Media Law

STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACT

UNITED STATES CODE

TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 121-STORED WIRE AND ELECTRONIC COMMUNICATIONS
AND TRANSACTIONAL RECORDS ACT

_____________________________

Sec. 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 (sic) under this title or imprisonment
for not more than one year, or both, in the case of a first
offense under this subparagraph; and

(B) a fine under this title or imprisonment for not
more than two years, or both, for any subsequent offense under
this subparagraph; and

(2) a fine of (sic) under this title 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 user of that service with respect to a
communication of or intended for that user; or

(3) in section 2703, 2704 or 2518 of this title.

_________________________

Sec. 2702. Disclosure of contents.

(a) Prohibitions.--Except as provided in subsection (b)--

(1) a person or entity providing an electronic communication
service to the public shall not knowingly divulge to any person
or entity the contents of a communication while in electronic
storage by that service; and

(2) a person or entity providing remote computing service to
the public shall not knowingly divulge to any person or entity
the contents of any 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 2517, 2511(2)(a), or
2703 of this title;

(3) with the lawful consent of the originator or an
addressee or intended recipient of such communication, or the
subscriber in the case of remote computing service;

(4) to a person employed or authorized or whose facilities
are used to forward such communication to its destination;

(5) as may be necessarily incident to the rendition of the
service or to the protection of the rights or property of the
provider of that service; 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.

_____________________________

Sec. 2703. Requirements for governmental access.

(a) Contents of electronic communications in electronic
storage.--A governmental entity may require the disclosure by a
provider of electronic communication service of the contents of
an electronic communication, that is in electronic storage in an
electronic communications system for one hundred and eighty days
or less, only pursuant to a warrant issued under the Federal
Rules of Criminal Procedure or equivalent State warrant. A
governmental entity may require the disclosure by a provider of
electronic communications services of the contents of an
electronic communication that has been in electronic storage in
an electronic communications system for more than one hundred and
eighty days by the means available under subsection (b) of this
section.

(b) Contents of electronic communications in a remote
computing service.

(1) A governmental entity may require a provider of remote
computing service to disclose the contents of any electronic
communication to which this paragraph is made applicable by
paragraph (2) of this subsection--

(A) without required notice to the subscriber or
customer, if the governmental entity obtains a warrant issued
under the Federal Rules of Criminal Procedure or equivalent State
warrant; or

(B) with prior notice from the governmental entity to
the subscriber or customer if the governmental entity--

(i) uses an administrative subpoena authorized by
a Federal or State statute or a Federal or State grand jury or
trial subpoena; or

(ii) obtains a court order for such disclosure
under subsection (d) of this section;

except that delayed notice may be given pursuant
to section 2705 of this title.

(2) Paragraph (1) is applicable with respect to any
electronic communication that is held or maintained on that
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) obtains a warrant issued under the Federal
Rules of Criminal Procedure or equivalent State warrant;

(ii) obtains a court order for such disclosure
under subsection (d) of this section; or

(iii) has the consent of the subscriber or
customer to such disclosure.

(C) A provider of electronic communication service or
remote computing service shall disclose to a governmental entity
the name, address, telephone toll billing records, telephone
number or other subscriber number or identity, and length of
service of a subscriber to or customer of such service and the
types of services the subscriber or customer utilized, when the
governmental entity uses an administrative subpoena authorized by
a Federal or State statute or a Federal or State grand jury or
trial subpoena or any means available under subparagraph (B).

(2) A governmental entity receiving records or information
under this subsection is not required to provide notice to a
subscriber or customer.

(d) Requirements for court order.--A court order for
disclosure under subsection (b) or (c) may be issued by any court
that is a court of competent jurisdiction described in section
3127(2)(A) and shall issue only if the governmental entity offers
specific and articulable facts showing that there are reasonable
grounds to believe that the contents of a wire or electronic
communication, or the records or other information sought, are
relevant and material to an ongoing criminal investigation. In
the case of a State governmental authority, such a court order
shall not issue if prohibited by the law of such State. A court
issuing an order pursuant to this section, on a motion made
promptly by the service provider, may quash or modify such order,
if the information or records requested are unusually voluminous
in nature or compliance with such order otherwise would cause an
undue burden on such provider.

