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PUBLIC LAW 99-508--OCT 21, 1986
ELECTRONIC COMMUNICATIONS PRIVACY
ACT OF 1986
100 STAT. 1848 PUBLIC LAW 99-508--OCT. 21, 1986
PUBLIC LAW 99-508
99th Congress
An Act
Oct. 21, 1986 To amend title 18, United States Code,
with respect to the interception of
certain communications, other forms of
surveillance, and for other purposes.
Electronic Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled,
1986 SECTION 1.SHORT TITLE.
18 USC 2510
note. This Act may be cited as the"Electronic
Communications Privacy Act of 1986".
TITLE I--INTERCEPTION OF COMMUNICATIONS AND
RELATED MATTERS
SEC. 101. FEDERAL PENALTIES FOR THE
INTERCEPTION OF COMMUNICATIONS.
(a) DEFINITIONS--(1) Section 2510(1) of
title 18, United States Code is amended--
(A) by striking out "any communications"
and inserting "any aural transfer" in lieu
thereof:
(B) by inserting "(including the use of
such connection in a switching station)"
after "reception".
(C) by striking out "as a common
carrier" and
(D) by inserting before the semicolon at
the end the following: "or communications
affecting interstate or foreign commerce and
such term includes any electronic storage of
such communication, but such term does not
include the radio portion of a cordless
telephone communication that is transmitted
between the cordless telephone handset and
the base unit".
(2)Section 2510(2) of title 18, United
States Code, is amended by inserting before
the semicolon at the end the following:
",but such term does not include any
electronic communication".
(3)Section 2510(4) of title 18, United
States Code, is amended---
(A)by inserting "or other" after
"aural";and
(B)by inserting ",electronic," after
"wire".
(4)Section 2510(5) of title 18, United
States Code, is amended in clause (a)(i) by
inserting before the semicolon the
following: "or furnished by such subscriber
or user for connection to the facilities of
such service and used in the ordinary
course of its business".
(5)Section 2510(8) of title 18, United
States Code, is amended by striking out
"identify of the parties to such
communication or the existence,".
(6)Section 2510 of title 18, United States
Code, is amended---
(A)by striking out "and" at the end of
paragraph (10);
(B)by striking out the period at the
end of paragraph (11) and inserting
a semicolon in lieu thereof; and
(C)by adding at the end the following:
"(12)'electronic communication' means
any transfer of signs,signals,
100 STAT. 1849 PUBLIC LAW 99-508---OCT. 21, 1986
writing, images, sounds, data, or
intelligence of any nature
transmitted in whole or in part by
a wire, radio, electromagnetic,
photoelectronic or photooptical
system that affects interstate or
foreign commerce, but does not
include---
"(A)the radio portion of a
cordless telephone communication that
is transmitted between the cordless
telephone handset and the base unit;
"(B)any wire or oral
communication;
"(C)any communication made
through a tone-only paging device;
or
"(D)any communication from a
18 USC 3117. tracking device (as defined in
section 3117 of this title);
"(13) 'user' means any person or
entity who---
"(A)uses an electronic
communication service;and
"(B)is duly authorized by the
provider of such service to engage in
such use;
"(14) 'electronic communications
system' means any wire, radio,
electromagnetic, photooptical or
photoelectronic facilities for the
transmission of electronic
communications, and any computer
facilities or related electronic
equipment for the electronic storage
of such communications;
"(15) 'electronic communication
service' means any service which
provides to users thereof the
ability to send or receive wire or
electronic communications;
"(16) 'readily accessible to the
general public' means, with respect
to a radio communication, that such
communication is not---
"(A)scrambled or encrypted;
"(B)transmitted using modulation
techniques whose essential parameters
have been withheld from the public
with the intention of preserving the
privacy of such communication;
"(C)carried on a subcarrier or
other signal subsidiary to a radio
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 purpose of
backup protection of such
communication; and
"(18)'aural transfer' means a transfer
containing the human voice at any
point between and including the point
of origin and the point of reception".
(b)Exceptions With Respect to Electronic
Communications.--
(1) Section 2511(2)(a)(ii) of title 18,
United States Code is amended--
100 STAT. 1850 PUBLIC LAW 99-508--OCT 21,1986
(A) by striking out "violation of
this subparagraph by a communication
common carrier or an officer,
employee, or agent thereof" and
inserting in lieu thereof "such
disclosure";
(B) by striking out "the carrier
and inserting in lieu thereof "such
person"; and
(C) by striking out "an order or
certification under this subparagraph"
and inserting in lieu thereof "a court
order or certification under this
chapter".
(2)Section 2511(2)(d) of title 18,
United States Code, is amended by
striking out "or for the purpose of
committing any other injurious act".
(3)Section 2511(2)(f) of title 18,
United States Code, is amended--
(A) by inserting "or chapter 121"
after "this chapter"; and
(B) by striking out "by" the second
place it appears and inserting in lieu
thereof ", or foreign intelligence
activities conducted in accordance with
otherwise applicable Federal law
involving a foreign electronic
communications system, utilizing".
(4)Section 2511(2) of title 18, United
States Code, is amended by adding at the
end the following:
"(g)it shall not be unlawful under this
chapter or chapter 121 this title for
Post p. 1860 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
47 USC 553. of the Communications Act of 1934;or
"(II) is excepted from the
application of section 705(a) of the
47 USC 605. 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
100 STAT. 1851 PUBLIC LAW 99-508--OCT. 21, 1986
"(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
Post,p.1868. 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.".
(c)TECHNICAL AN CONFORMING
AMENDMENTS.--(1)Chapter 119 of title 18,
18 USC 2510 et United States Code is amended
seq. (A)in each of sections
2510(5),2510(8),2510(11), and 2511
through 2519 (except sections 2515,
2516(1) and 2518(10)),by striking out
"wire or oral" each place it appears
(including in any section heading) and
inserting "wire, oral, or electronic" in
lieu thereof; and
(B)in section 2511(2)(b), by
inserting "or electronic" after "wire".
(2)The heading of chapter 119 of title
18, United States Code, is amended by
inserting "and electronic
communications" after "wire".
(3)The item relating to chapter 119 in
the table of chapters at the beginning
of part I of title 18 of the United
States Code is amended by inserting "and
electronic communications" after "Wire".
(4)Section 2510(5)(a) of title 18,
United States Code, is amended by
striking out "communications common
carrier" and inserting "provider of wire
or electronic communication service" in
lieu thereof.
