or a trap and trace device shall direct that—
(1) the order be sealed until otherwise ordered by the court; and
(2) the person owning or leasing the line or other facility to which the pen register or a trap and trace
device is attached, or applied, or who is obligated by the order to provide assistance to the applicant, not
disclose the existence of the pen register or trap and trace device or the existence of the investigation to the
listed subscriber, or to any other person, unless or until otherwise ordered by the court.
18 U.S.C. 3124. Assistance in installation and use of a pen register or a trap and
trace device.
(a) Pen registers—Upon the request of an attorney for the Government or an officer of a law enforcement
agency authorized to install and use a pen register under this chapter, a provider of wire or electronic
communication service, landlord, custodian, or other person shall furnish such investigative or law
enforcement officer forthwith all information, facilities, and technical assistance necessary to accomplish
the installation of the pen register unobtrusively and with a minimum of interference with the services that
the person so ordered by the court accords the party with respect to whom the installation and use is to take
place, if such assistance is directed by a court order as provided in section 3123(b)(2) of this title.
(b) Trap and trace device—Upon the request of an attorney for the Government or an officer of a law
enforcement agency authorized to receive the results of a trap and trace device under this chapter, a
provider of a wire or electronic communication service, landlord, custodian, or other person shall install
such device forthwith on the appropriate line or other facility and shall furnish such investigative or law
enforcement officer all additional information, facilities and technical assistance including installation and
operation of the device unobtrusively and with a minimum of interference with the services that the person
so ordered by the court accords the party with respect to whom the installation and use is to take place, if
such installation and assistance is directed by a court order as provided in section 3123(b)(2) of this title.
Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished, pursuant
to section 3123(b) or section 3125 of this title, to the officer of a law enforcement agency, designated in the
court order, at reasonable intervals during regular business hours for the duration of the order.
(c) Compensation—A provider of a wire or electronic communication service, landlord, custodian, or other
person who furnishes facilities or technical assistance pursuant to this section shall be reasonably
compensated for such reasonable expenses incurred in providing such facilities and assistance.
(d) No cause of action against a provider disclosing information under this chapter—No cause of action
shall lie in any court against any provider of a wire or electronic communication service, its officers,
employees, agents, or other specified persons for providing information, facilities, or assistance in
accordance with a court order under this chapter or request pursuant to section 3125 of this title.
(e) Defense—A good faith reliance on a court order under this chapter, a request pursuant to section 3125
of this title, a legislative authorization, or a statutory authorization is a complete defense against any civil or
criminal action brought under this chapter or any other law.
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(f) Communications assistance enforcement orders—Pursuant to section 2522, an order may be issued to
enforce the assistance capability and capacity requirements under the Communications Assistance for Law
Enforcement Act.
18 U.S.C. 3125. Emergency pen register and trap and trace device installation.
(a) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer,
specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney
General, any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant
Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting
pursuant to a statute of that State, who reasonably determines that—
(1) an emergency situation exists that involves—
(A) immediate danger of death or serious bodily injury to any person; or
(B) conspiratorial activities characteristic of organized crime;
(C) an immediate threat to a national security interest; or
(D) an ongoing attack on a protected computer (as defined in section 1030) that constitutes a crime
punishable by a term of imprisonment greater than one year;
that requires the installation and use of a pen register or a trap and trace device before an order authorizing
such installation and use can, with due diligence, be obtained, and
(2) there are grounds upon which an order could be entered under this chapter to authorize such installation
and use;
may have installed and use a pen register or trap and trace device if, within forty-eight hours after the
installation has occurred, or begins to occur, an order approving the installation or use is issued in
accordance with section 3123 of this title.
(b) In the absence of an authorizing order, such use shall immediately terminate when the information
sought is obtained, when the application for the order is denied or when forty-eight hours have lapsed since
the installation of the pen register or trap and trace device, whichever is earlier.
(c) The knowing installation or use by any investigative or law enforcement officer of a pen register or trap
and trace device pursuant to subsection (a) without application for the authorizing order within forty-eight
hours of the installation shall constitute a violation of this chapter.
(d) A provider of a wire or electronic service, landlord, custodian, or other person who furnished facilities
or technical assistance pursuant to this section shall be reasonably compensated for such reasonable
expenses incurred in providing such facilities and assistance.
