ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986

Complete Text of this Public Law 99


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 gov

 

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