(5)Section 2511(2)(a)(i) of title 18,
United States Code, is amended--
(A)by striking out "any communication
common carrier" and inserting "a
provider of wire or electronic
communication service" in lieu thereof;
(B)by striking out "of the carrier of
such communication" and inserting "of
the provider of that service" in lieu
thereof; and
(C)by striking out ": Provided, That
said communication common carriers",
except that a provider of wire
communication service to the public" in
lieu thereof.
(6)Section 2511(2)(a)(ii) of title 18,
United States Code, is amended--
(A)by striking out "communications
common carriers" and inserting
"providers of wire or electronic
communication service" in lieu thereof;
(B)by striking out "communication
common carrier" each place it appears
and inserting "provider of wire or
electronic communication service" in
lieu thereof; and
(C)by striking out "if the common
carrier" and inserting "if such
provider" in lieu thereof.
(7)Section 2512(2)(a) of title 18,
United Code, is amended--
(A)by striking out a communications
common carrier" the first place it
appears and inserting "a provider of
wire or electronic communication
service" in lieu thereof; and
(B)by striking out "a communications
common carrier" the second place it
appears and inserting "such a provider"
in lieu thereof; and
100 STAT. 1852 PUBLIC LAW 99-508--OCT. 21, 1986
(C)by striking out "communications
common carrier's business" and
inserting "business of providing that
wire or electronic communication
service" in lieu thereof.
(8)Section 2518(4) of title 18, United
States Code, is amended--
(A)by striking out "communication
common carrier" in both places it
appears and inserting "provider of wire
or electronic communications service"
in lieu thereof; and
(B)by striking out "carrier" and
inserting in lieu thereof "service
provider".
(d) PENALTIES MODIFICATION.--(1) Section
2511(1) of title 18, United States
Code, is amended by striking out "shall
be" and all that follows through "or
both" and inserting in lieu thereof
"shall be punished as provided in
subsection (4) or shall be subject to
suit as provided in subsection (5)".
(2)Section 2511 of title 18, United
States Code, is amended by adding after
the material added by section 102 the
following:
"(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 the
title or imprisoned not more than five
years, or both.
"(b) If the offense is a first offense
under paragraph (a) of this subsection
and is not for a tortious or illegal
purpose or for purposes of direct or
indirect commercial advantage or
private commercial gain, and the wire
or electronic communication with
respect to which the offense under
paragraph (a) is a radio communication
that is not scrambled or encrypted,
then--
(C)by striking out "an order or
certification under this subparagraph"
and inserting in lieu thereof "a court
order or certification under this
chapter".
(2)Section 2511(2)(d) of title 18,
United States Code, is amended by
striking out "or for the purpose of
committing any other injurious act".
(3)Section 2511(2)(f) of title 18,
United States Code, is amended--
"(i) if the communication is not the
radio portion of a cellular telephone
communication, a public land mobile
radio service communication or a
paging service communication, and the
conduct is not that described in
subsection (5), the offender shall be
fined under this title or imprisoned
not more than one year. or both;and
"(ii)if the communication is the
radio portion of a cellular telephone
communication, a public land mobile
radio service communication or a
paging service communication, the
offender shall be fined not more than
$500.
"(c) Conduct otherwise an offense under
this subsection that consists of or
relates to the interception of a
satellite transmission that is not
encrypted or scrambled and that is
transmitted
"(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.
"(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
100 STAT. 1853 PUBLIC LAW 99-508--OCT.21,1986
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.
"(i)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
Infra. 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
(i)(A), and shall impose a civil fine
of not less than $500 for each
violation of such an injunction.".
(e) EXCLUSIVITY OF REMEDIES WITH
RESPECT TO ELECTRONIC
COMMUNICATIONS--Section 2518(10) of
title 18, United States Code, is
amended by adding at the end the
following:
(c)The remedies and sanctions
described in this chapter with respect
to the interception of electronic
communications are the only judicial
remedies and sanctions for
nonconstitutional violations of this
chapter involving such communications".
(f)STATE OF MIND.--Paragraphs
(a),(b),(c), and (d) of subsection (1)
of section 2511 of title 18, United
States Code, are amended by striking
out "willfully" and inserting in lieu
thereof"intentionally".
(2)Subsection (1) of section 2512 of
title 18, United States Code, is
amended in the matter before paragraph
(a) by striking out "willfully" and
inserting in lieu thereof
"intentionally".
SEC. 102. REQUIREMENTS FOR CERTAIN DISCLOSURES.
Section 2511 of title 18, United
States Code, is amended by adding at
the end of the following:
"(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 communications
to its destination; or
"(iv) which were inadvertently
obtained by the service provider and
which appear to pertain to the
commission of a crime, if such
divulgence is made to a law
enforcement agency.".
SEC. 103 RECOVERY OF CIVIL DAMAGES.
Section 2520 of title 18, United States Code, is amended
to read as follows:
100 stat. 1854 PUBLIC LAW 99-508--OCT. 21, 1986
"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 be in a civil action recover
from the person or entity which engaged
in that violation such relief as may be
appropriate.
"(b)RELIEF.--In an action under this
section, appropriate relief includes--
"(1)such preliminary and other
equitable or declaratory relief 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 advantages 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) 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".
100 STAT 1855 PUBLIC LAW 99-508 OCT.21, 1986
SEC. 104. CERTAIN APPROVALS BY JUSTICE DEPARTMENT
OFFICIALS.
Section 2516(1) of title 18 of the
United States Code is amended by
striking out "or any Assistant Attorney
General" and inserting in lieu thereof
"any Assistant Attorney General, any
acting Assistant Attorney General, or
any Deputy Assistant Attorney General
in the Criminal Division".
SEC. 105. ADDITION OF OFFENSES TO CRIMES FOR WHICH
INTERCEPTION IS AUTHORIZED.