18 U.S.C. 3126. Reports concerning pen registers and trap and trace devices.
The Attorney General shall annually report to Congress on the number of pen register orders and orders for
trap and trace devices applied for by law enforcement agencies of the Department of Justice, which report
shall include information concerning—
(1) the period of interceptions authorized by the order, and the number and duration of any extensions of
the order;
(2) the offense specified in the order or application, or extension of an order;
(3) the number of investigations involved;
(4) the number and nature of the facilities affected; and
(5) the identity, including district, of the applying investigative or law enforcement agency making the
application and the person authorizing the order.
18 U.S.C. 3127. Definitions for chapter.
As used in this chapter—
(1) the terms “wire communication”, “electronic communication”, “electronic communication service” and
“contents” have the meanings set forth for such terms in section 2510 of this title;
(2) the term “court of competent jurisdiction” means—
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(A) any district court of the United States (including a magistrate judge of such a court) or any
United States court of appeals that (i) has jurisdiction over the offense being investigated;
(ii) is in or for a district in which the provider of a wire or electronic communication service is
located;
(iii) is in or for a district in which a landlord, custodian, or other person subject to subsections (a) or
(b) of section 3124 of this title is located; or
(iv) is acting on a request for foreign assistance pursuant to section 3512 of this title; or
(B) a court of general criminal jurisdiction of a State authorized by the law of that State to enter orders
authorizing the use of a pen register or a trap and trace device;
(3) the term “pen register” means a device or process which records or decodes or other dialing, routing,
addressing, and signaling information reasonably likely to identify the source of a wire or electronic
communication, provided, however, that such information shall not include the contents of any
communication, but such term does not include any device or process used by a provider or customer of a
wire or electronic communication service for billing, or recording as an incident to billing, for
communications services provided by such provider or any device or process used by a provider or
customer of a wire communication service for cost accounting or other like purposes in the ordinary course
of its business;
(4) the term “trap and trace device” means a device or process which captures the incoming electronic or
other impulses which identify the originating number or other dialing, routing, addressing, and signaling
information reasonably likely to identify the source of a wire or electronic communication, provided,
however, that such information shall not include the contents of any communication;
(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.
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Appendix A. State Statutes Outlawing the
Interception of Wire(w), Oral(o) and Electronic
Communications(e)
Alabama: Ala.Code §§13A-11-30 to 13A-11-37(w/o);
Alaska: Alaska Stat. §§42.20.300 to 42.20.390 (w/o/e);
Arizona: Ariz.Rev.Stat.Ann. §§13-3001 to 13-3009
(w/o/e);
Arkansas: Ark.Code §§5-60-120, 23-17-107(w/o/e);
California: Cal.Penal Code §§631(w), 632(o), 632.7(e);
Colorado: Colo.Rev.Stat. §§18-9-301 to 18-9305(w/o/e);
New Jersey: N.J.Stat.Ann. §§2A:156A-2, 2A:156A3(w/o/e);
New Mexico: N.M.Stat.Ann. §30-12-1(w);
New York: N.Y.Penal Law §§250.00, 250.05(w/o/e);
North Carolina: N.C.Gen.Stat. §§15A-286, 15A287(w/o/e);
North Dakota: N.D.Cent.Code §§12.1-15-02, 12.1-15-04
(w/o);
Connecticut: Conn.Gen.Stat.Ann. §§53a-187 to 53a189, 54-41t (w/o);
Delaware: Del.Code tit.11 §§2401, 2402(w/o/e);
Florida: Fla.Stat.Ann. §§934.02, 934.03(w/o/e);
Georgia: Ga.Code §16-11-62 (w/o/e);
Hawaii: Hawaii Rev.Stat. §§711-1111, 803-41, 80342(w/o/e);
Idaho: Idaho Code §§18-6701, 18-6702(w/o/e);
Ohio: Ohio Rev.Code §§2933.51, 2933.52 (w/o/e);
Oklahoma: Okla.Stat.Ann. tit.13 §§176.2, 176.3 (w/o/e);
Oregon: Ore.Rev.Stat. §§165.535 to 165.545 (w/o/e);
Pennsylvania: Pa.Stat.Ann. tit.18 §§5702, 5703 (w/o/e);
Rhode Island: R.I.Gen.Laws §§11-35-21(w/o/e);
South Carolina: S.C. Code Ann. §§16-17-470, 17-30-10
to 17-30-20 (w/o/e);
Illinois: Ill.Comp.Stat.Ann. ch.720 §§5/14-1 to 5/14-3
(w/o/e);
South Dakota: S.D.Cod.Laws §§23A-35A-1, 23A-35A-20
(w/o);
Tennessee: Tenn.Code Ann. §39-13-601(w/o/e);
Texas: Tex.Penal Code. §16.02; Tex. Crim. Pro. Code art.
18.20 (w/o/e);
Utah: Utah Code Ann. §§76-9-405, 77-23a-3, 77-23a-4
(w/o/e);
Indiana: Ind.Code Ann. §§35-33.5-2-1, 35-33.5-56(w/o/e);
Iowa: Iowa Code Ann. §§272.8, 808B.2(w/o/e);
Kansas: Kan.Stat.Ann. §21-6101(w/o);
Kentucky: Ky.Rev.Stat. §§526.010, 526.020(w/o);
Louisiana: La.Rev.Stat.Ann. §§15:1302, 15:1303
(w/o/e);
Maine: Me.Rev.Stat.Ann. tit. 15 §§709, 710(w/o);
Maryland: Md.Cts. & Jud.Pro.Code Ann. §§10-401, 10402(w/o/e);
Massachusetts: Mass.Gen.Laws Ann. ch.272 §99
(w/o);
Michigan: Mich.Comp.Laws Ann. §§750.539a, to
750.540(w/o/e);
Minnesota: Minn.Stat.Ann. §§626A.01, 626A.02
(w/o/e);
Virginia: Va.Code §§19.2-61, 19.2-62(w/o/e);
Washington: Wash.Rev.Code Ann.§9.73.030 (w/o);
West Virginia: W.Va.Code §§62-1D-2, 62-1D-3(w/o/e);
Wisconsin: Wis.Stat.Ann. §§968.27, 968.31(w/o/e);
Wyoming: Wyo.Stat. §§7-3-701, 7-3-702(w/o/e);
District of Columbia: D.C.Code §§23-541, 23-542(w/o).
Missouri: Mo.Ann.Stat. §§542.400 to 542.402 (w/o/e);
Montana: Mont.Code Ann. §45-8-213(w/o/e);
Nebraska: Neb.Rev.Stat. §§86-271 to 86-290 (w/o/e);
Nevada: Nev.Rev.Stat. §§200.610, 200.620(w),
200.650(o);
New Hampshire: N.H.Rev.Stat.Ann. §§570-A:1, 570A:2 (w/o);
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Appendix B. Consent Interceptions Under State Law
Alabama: Ala.Code §13A-11-30 (one party consent);
Alaska: Alaska Stat. §§42.20.300 to 42.20.320 (one party
consent);
Arizona: Ariz.Rev.Stat.Ann. §13-3005 (one party consent);
Arkansas: Ark.Code §5-60-120 (one party consent);
California: Cal. Penal Code §§631, 632 (one party consent for
police; all party consent otherwise), 632.7 (all party consent);
Colorado: Colo.Rev.Stat. §§18-9-303, 18-9-304 (one party
consent);
Connecticut: Conn.Gen.Stat.Ann. §§53a-187, 53a-188 (criminal
proscription: one party consent); §52-570d (civil liability: all party
consent except for police);
Delaware: Del.Code tit.11 §2402 (one party consent);
Florida: Fla.Stat.Ann. §934.03 (one party consent for the police;
all party consent for others);
New Jersey: N.J.Stat.Ann. §§2A:156A-4 (one
party consent);
New Mexico: N.M.Stat.Ann. §§30-12-1 (one
party consent);
New York: N.Y.Penal Law §250.00 (one party
consent);
North Carolina: N.C.Gen.Stat. §15A-287 (one
party consent);
North Dakota: N.D.Cent.Code §§12.1-15-02
(one party consent);
Ohio: Ohio Rev.Code §2933.52 (one party
consent);
Georgia: Ga.Code §16-11-66 (one party consent);
Hawaii: Hawaii Rev.Stat. §§711-1111, 803-42 (one party consent);
Idaho: Idaho Code §18-6702 (one party consent);
Illinois: Ill.Comp.Stat.Ann. ch.720 §§5/14-2, 5/14-3 (all party
consent with law enforcement exceptions);
Indiana: Ind.Code Ann. §35-33.5-5-5 (one party consent ), Parker
v. State, 800 N.E.2d 574 (Ind.App. 2003);
Iowa: Iowa Code Ann. §808B.2 (one party consent);
Oklahoma: Okla.Stat.Ann. tit.13 §176.4 (one
party consent);
Oregon: Ore.Rev.Stat. §165.540 (one party
consent for wiretapping and all parties must
consent for other forms of electronic
eavesdropping);
Pennsylvania: Pa.Stat.Ann. tit.18 §5704 (one
party consent for the police; all parties consent
otherwise);
Rhode Island: R.I.Gen.Laws §§11-35-21 (one
party consent);