(a) WIRE AND ORAL
INTERCEPTIONS,--Section 2516(1) of title 18 of the United
States Code is amended--
(1)in paragraph (c)---
(A) by inserting "section 751
(relating to escape)," after "wagering
information),";
(B) by striking out "2314" and
inserting "2312,2313,2314," in lieu
thereof;
Motor vehicles. (C) by inserting "the second
Aircraft and section 2320 (relating to trafficking in
air carriers. certain motor vehicles or motor vehicle
parts), section 1203 (relating to
hostage taking), section 1029 (relating
to fraud and related activity in
connection with access devices), section
3146 (relating to penalty for failure to
appear), section 3521(b)(3) (relating to
witness relocation and assistance),
section 32 (relating to destruction of
aircraft or aircraft facilities)," after
"stolen property),";
(D) by inserting "section 1952A
(relating to use of interstate commerce
facilities in the commission of murder
for hire), section 1952B (relating to
violent crimes in aid of racketeering
activity). after "1952 (interstate and
foreign travel or transportation in aid
of racketeering enterprises),";
Energy. (E) by inserting ",section 115
Mail. (relating to threatening or retaliating
Fraud. against a Federal official), the section
in chapter 65 relating to destruction of
an energy facility, and section 1341
(relating to mail fraud)," after
"section 1963 (violations with respect
to racketeer influenced and corrupt
organizations)"; and
(F) by--
Hazardous (i) striking out "or" before
materials. "section 351" and inserting in lieu
Motor vehicles. thereof a comma; and
(ii) inserting before the
semicolon at the end thereof the
following: ", section 831 (relating to
prohibited transactions involving
nuclear materials), section 33 (relating
to destruction of motor vehicles or
motor vehicle facilities), or section
1992 relating to wrecking trains)";
(2)by striking out "or" at the end of
paragraph (g);
(3)by inserting after paragraph (g) the
following:
"(h) any felony violation of
sections 2511 and 2512 (relating to
interception and disclosure of certain
communications and to certain
intercepting devices) of this title;
Natural gas. "(i) any violation of section
1679a(c)(2) (relating to destruction of
a natural gas pipeline) or subsection
Aircraft and air (i) or (n) of section 1472 (relating to
carriers. aircraft privacy) of title 49, of the
United States Code;
"(j) any criminal violation of
22 USC 2751 section 2778 of title 22 (relating to
note. the Arms Export Control Act); or ";
"(k) the location of any fugitive
from justice from an offense described
in this section;
100 STAT. 1856 PUBLIC LAW 99-508--OCT 21, 1986
(4)by redesignating paragraph (h)
as paragraph (1); and
(5)in paragraph (a) by--
Hazardous (A) inserting after "Atomic
materials Energy Act of 1954)," the following:
"section 2284 of title 42 of the United
States Code (relating to sabotage of
nuclear facilities or fuel),";
(B) striking out "or" after
"relating to treason),"; and
18 USC 1361 et (C) inserting before the
seq. semicolon at the end thereof the
18 USC 2271 et following chapter 65 (relating to
seq. malicious mischief), chapter 111
(relating to destruction of vessels), or
chapter 81 (relating to piracy)".
Vessels. (b)INTERCEPTION OF ELECTRONIC
18 USC 1651 et COMMUNICATIONS.--Section 2516 of title
seq. 18 of the United States Code is amended
by adding at the end the following:
"(3)Any attorney for the Government (as
18 USC app. such term is defined for the purpose 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.".
SEC. 106. APPLICATIONS, ORDERS, AND IMPLEMENTATION OF
ORDERS.
(a) PLACE OF AUTHORIZED INTERCEPTION.--
Section 2518(3) of title 18 of the
United States Code is amended by
inserting "(and outside that jurisdiction
but within the United States in the case
of a mobile interception device
authorized by a Federal court within
such jurisdiction)" after "within the
territorial jurisdiction of the court in
which the judge is sitting".
(b)REIMBURSEMENT FOR ASSISTANCE--Section
2518(4) of title 18 of the United States
Code is amended by striking out "at the
prevailing rates" and inserting in lieu
thereof "for reasonable expenses
incurred in providing such facilities or
assistance".
(c)COMMENCEMENT OF THIRTY-DAY PERIOD AND
POSTPONEMENT OF MINIMIZATION.--Section
2518(5) of title 18 of the United States
Code is amended--
(1)by inserting after the first
sentence the following: "Such thirty-day
period begins on the earlier of the day
on which the investigative or law
enforcement officer first begins to
conduct an interception under the order
or ten days after the order is
entered.";and
(2)by adding at the end the
following: "In the event the intercepted
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.".
(d)ALTERNATIVE TO DESIGNATING SPECIFIC
FACILITIES FROM WHICH COMMUNICATIONS ARE
TO BE INTERCEPTED.--(1) Section
2518(1)(b)(ii) of title 18 of the United
States Code is amended by inserting
"except as provided in subsection (11),"
before a "a particular description".
100 STAT. 1857 PUBLIC LAW 99-508--OCT.21, 1986
(2) Section 2518(3)(d) of title 18 of
the United States Code is amended by
inserting "except as provided in
subsection (11)," before "there is".
(3) Section 2518 of title 18 of the
United States Code is amended by adding
at the end the following:
"(11) The requirements of subsections
(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 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 of a purpose, on the part of
that person, to thwart interception by
changing facilities;and
"(iii) the judge finds that such
purpose has been adequately shown.
"(12) An interception of a communication
under an order with respect to which the
requirements of subsections (1)(b)(ii)
and (3)(d) of this section do not apply
by reason of subsection (11) shall not
begin until the facilities from which,
or the place where, the communication is
to be intercepted is ascertained by the
person implementing the interception
order. A provider of wire or electronic
communications service that has received
an order as provided for in subsection
(11)(b) may move the court to modify or
quash the order on the ground that its
assistance with respect to the
interception cannot be performed in a
timely or reasonable fashion. The
court, upon notice to the government,
shall decide such a motion
expeditiously.".
(4)Section 2519(1)(b) of title 18,
United States Code, is amended by
inserting "(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)" after "applied
for",
100 STAT. 1858 PUBLIC LAW 99-508--OCT. 21, 1986
SEC. 107. INTELLIGENCE ACTIVITIES.
18 USC 2510 (a) IN GENERAL.--Nothing in this act or
note. the amendments made by this Act
constitutes authority for the conduct of
any intelligence activity.