Kansas: Kan.Stat.Ann. §§21-6101 (one party consent);
Kentucky: Ky.Rev.Stat. §526.010 (one party consent);
Louisiana: La.Rev.Stat.Ann. §15:1303 (one party consent);
Maine: Me.Rev.Stat.Ann. tit. 15 §709 (one party consent);
Maryland: Md.Cts. & Jud.Pro.Code Ann. §10-402 (one party
consent);
Massachusetts: Mass.Gen.Laws Ann. ch.272 §99 (all parties must
consent, except in some law enforcement cases);
South Carolina: S.C. Code Ann. §17-30-30
(one party consent);
South Dakota: S.D.Comp.Laws §§23A-35A-20
(one party consent);
Tennessee: Tenn.Code Ann. §39-13-601 (one
party consent)
Texas: Tex.Penal Code §16.02 (one party
consent);
Utah: Utah Code Ann. §§77-23a-4 (one party
consent);
Virginia: Va.Code §19.2-62 (one party
consent);
Michigan: Mich.Comp.Laws Ann. §750.539c (proscription
regarding eavesdropping on oral conversation: all party consent,
except that the proscription does not apply to otherwise lawful
activities of police officers);
Minnesota: Minn.Stat.Ann. §626A.02 (one party consent);
Missouri: Mo.Ann.Stat. §542.402 (one party consent);
Washington: Wash.Rev.Code Ann. §9.73.030
(all parties must consent, except that one party
consent is sufficient in certain law enforcement
cases);
West Virginia: W.Va.Code §62-1D-3 (one
party consent);
Wisconsin: Wis.Stat.Ann. §968.31 (one party
consent);
Wyoming: Wyo.Stat. §7-3-702 (one party
consent);
Montana: Mont.Code Ann. §§45-8-213 (all party consent with an
exception for the performance of official duties);
Nebraska: Neb.Rev.Stat. §86-290 (one party consent);
Nevada: Nev.Rev.Stat. §§200.620, 200.650 (one party consent);
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Appendix C. Statutory Civil Liability for
Interceptions Under State Law
Arizona: Ariz.Rev.Stat.Ann. §12-731;
California: Cal. Penal Code §§637.2;
Colorado: Colo.Rev.Stat. §18-9-309.5;
Connecticut: Conn.Gen.Stat.Ann. §§54-41r, 52-570d;
Delaware: Del.Code tit.11 §2409;
Nevada: Nev.Rev.Stat. §200.690;
New Hampshire: N.H.Rev.Stat.Ann. §570-A:11;
New Jersey: N.J.Stat.Ann. §§2A:156A-24;
New Mexico: N.M.Stat.Ann. §§30-12-11;
North Carolina: N.C.Gen.Stat. §15A-296;
Florida: Fla.Stat.Ann. §§934.10, 934.27;
Hawaii: Hawaii Rev.Stat. §803-48;
Idaho: Idaho Code §18-6709;
Illinois: Ill.Comp.Stat.Ann. ch.720 §5/14-6;
Indiana: Ind.Code Ann. §35-33.5-5-4;
Ohio: Ohio Rev.Code §2933.65;
Oregon: Ore.Rev.Stat. §133.739;
Pennsylvania: Pa.Stat.Ann. tit.18 §§5725, 5747;
Rhode Island: R.I.Gen.Laws §12-5.1-13;
South Carolina: S.C. Code Ann. §17-30-135;
Iowa: Iowa Code Ann. §808B.8;
Kansas: Kan.Stat.Ann. §22-2518
Louisiana: La.Rev.Stat.Ann. §15:1312;
Maine: Me.Rev.Stat.Ann. ch.15 §711;
Maryland: Md.Cts. & Jud.Pro.Code Ann. §§10-410, 10-4A-08;
Tennessee: Tenn.Code Ann. §39-13-603;
Texas: Tex.Code Crim.Pro. art. 18.20;
Utah: Utah Code Ann. §§77-23a-11; 77-23b-8;
Virginia: Va.Code §19.2-69;
Washington: Wash.Rev.Code Ann. §9.73.060;
Massachusetts: Mass.Gen.Laws Ann. ch.272 §99;
Michigan: Mich.Comp.Laws Ann. §750.539h;
Minnesota: Minn.Stat.Ann. §§626A.02, 626A.13;
Nebraska: Neb.Rev.Stat. §86-297;
West Virginia: W.Va.Code §62-1D-12;
Wisconsin: Wis.Stat.Ann. §968.31;
Wyoming: Wyo.Stat. §7-3-710;
District of Columbia: D.C.Code §23-554.