(b) CERTAIN ACTIVITIES UNDER PROCEDURES
APPROVED BY THE ATTORNEY
GENERAL.--Nothing in chapter 119 or
18 USC 2510 et chapter 121 of title 18, United States
seq.; Code, shall effect the conduct, by
post,p. 1860. officers or employees of the United
States Government in accordance with
other applicable Federal law, under
procedures approved by the Attorney
General of activities intended to--
(1) intercept encrypted or other
official communications of United States
executive branch entitles or United
States Government contractors for
communications security purposes;
(2) intercept radio communications
transmitted between or among foreign
powers or agents of a foreign power as
50 USC 1801 defined by the Foreign Intelligence
note. Surveillance Act of 1978; or
(3) access an electronic communications
system used exclusively by a foreign
power or agent of a foreign power as
defined by the Foreign Intelligence
Surveillance Act of 1978.
Sec. 108. MOBILE TRACKING DEVICES.
(a) IN GENERAL.--Chapter 205 of title
18, United States Code, is amended by
adding at the end the following:
18 USC 3117. "3117. Mobile tracking devices
"(a) IN GENERAL.--If a court is
empowered to issue a warrant or other
order for the installation of a mobile
tracking device, such order may
authorize the use of that device within
the jurisdiction of the court, and
outside that jurisdiction if the device
is installed in that jurisdiction..
"(b) DEFINITION.--As used in this
section, the term "tracking device
means an electronic or mechanical
device which permits the tracking of
the movement of a person or object.".
(b)CLERICAL AMENDMENT.--The table of
contents at the beginning of chapter
205 of title 18, United States Code,
is amended by adding at the end of the
following:
"3117. Mobile tracking devices.".
SEC.109. WARNING SUBJECT OF SURVEILLANCE.
Section 2232 of title 18, United States
Code, is amended--
(1)by inserting "(a) PHYSICAL
INTERFERENCE WITH SEARCH.--"
before "Whoever" the first place it
appears;
(2)by inserting "(b) NOTICE OF
SEARCH.--" before "Whoever" the second
place it appears; and
(3)by adding at the end the following:
Law (c) NOTICE OF CERTAIN ELECTRONIC
enforcement SURVEILLANCE.--Whoever, having
and crime. knowledge that a Federal investigative
18 USC 2510 et or law enforcement officer has been
seq.; authorized or has applied for
post,p. 1859. authorization under chapter 119 to
intercept a wire, oral, or electronic
communication, in order to obstruct,
impede, or prevent such interception,
gives notice or attempts to give notice
of the possible interception to any
person shall be fined under this title
or imprisoned not more than five years,
or both.
"Whoever, having knowledge that a
Federal officer has been authorized or
has applied for authorization to
conduct electronic surveillance under
the Foreign Intelligence Surveillance
Act (50)
100 STAT. 1859 PUBLIC LAW 99-508--OCT. 21, 1986
U.S.C. 1801, et seq.), in order to
obstruct, impede, or prevent such
activity, gives notice or attempts to
give notice of the possible activity to
any person shall be fined under this
title or imprisoned not more than five
years, or both.".
SEC. 110. INJUNCTIVE REMEDY.
(a) IN GENERAL.--Chapter 119 of title
18, United States Code, is amended by
adding at the end the following:
18 USC 2521. "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
28 USC app. Procedure, except that, if an
indictment has been returned against
the respondent, discovery is governed
by the Federal Rules of Criminal
18 USC app. Procedure.".
(b)CLERICAL AMENDMENT.--The table of
sections at the beginning of chapter
119 of title 18, United States Code, is
amended by adding at the end thereof
the following:
"2521.Injunction against illegal
interception.".
18 USC 2510 SEC. 111.EFFECTIVE DATE.
note.
(a) IN GENERAL.--Except as provided in
subsection (b) or (c), this title and
the amendments made by this title shall
take effect 90 days after the date of
the enactment of this Act and shall, in
the case of conduct pursuant to a court
order or extension, apply only with
respect to court orders or extensions
made after this title takes effect.
(b)SPECIAL RULE FOR STATE
AUTHORIZATIONS OF INTERCEPTIONS.--
Any interception pursuant to section
2516(2) of title 18 of the United
States Code which would be valid and
lawful without regard to the amendments
made by this title shall be valid and
lawful notwithstanding such amendments
if such interception occurs during the
period beginning on the date such
amendments take effect and ending on
the earlier of--
(1)the day before the date of the
taking effect of State law conforming
the applicable State statue with
chapter 119 of title 18, United States
18 USC 2510 et Code, as so amended; or
seq. (2)the date two years after the
date of the enactment of this Act.
(c)EFFECTIVE DATE FOR CERTAIN APPROVALS
BY JUSTICE DEPARTMENT
OFFICIALS.--Section 104 of this Act
shall take effect on the date of
enactment of this Act.
100 STAT. 1860 PUBLIC LAW 99-508--OCT. 21, 1986
TITLE II--STORED WIRE AND ELECTRONIC COMMUNICATIONS
TRANSACTIONAL RECORDS ACCESS
Sec.201. TITLE 18 AMENDMENT.
Title 18, United States Code,is
amended by inserting after chapter 119
the following:
"CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
"Sec.
"2701. Unlawful access to stored
communications.
"2702. Disclosure of contents.
"2703. Requirements for governmental
access.
"2704. Backup preservation.
"2705. Delayed notice.
"2706. Cost reimbursement.
"2707. Civil action.
"2708. Exclusivity of remedies.
"2709. Counterintelligence access to
telephone toll and transactional
records.
"2710. Definitions.
18 USC 2701. "2701. Unlawful access to stored
communications
"(a)OFFENSE.--Except as provided in
subsection (c) of this section
whoever--
"(1) intentionally accesses
without authorization a facility
through which an electronic
communication service is provided; or
"(2) intentionally exceeds an
authorization to access that facility;
and thereby obtains, alters, or
prevents authorized access to a wire or
electronic communication while it is in
electronic storage in such system shall
be punished as provided in subsection
(b) of this section.
"(b)PUNISHMENT.--The punishment for an
offense under subsection (a) of this
section is--
"(1) if the offense is committed
for purposes of commercial advantage,
malicious destruction or damage, or
private commercial gain--
"(A) a fine of not more than $250,000 or
imprisonment for not more than one year,
or both, in case of a first offense
under this subparagraph; and
"(B) a fine under this title or
imprisonment for not more than two
years, or both, for any subsequent
offense under this subparagraph; and
"(2) a fine of not more than $5,000
or imprisonment for not more than six
months, or both, in any other case.
"(c)EXCEPTIONS.--Subsection (a) of this
section does not apply with respect to
conduct authorized--
"(1) by the person or entity
providing a wire or electronic
communications service;
"(2) by a use 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 USC 2702. "2702. Disclosure of contents
"(a) PROHIBITIONS.--Except as provided
in subsection(b)--
100 STAT. 1861 PUBLIC LAW 99-508--OCT. 21, 1986
"(1)a person or entity providing an
electronic communication service to the
public shall not knowingly divulge to
any person or entity the contents of a
communication while in electronic
storage by that service; and
"(2)a person or entity providing remote
computing service to the public shall
not knowingly divulge to any person or
entity the contents of any
communication which is carried or
maintained on that service--
"(A) on behalf of, and received by
means of electronic transmission from
(or created by means of computer
processing of communications received
by means of electronic transmission
from), a subscriber or customer of such
service;and
"(B) solely for the purpose of
providing storage or computer
processing services to such subscriber
or customer, if the provider is not
authorized to access the contents of
any such communications for purposes of
providing any services other than
storage or computer processing.
"(b) EXCEPTIONS.--A person or entity
may divulge the contents of a
communication--
"(1) to an addressee or intended
recipient of such communication or an
agent of such addressee or intended
recipient;
"(2)as otherwise authorized in section
2516, 2511(2)(a), or 2703 of this
title;
"(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 right or property of
the provider of that service; or
"(6)to a law enforcement agency, if
such contents--
"(A)were inadvertently obtained by
the service provider; and
"(B) appear to pertain to the
commission of a crime.
State and local "2703. Requirements for governmental
governments. access
18 USC 2703. "(a) CONTENTS OF ELECTRONIC
COMMUNICATIONS IN ELECTRONIC
STORAGE.--A governmental entity may
require the disclosure by a provider of
electronic communication service of the
contents of an electronic
communication, that is in electronic
storage in an electronic communications
system for one hundred and eighty days
or less, only pursuant to a warrant
issued under the Federal Rules of
Criminal Procedure or equivalent State
18 USC app. warrant. A governmental entity may
require the disclosure by a provider of
electronic communications services of
the contents of an electronic
communication that has been in
electronic storage in an electronic
communications system for more than one
hundred and eighty days by the means
available under subsection (b) of this
section.
"(b) CONTENTS OF ELECTRONIC
COMMUNICATIONS IN A REMOTE COMPUTING
SERVICE.--(1) A governmental entity may
require a provider of remote computing
service to disclose the contents of any
electronic communication to which this
paragraph is made applicable by
paragraph (2) of this subsection--
"(A) without required notice to
the subscriber or customer, if the
governmental entity obtains a warrant
issued under the
100 STAT. 1862 PUBLIC LAW 99-508--OCT. 21, 1986
18 USC app. Federal Rules of Criminal Procedure or
equivalent State warrant; or
"(B) with prior notice from the
governmental entity to the subscriber or
customer if the governmental entity--
"(i) uses an administrative
subpoena authorized by a Federal or
State statute or a Federal or State
grand jury subpoena; or
Post,p. 1864. "(ii) obtains a court order for
such disclosure under subsection (d) of
this section;
except that delayed notice may be given
pursuant to section 2705 of this title.
"(2) Paragraph (1) is applicable with
respect to any electronic communications
that is held or maintained on that
service--
"(A) on behalf of, and received by
means of electronic transmission from
(or created by means of computer
processing of communications received by
means of electronic transmission from),
a subscriber or customer of such remote
computing service; and
"(B) solely for the purpose of
providing storage or computer processing
services to such subscriber or customer,
if the provider is not authorized to
access the contents of any such
communications for purposes of providing
any services other than storage or
computer processing.
"(c) RECORDS CONCERNING ELECTRONIC
COMMUNICATION SERVICE OR REMOTE
COMPUTING SERVICE.--(1)(A) Except as
provided in subparagraph (B), a provider
of electronic communication service or
remote computing service may disclose a
record or other information pertaining
to a subscriber to or customer of such
service (not including the contents of
communications covered by subsection (a)
or (b) of this section) to any person
other than a governmental entity.
"(B) a provider of electronic
communication service or remote
computing service shall disclose a
record or other information pertaining
to a subscriber to or customer of such
service (not including the contents of
communications covered by subsection (a)
or (b) of this section) to a
governmental entity only when the
governmental entity--
"(i) uses an administrative
subpoena authorized by a Federal or
State statute, or a Federal or State
grand jury subpoena;
"(ii)obtains a warrant issued
under the Federal Rules of Criminal
Procedure or equivalent State warrant;
"(iii)obtains a court order for
such disclosure under subsection (d) of
this section; or
"(iv) has the consent of the
subscriber or customer to such
disclosure.
(2)A governmental entity receiving
records or information under this
subsection is not required to provide
notice to a subscriber or customer.
Records. "(d) REQUIREMENTS FOR COURT ORDER.--A
court order for disclosure under
subsection (b) or (c) of this section
shall issue only if the governmental
entity shows that there is reason to
believe the contents of a wire or
electronic communication, or the records
or other information sought, are
relevant to a legitimate law enforcement
inquiry. In the case of a State
governmental authority, such a court
order shall not issue if prohibited by
the law of such State. A court issuing
an order pursuant to this section, on a
motion made promptly by the service
provider, may quash or modify such
order, if
100 STAT. 1863 PUBLIC LAW 99-508--OCT. 21, 1986
the information or records requested are
unusually voluminous in nature or
compliance with such order otherwise
would cause an undue burden on such
provider.
"(e) NO CAUSE OF ACTION AGAINST A
PROVIDER DISCLOSING INFORMATION UNDER
THIS CHAPTER.--No cause of action shall
lie in any court against any provider of
wire or electronic communication
service, its officers, employees,
agents, or other specified persons for
providing information, facilities, or
assistance in accordance with the terms
of a court order, warrant, subpoena, or
certification under this chapter.
18 USC 2704. "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
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
100 STAT. 1864 PUBLIC LAW 99-508--OCT. 21, 1986
district court or State court. Such
motion or application shall contain an
affidavit or sworn statement--
"(A) stating that the applicant is
a customer or subscriber to the service
from which the contents of electronic
communications maintained for him have
been sought; and
"(B) stating the applicant's
reasons for believing that the records
sought are not relevant to a legitimate
law enforcement inquiry or that there
has not been substantial compliance with
the provisions of this chapter in some
other respect.