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Appendix D. Court Authorized Interception Under
State Law
Alaska: Alaska Stats. §§12.37.010 to 12.37.900;
Arizona: Ariz.Rev.Stat.Ann. §§13-3010 to 13-3019;
California: Cal.Penal Code §629.50 to 629.98;
Colorado: Colo.Rev.Stat. §§16-15-101 to 16-15-104;
Connecticut: Conn.Gen.Stat.Ann. §§54-41a to 54-41u;
North Carolina: N.C.Gen.Stat. §§15A-286 to 15A-298;
North Dakota: N.D.Cent.Code §§29-29.2-01 to 2929.2-05;
Ohio: Ohio Rev.Code §§2933.51 to 2933.66;
Oklahoma: Okla.Stat.Ann. tit.13 §§176.1 to 176.14
Oregon: Ore.Rev.Stat. §§133.721 to 133.739;
Delaware: Del.Code tit.11 §§2401 to 2412;
Florida: Fla.Stat.Ann. §§934.02 to 934.43;
Georgia: Ga.Code §16-11-64 to 16-11-69;
Hawaii: Hawaii Rev.Stat. §§803-41 to 803-49;
Idaho: Idaho Code §§18-6701 to 18-6709; 6719 to 6725;
Pennsylvania: Pa.Stat.Ann. tit.18 §§5701 to 5728
Rhode Island: R.I.Gen.Laws §§12-5.1-1 to 12-5.1-16;
South Carolina: S.C. Code Ann. §§17-30-10 to 17-30145;
Illinois: Ill.Stat.Ann. ch.725 §§5/108A-1 to 108B-14;
Indiana:Ind.Code §§35-33.5-2-1 to 35-33.5-5-6;
Iowa: Iowa Code Ann. §§808B.3 to 808B.7;
Kansas: Kan.Stat.Ann. §§22-2514 to 22-2519;
Louisiana: La.Rev.Stat.Ann. §§15:1301 to 15:1316;
Maryland: Md.Cts. & Jud.Pro.Code Ann. §§10-401 to 10410;
South Dakota: S.D.Cod.Laws §§23A-35A-1 to 23A35A-34;
Tennessee: Tenn.Code Ann. §§40-6-301 to 40-6-311;
Texas: Tex.Crim.Pro. Code. art. 18.20;
Utah: Utah Code Ann. §§77-23a-1 to 77-23a-16;
Virginia: Va.Code §§19.2-61 to 19.2-70.3;
Massachusetts: Mass.Gen.Laws Ann. ch.272 §99;
Minnesota: Minn.Stat.Ann. §§626A.01 to 626.41;
Missouri: Mo.Ann.Stat. §§542.400 to 542.422;
Nebraska: Neb.Rev.Stat. §§86-271 to 86-2,115;
Washington: Wash.Rev.Code Ann. §§9.73.040 to
9.73.250;
West Virginia: W.Va.Code §§62-1D-1 to 62-1D-16;
Wisconsin: Wis.Stat.Ann. §§968.27 to 968.33;
Wyoming: Wyo.Stat. §§7-3-701 to 7-3-712;
District of Columbia: D.C.Code §§23-541 to 23-556.