"(2)Service shall be made under this
section upon a governmental entity by
delivering or mailing by registered or
certified mail a copy of the papers to
the person, office, or department
specified in the notice which the
customer has received pursuant to this
chapter. For the purposes of this
section, the term 'delivery' has the
28 USC app. 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 USC 2705. "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
State and local "(B) where an administrative
governments. 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
100 STAT. 1865 PUBLIC LAW 99-508--OCT. 21, 1986
subpoena may have an adverse result
described in paragraph (2) of this
subsection.
"(2) An adverse result for the purposes
of paragraph (1) of this subsection
is--
"(A) endangering the life or
physical safety of an individual;
"(B) flight from prosecution;
"(C) destruction of or tampering
with evidence;
"(D) intimidation of potential
witnesses; or
"(E) otherwise seriously
jeopardizing an investigation or
unduly delaying a trial.
"(3)The governmental entity shall
maintain a true copy of
certification under paragraph (1)(B).
"(4) Extensions of the delay of
notification provided in section 2703
of up to ninety days each may be
granted by the court upon
application,or by certification by a
governmental entity, but only in
accordance with subsection (b) of this
section.
"(5) Upon expiration of the period of
delay of notification under paragraph
(1) or (4) of this subsection, the
governmental entity shall serve upon,
or deliver by registered or first-class
mail to, the customer or subscriber a
copy of the process or request together
with notice that--
"(A) states with reasonable
specificity the nature of the law
enforcement inquiry; and
"(B) informs such customer or
subscriber--
"(i) that information maintained
for such customer or subscriber by the
service provider named in such process
or request was supplied to or requested
by that governmental authority and the
date on which the supplying or request
took place;
"(ii) that notification of such
customer or subscriber was delayed;
"(iii) what governmental entity
or court made the certification or
determination pursuant to which that
delay was made; and
"(iv) which provision of this
chapter allowed such delay;
"(6) As used in this subsection, the
term 'supervisory official means the
investigative agent in charge or
assistant investigative agent in charge
or an equivalent of an investigating
agency's headquarters or regional
office, or the chief prosecuting
attorney or the first assistant
prosecuting attorney or an equivalent of
a prosecuting attorney's headquarters or
regional office.
"(b) PRECLUSION OF NOTICE TO SUBJECT OF
GOVERNMENTAL ACCESS.--A governmental
entity acting under section 2703 when it
is not required to notify the subscriber
or customer under section 2703(b)(1), or
to the extent that it may delay such
notice pursuant to commanding a provider
of electronic communications service or
remote computing service to whom a
warrant subpoena, or court to notify any
other person of the existence of the
warrant subpoena, 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;
100 STAT. 1866 PUBLIC LAW 99-508--OCT. 21, 1986
"(4) intimidation of potential
witnesses; or
"(5) otherwise seriously
jeopardizing an investigation or unduly
delaying a trial.
18 USC 2706. "2706. Cost reimbursement
"(a) PAYMENT.--Except as otherwise
provided in subsection (c), a
governmental entity-obtaining the
contents of communications, records, or
other information under section 2702,
2703, or 2704 of this title shall pay to
the person or entity assembling or
providing such information a fee for
reimbursement for such costs as are
reasonably necessary and which have been
directly incurred in searching for,
assembling, reproducing, or otherwise
providing such information. Such
reimbursable costs shall include any
costs due to necessary disruption of
normal operations of any electronic
communication service or remote
computing service in which such
information may be stored.
"(b) AMOUNT.--The amount of the fee
provided by subsection (a) shall be as
mutually agreed by the governmental
entity and the person or entity
providing the information, or, in the
absence of agreement, shall be as
determined by the court which issued the
order for production of such information
(or the court before which a criminal
prosecution relating to such information
would be brought, if no court order was
issued for production of the
information).
"(c) The requirement of subsection (a)
of this section does not apply with
respect to records or other information
maintained by a communications common
carrier that relate to telephone toll
records and telephone listings obtained
under section 2703 of this title. The
court may, however, order a payment as
described in subsection (a) if the court
determines the information required is
unusually voluminous in nature or
otherwise caused an undue burden on the
provider.
"2707. Civil action
"(a)CAUSE OF ACTION.--Except as provided
in section 2703(e), any provider of
electronic communication service,
subscriber, or customer aggrieved by any
violation of this chapter in which the
conduct constituting the violation is
engaged in with a knowing or intentional
state of mind may, in a civil action,
recover from the person or entity which
engaged in that violation such relief as
may be appropriate.
"(b)RELIEF.--In a civil action under
this section, appropriate relief
includes--
"(1)such preliminary and other
equitable or declaratory relief as may
be appropriate;
"(2)damages under subsection
(c);and
"(3)a reasonable attorney's fee
and other litigation costs reasonably
incurred.
"(c)DAMAGES.--The court may assess as
damages in a civil action under this
section the sum of the actual damages
suffered by the plaintiff and any
profits made by the violator as a result
of the violation, but in no case shall a
person entitled to recover receive less
than the sum of $1,000.
"(d)DEFENSE.--A good faith reliance on--
"(1) a court warrant or order, a
grand jury subpoena, a legislative
authorization, or a statutory
authorization;
"(2) a request of an investigative
or law enforcement officer under section
2518(7) of this title; or
100 STAT. 1867 PUBLIC LAW 99-508--OCT. 21, 1986
"(3) a good faith determination
that section 2511(3) of this title
permitted the conduct complained
of;
is a complete defense to any civil or
criminal action brought under this
chapter or any other law.
"(e) LIMITATION.--A civil action under
this section may not be commenced later
than two years after the date upon which
the claimant first discovered or had a
reasonable opportunity to discover the
violation.
18 USC 2708. "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 USC 2709. "2709. Counterintelligence access to
telephone toll and transactional
records
"(a)DUTY TO PROVIDE.--A wire or
electronic communication service
provider shall comply with a request for
subscriber information and toll billing
records information, or electronic
communication transactional records in
its custody or possession made by the
Director of the Federal Bureau of
Investigation under subsection (b) of
this section.
"(b) REQUIRED CERTIFICATION.--The
Director of the Federal Bureau of
Investigation (or an individual within
the Federal Bureau of Investigation
designated for this purpose by the
Director) may request any such
information and records if the Director
(or the Director's designee) certifies
in writing to the wire or electronic
communication service provider to which
the request is made that--
"(1)the information sought is
relevant to an authorized foreign
counterintelligence investigation;and
"(2)there are specific and
articulable facts giving reason to
believe that the person or entity to
whom the information sought pertains is
a foreign power or an agent of a
foreign power as defined in section 101
of the Foreign Intelligence Surveillance
Act of 1978(50 U.S.C. 1801).
"(c) PROHIBITION OF CERTAIN
DISCLOSURE.--No wire or electronic
communication service provider, or
officer, employee, or agent thereof
shall disclose to any person that the
Federal Bureau of Investigation has
sought or obtained access to information
or records under this section.
"(d) DISSEMINATION BY BUREAU.--The
Federal Bureau of Investigation may
disseminate information and records
obtained under this section only as
provided in guidelines approved by the
Attorney General for foreign
intelligence collection and foreign
counterintelligence investigations
conducted by the Federal Bureau of
Investigation, and, with respect to
dissemination to an agency of the United
States, only if such information is
clearly relevant to the authorized
responsibilities of such agency.
"(e) REQUIREMENT THAT CERTAIN
CONGRESSIONAL BODIES BE INFORMED.--On a
semiannual basis the Director of the
Federal Bureau of Investigation shall
fully inform the Permanent Select
Committee
100 STAT. 1868 PUBLIC LAW 99-508--OCT. 21, 1986
on Intelligence of the House of
Representatives and the Select Committee
on Intelligence of the Senate concerning
all requests made under subsection (b) of
this section.
18 USC 2710. "2710. Definitions for chapter
"As used in this chapter--
"(1) the terms defined in section
2510 of this title have, respectively,
the definitions given such terms in that
section; and
"(2) the term 'remote computing
service' means the provision to the
public of computer storage or processing
services by means of an electronic
communications system.".
(b) CLERICAL AMENDMENT.--The table of
chapters at the beginning of part I of
title 18, United States Code, is amended
by adding at the end of the following:
"121. Stored Wire and Electronic
Communications and Transactional Records
Access...................2701".
18 USC 2701 SEC. 202. EFFECTIVE DATE.
note.
This title and the amendments made by
this title shall take effect ninety days
after the date of the enactment of this
Act and shall, in the case of conduct
pursuant to a court order or extension,
apply only with respect to court orders
or extensions made after this title takes
effect.
TITLE III--PEN REGISTERS AND TRAP AND TRACE DEVICES
SEC.301. TITLE IS AMENDMENT.
(a) IN GENERAL.--Title 18 of the United
States Code is amended by inserting
after chapter 205 the following new
chapter:
"CHAPTER 206--PEN REGISTERS AND TRAP AND TRACE DEVICES
"Sec.
"3121. General prohibition on pen
register and trap and trace
device use; exception.
"3122. Application for an order for a
pen register or a trap and
trace device.
"3123. Issuance of an order for a pen
register or a trap or trace
device.
"3124. Assistance in installation and
use of a pen register or
a trap and trace device.
"3125. Reports concerning pen registers
and trap and trace devices.
"3126. Definitions for chapter.
18 USC 3121. "3121. General prohibition on pen
register and trap and trace device use;
exception
(a) IN GENERAL--Except as provided in
this section, no person may install or
use a pen register or a trap and trace
device without first obtaining a court
order under section 3123 of this title
or under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C.1801
et seq.).
(b) EXCEPTION.--The prohibition of
subsection (a) does not apply with
respect to the use of a pen register or
a trap and trace device by a provider of
electronic or wire communication
service--
100 STAT. 1869 PUBLIC LAW 99-508
"(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 use4 of service; or (3) where
the consent of the user of that service
has been obtained.
"(c)PENALTY.--Whoever knowingly violates
subsection (a) shall be fined under this
title or imprisoned not more than one
year, or both.
18 USC 3122. "3122. Application for an order for a pen
register or a trap and trace device
"(a)APPLICATION.--(1) An attorney for
the Government may make application for
an order or an extension of an order
under section 3123 of this title
authorizing or approving the
installation and use of a pen register
or a trap and trace device under this
chapter, in writing under oath or
equivalent formation, to a court of
competent jurisdiction.
State and local "(2)Unless prohibited by State law, a
governments. 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 formation, 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 identify of the attorney
for the Government or the State law
enforcement or investigative officer
making the application and the identify
of the law enforcement agency conducting
the investigation;and
"(2) a certification by the
applicant that the information likely to
be obtained is relevant to an ongoing
criminal investigation being conducted
by that agency.
"3123. Issuance of an order for a pen
register or a trap and trace device
"(a) IN GENERAL--Upon an application
made under section 3122 of this title,
the court shall enter an ex parte order
authorizing the installation and use of
a pen register or a trap and trace
device within the jurisdiction of the
court if the court finds that the
attorney for the Government or the state
law enforcement or investigative officer
has certified to the court that the
information likely to be obtained by
such installation and use is relevant to
an ongoing criminal investigation.
"(b) CONTENTS OF ORDER.--An order issued
under this section--
"(1) shall specify--
"(A) the identify, if known, of
the person to whom is leased or in whose
name is listed the telephone line to
which the pen register or trap and trace
device is to be attached;
"(B) the identify, if known, of
the person who is the subject of the
criminal investigation;
100 STAT. 1870 PUBLIC LAW 99-508--OCT. 21, 1986
"(C) the number and, if known,
physical location of the telephone line
to which the pen register or trap and
trace device is to be attached and, in
the case of a trap and trace device, the
geographic limits of the trap and trace
order; and
"(D) a statement of the offense
to which the information likely to be
obtained by the pen register or trap and
trace device relates; and
"(2) shall direct, upon the request
of the applicant, the furnishing of
information, facilities, and technical
assistance necessary to accomplish the
installation of the pen register or trap
and trace device under section 3124 of
this title.
"(c) TIME PERIOD AND EXTENSIONS.--(1) An
order issued under this section shall
authorize the installation and use of a
pen register or a trap and trace device
for a period not to exceed sixty days.
"(2) Extensions of such an order may be
granted, but only upon an application
for an order under section 3122 of this
title and upon the judicial finding
required by subsection (a) of this
section. The period of extension shall
be for a period not to exceed sixty
days.