Nevada: Nev.Rev.Stat. §§179.410 to 179.515;
New Hampshire: N.H.Rev.Stat.Ann. §§570-A:1 to 570A:9;
New Jersey: N.J.Stat.Ann. §§2A:156A-8 to 2A:156A-26;
New Mexico: N.M.Stat.Ann. §§30-12-1 to 30-12-11;
New York: N.Y.Crim.Pro. Law §§700.05 to 700.70;
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Appendix E. State Statutes Regulating Stored
Electronic Communications (SE), Pen Registers (PR)
and Trap and Trace Devices (T)
Alabama: Ala.Code §15-5-40 (SE; PR&T);
Alaska: Alaska Stats. §§12.37.200 (PR&T), 12.37.300(SE);
Arizona: Ariz.Rev.Stat.Ann. §§13-3016 (SE); 13-3005, 133017 (PR&T);
Arkansas: Ark. Code Ann. §5-60-120(g) (PR&T);
Colorado: Colo. Rev. Stat. §18-9-305 (PR&T);
Delaware: Del.Code tit.11 §§2401; 2421 to 2427 (SE); 2430
to 2434 (PR&T);
New Jersey; N.J.Stat.Ann. §§2A:156A-27 to
2A:156A-34 (SE);
New York: N.Y.Crim.Pro.Law §§705.00 to 705.35
(PR&T);
North Carolina: N.C.Gen.Stat. §§15A-260 to 15A264 (PR&T);
North Dakota: N.D.Cent.Code §§29-29.3-01 to
29-29.3-05 (PR&T);
Florida: Fla.Stat.Ann. §§934.02; 934.21 to 934.28 (SE);
934.32 to 934.34(PR&T);
Georgia: Ga.Code Ann. §§16-11-60 to 16-11-64.2 (PR &T);
§16-9-109 (SE);
Hawaii: Hawaii Rev.Stat. §§803-41; 803-44.5, 803-44.6
(PR&T), 803-47.5 to 803.47.9 (SE);
Idaho: Idaho Code §§18-6719 to 18-6725 (PR&T);
Iowa: Iowa Code Ann. §§808B.1, 808B.10 to 808B.14
(PR&T);
Ohio: Ohio Rev.Code §2933.76 (PR&T);
Oklahoma: Okla.Stat.Ann. tit.13 §177.1 to 177.5
(PR&T);
Oregon: Ore.Rev.Stat. §§165.657 to 165.673
(PR&T);
Pennsylvania: Pa.Stat.Ann. tit.18 §§5741 to 5749
(SE), 5771 to 5775 (PR&T);
Rhode Island; R.I.Gen.Laws §§12-5.2-1 to 12-5.2-5
(PR&T);
Kansas: Kan.Stat.Ann. §§22-2525 to 22-2529 (PR&T);
Louisiana: La.Rev.Stat.Ann. §§15:1302, 15:1313 to 15:1316
(PR&T);
Maryland: Md.Cts. & Jud.Pro.Code Ann. §§10-4A-01 to 104A-08 (SE), 10-4B-01 to 10-4B-05 (PR&T);
Minnesota: Minn.Stat.Ann. §§626A.01; 626A.26 to 626A.34;
(SE), 626A.35 to 636A.391 (PR&T);
Mississippi: Miss.Code §41-29-701(PR&T);
South Carolina: S.C.Code §§17-29-10 to 17-29-50,
17-30-45 to 17-30-50 (PR&T);
South Dakota: S.D.Cod.Laws §§23A-35A-22 to
23A-35A-34 (PR&T);
Tennessee: Tenn.Code Ann. §40-6-311 (PR&T);
Texas: Tex.Code Crim.Pro. art. 18.20, 18.21; Tex.
Penal Code §§16.03, 16.04 (SE, PR&T);
Utah: Utah Code Ann. §§77-23a-13 to 77-23a-15
(PR&T); 77-23b-1 to 77-23b-9(SE);
Missouri: Mo.Ann.Stat. §542.408 (PR);
Montana: Mont.Code Ann. §§46-4-401 to 46-4-405 (PR&T);
Nebraska: Neb.Rev.Stat. §§86-279, 86-2,104 to 86-2,110
(SE); 86-284, 86-287, 86-298 to 86-2,101 (PR&T);
Nevada: Nev.Rev.Stat. §§179.530 (PR&T), 205.492 to
205.513(SE);
New Hampshire: N.H.Rev.Stat.Ann. §§570-B:1 to 570-B:7
(PR&T);
Virginia: Va.Code §§19.2-70.1, 19.2-70.2 (PR&T),
19.2-70.3 (SE);
Washington: Wash.Rev.Code Ann. §9.73.260
(PR&T);
West Virginia: W.Va.Code §§62-1D-2, 62-1D-10
(PR&T), 62-1G-2(SE);
Wisconsin: Wis.Stat.Ann. §968.30 to 968.37
(PR&T);
Wyoming: Wyo.Stat. §§7-3-801 to 7-3-806 (PR&T).
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Appendix F. State Computer Crime Statutes
Alabama: Ala.Code §§13A-8-100 to 13A-8-103;
Alaska: Alaska Stat. §11.46.740;
Arizona: Ariz.Rev.Stat.Ann. §§13-2316 to 132316.02;
Arkansas: Ark.Code §§5-41-101 to 5-41-206;
California: Cal.Penal Code §502;
Nevada: Nev.Rev.Stat. §§205.473 to 205.513;
New Hampshire: N.H.Rev.Stat.Ann. §638:16 to 638:19;
New Jersey: N.J.Stat.Ann. §§2C:20-2, 2C:20-23 to 2C:20-34;
Colorado: Colo.Rev.Stat. §§18-5.5-101, 18-5.5102;
Connecticut: Conn.Gen.Stat.Ann. §§53a-250 to
53a-261;
Delaware: Del.Code tit.11 §§931 to 941;
Florida: Fla.Stat.Ann. §§815.01 to 815.07;
Georgia: Ga.Code §§16-9-92 to 16-9-94;
New Mexico: N.M.Stat.Ann. §§30-45-1 to 30-45-7;
New York: N.Y.Penal Law §§156.00 to 156.50;
North Carolina: N.C.Gen.Stat. §§14-453 to 14-458;
North Dakota: N.D.Cent.Code §12.1-06.1-08;
Ohio: Ohio Rev.Code §§2909.01, 2909.07, 2913.01 to 2913.04,
2913.421;
Hawaii: Hawaii Rev.Stat. §708-890 to 708-895.7;
Idaho: Idaho Code §§18-2201, 18-2202;
Illinois: Ill.Comp.Stat.Ann. ch.720 §§5/17-50 to
5/17-55;
Indiana: Ind.Code §§35-43-1-4, 35-43-2-3;
Iowa: Iowa Code Ann. §716.6B;
Oklahoma: Okla.Stat.Ann. tit.21 §§1951 to 1959;
Oregon: Ore.Rev.Stat. §164.377;
Pennsylvania: Pa.Stat.Ann. tit.18 §7611;
Rhode Island: R.I.Gen.Laws §§11-52-1 to 11-52-8;
South Carolina: S.C.Code §§16-16-10 to 16-16-40, 26-6-210;
Kansas: Kan.Stat.Ann. §21-3755;
Kentucky: Ky.Rev.Stat. §§434.840 to 434.860;
Louisiana: La.Rev.Stat.Ann. §§14:73.1 to 14:73.8;
Maine: Me.Rev.Stat.Ann. tit. 17-A §§431 to 435;
Maryland: Md.Code Ann., Crim. Law. §7-302;
Massachusetts: Mass.Gen.Laws Ann. ch.266
§120F;
South Dakota: S.D.Cod.Laws §§43-43B-1 to 43-43B-8;
Tennessee: Tenn.Code Ann. §§39-14-601 to 39-14-605;
Texas: Tex.Penal Code. §§33.01 to 33.07;
Utah: Utah Code Ann. §§76-6-702 to 76-6-705;
Michigan: Mich.Comp.Laws Ann. §§752.791 to
752.797;
Minnesota: Minn.Stat.Ann. §§609.87 to 609.893;
Mississippi: Miss.Code §§97-45-1 to 97-45-33;
Missouri: Mo.Ann.Stat. §§569.095 to 569.099;
Montana: Mont.Code Ann. §§45-6-310, 45-6-311;
Nebraska: Neb.Rev.Stat. §§28-1341 to 28-1348;
Vermont: Vt. Stat. Ann. tit. 13, §§4101 to 4107;
Virginia: Va.Code §§18.2-152.1 to 18.2-152.15, 19.2-249.2;
Washington: Wash.Rev.Code Ann. §§9A.52.110 to 9A.52.130;
West Virginia: W.Va.Code §§61-3C-1 to 61-3C-21;
Wisconsin: Wis.Stat.Ann. §943.70;
Wyoming: Wyo.Stat. §§6-3-501 to 6-3-505.
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
[email protected], 7-6968
Congressional Research Service
86
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