"(d) NONDISCLOSURE OF EXISTENCE OF PEN
REGISTER OR A TRAP AND TRACE DEVICE.--An
order authorizing or approving the
installation and use of a pen register
or a trap and trace device shall direct
that--
"(1) the order be sealed until
otherwise
ordered by the court; and
"(2) the person owning or leasing
the line to which the pen register or a
trap and trace device is attached, or
who has been ordered by the court to
provide assistance to the applicant, not
disclose the existence of the pen
register or trap and trace device or the
existence of the investigation to the
listed subscriber, or to any other
person, unless or until otherwise
ordered by the court.
18 USC 3124. "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 a 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
intrusively and with a minimum of
interference with the services that the
person so ordered by the court accords
the party with respect to whom the
installation and use is to take place,
if such assistance is directed by a
court order as provided in section
3123(b)(2) of this title.
"(b) TRAP AND TRACE DEVICE.--Upon the
request of an attorney for the
Government or an officer of a law
enforcement agency authorized to receive
the results of a trap and trace device
under this chapter, a provider of a wire
or electronic communication service,
landlord,, custodian, or other person
shall install such device forthwith on
the appropriate line and shall furnish
such investigative or law enforcement
officer all additional information,
facilities and technical assistance
including installation and operation of
the
100 STAT. 1871 PUBLIC LAW 99-508--OCT. 21, 1986
device intrusively and with a minimum
of interference with the services that
the person so ordered by the court
accords the party with respect to whom
the installation and use is to take
place, if such installation and
assistance is directed by a court order
as provided in section 3123(b)(2) of
this title . Unless otherwise ordered
by the court, the results of the trap
and trace device shall be furnished to
the officer of a law enforcement agency,
designated in the court, at reasonable
intervals during regular business hours
for the duration of the order.
"(c) COMPENSATION.--A provider of a wire
or electronic communication service,
landlord, custodian, or other person who
furnishes reasonably compensated for
such reasonable expenses incurred in
"(d) NO CAUSE OF ACTION AGAINST A
PROVIDER DISCLOSING INFORMATION UNDER
THIS CHAPTER.--No cause of action shall
lie in any court against any provider of
a wire or electronic communication
service, its officers, employees,
agents, or other specified persons for
providing information, facilities or
assistance in accordance with the terms
of a court order under this chapter
(e)DEFENSE.--A good faith reliance on a
court order, a legislative authorization
or a statutory authorization is a
complete defense against any civil or
criminal action brought under this
chapter or any other law.
18 USC 3125. "3125. Reports concerning pen registers
and trap and trace devices
"The Attorney General shall annually
report to Congress on the number of pen
register orders and orders for trap and
trace devices applied for by law
enforcement agencies of the Department
of Justice.
"3126. Definitions for chapter
"As used in this chapter--
"(1) the terms 'wire
communication', electronic
communication', and 'electronic
communication service' have the meanings
set forth for such terms in section 2510
of this title;
"(2)the term 'court of competent
jurisdiction means--
(A) a district court of the United
States (including a magistrate of such a
court) or a United States Court of
Appeals; or
(B) a court of general criminal
jurisdiction of a State authorizing the
use of a pen register or a trap and
trace device;
"(3)the term "pen register" means a
device which records or decodes
electronic or other impulses which
identify the numbers dialed or otherwise
transmitted on the telephone line to
which such device is attached, but such
term does not include any device used by
a provider or customer of a wire or
electronic communication service for
billing, or recording as an incident to
billing, for communications services
provided by such provider or any device
used by a provider or customer of a wire
communication service for cost
accounting or other like purposes in the
ordinary course of its business;
100 STAT. 1872 PUBLIC LAW 99-508--OCT. 21, 1986
"(4) the term 'trap and trace
device'
means a device which captures the
incoming electronic or other impulses
which identify the originating number of
an instrument or device from which a
wire or electronic communication was
transmitted;
"(5) the term 'attorney for the
Government' has the meaning given such
term for the purposes of the Federal
Rules of Criminal Procedure; and
"(6) the term 'State' means a
State, the district of Columbia, Puerto
Rico, and any other possession or
territory of the United States.".
(b) CLERICAL AMENDMENT.--The table of
chapters for part II of title 18 of the
United States Code is amended by
inserting after the item relating to
chapter 205 the following new item:
"206. Pen Registers and Trap and Trace
Devices. ....3121",
18 USC 3121 SEC.302. EFFECTIVE DATE.
note.
(a)IN GENERAL--Except as provided in
subsection (b), this title and the
amendments made by this title shall take
effect ninety days after the date of the
enactment of this Act and shall, in the
case of conduct pursuant to a court
order or extension, apply only with
respect to court orders or extensions
made after this title takes effect.
(b)SPECIAL RULE FOR STATE AUTHORIZATIONS
OF INTERCEPTIONS.--
Any pen register or trap and trace
device order or installation which would
be valid and lawful without regard to
the amendments made by this title shall
be valid and lawful notwithstanding such
amendments if such order or installation
occurs during the period beginning on
the date such amendments take effect and
ending on the earlier of--
(1)the day before the date of the
taking effect of changes in State law
required in order to make orders or
installations under Federal law as
amended by this title; or
(2)the date two years after the
date of the enactment of this Act.
SEC.303.INTERFERENCE WITH THE OPERATION
OF A SATELLITE.
(a)OFFENSE--Chapter 65 of the 18, United
States Code, is amended by inserting at
the end of the following:
18 USC 1367. "1367. Interference with the operation
of a satellite
"(a) Whoever, without the authority of
the satellite operator, intentionally or
maliciously interferes with the
authorized operation of a communications
or weather satellite or obstructs or
hinders any satellite transmission shall
be fined in accordance with this title
or imprisoned not more than ten years or
both.
"(b) This section does not prohibit any
lawfully authorized investigative,
protective, or intelligence activity of
a law enforcement agency or of an
intelligence agency of the United
States."
100 STAT. 1873 PUBLIC LAW 99-508--OCT. 21, 1986
(b) CONFORMING AMENDMENT.--The table of
sections for chapter 65 of title 18,
United States Code, is amended by adding
at the end the following new item:
"1367. Interference with the operation of a satellite.".
Approved October 21, 1986.
____________________________________________________________
LEGISLATIVE HISTORY--H.R. 4952 (S. 2575):
___________________________________________
HOUSE REPORTS: No. 99-647 (Comm. on the Judiciary).
CONGRESSIONAL RECORD. Vol 132 (1986):
June 23, considered and passed House.
Oct. 1, considered and passed Senate, amended.
Oct. 2, House concurred in Senate amendments.
91-139 O - 87 (526)