(e) No cause of action against a provider disclosing
information under this chapter.--No cause of action shall lie in
any court against any provider of wire or electronic
communication service, its officers, employees, agents, or other
specified persons for providing information, facilities, or
assistance in accordance with the terms of a court order,
warrant, subpoena, or certification under this chapter.

__________________________

Sec. 2704. Backup preservation.

(a) Backup preservation.--

(1) A governmental entity acting under section 2703(b)(2)
may include in its subpoena or court order a requirement that the
service provider to whom the request is directed create a backup
copy of the contents of the electronic communications sought in
order to preserve those communications. Without notifying the
subscriber or customer of such subpoena or court order, such
service provider shall create such backup copy as soon as
practicable consistent with its regular business practices and
shall confirm to the governmental entity that such backup copy
has been made. Such backup copy shall be created within two
business days after receipt by the service provider of the
subpoena or court order.

(2) Notice to the subscriber or customer shall be made by
the governmental entity within three days after receipt of such
confirmation, unless such notice is delayed pursuant to section
2705(a).

(3) The service provider shall not destroy such backup copy
until the later of--

(A) the delivery of the information; or

(B) the resolution of any proceedings (including
appeals of any proceeding) concerning the government's subpoena
or court order.

(4) The service provider shall release such backup copy to
the requesting governmental entity no sooner than fourteen days
after the governmental entity's notice to the subscriber or
customer if such service provider--

(A) has not received notice from the subscriber or
customer that the subscriber or customer has challenged the
governmental entity's request; and

(B) has not initiated proceedings to challenge the
request of the governmental entity.

(5) A governmental entity may seek to require the creation
of a backup copy under subsection (a)(1) of this section if in
its sole discretion such entity determines that there is reason
to believe that notification under section 2703 of this title of
the existence of the subpoena or court order may result in
destruction of or tampering with evidence. This determination is
not subject to challenge by the subscriber or customer or service
provider.

(b) Customer challenges.

(1) Within fourteen days after notice by the governmental
entity to the subscriber or customer under subsection (a)(2) of
this section, such subscriber or customer may file a motion to
quash such subpoena or vacate such court order, with copies
served upon the governmental entity and with written notice of
such challenge to the service provider. A motion to vacate a
court order shall be filed in the court which issued such order.
A motion to quash a subpoena shall be filed in the appropriate
United States district court or State court. Such motion or
application shall contain an affidavit or sworn statement--

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

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

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

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

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

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

_________________________

Sec. 2705. Delayed notice.

(a) Delay of notification.

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

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

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

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

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

(B) flight from prosecution;

(D) intimidation of potential witnesses; or

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

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

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

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

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

(B) informs such customer or subscriber--

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

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

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

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

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

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

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

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

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

____________________________

Sec. 2706. Cost reimbursement.

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

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

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

___________________________

Sec. 2707. Civil action.

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

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

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

(2) damages under subsection (c); and

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

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

(d) Defense. A good faith reliance on -

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

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

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

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

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

________________________

Sec. 2708. Exclusivity of remedies.

The remedies and sanctions described in this chapter (18 USC
2701, et seq.) are the only judicial remedies and sanctions for
nonconstitutional violations of this chapter (18 USC 2701, et
seq.).

____________________

Sec. 2709. Counterintelligence access to telephone toll and
transactional records.

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

(b) Required certification.--The Director of the Federal
Bureau of Investigation, or his designee in a position not lower
than Deputy Assistant Director, may--

(1) request the name, address, length of service, and
toll billing records of a person or entity if the Director (or
his designee in a position not lower than Deputy Assistant
Director) certifies in writing to the wire or electronic
communication service provider to which the request is made that
-

(A) the name, address, length of service, and toll
billing records sought are relevant to an authorized foreign
counterintelligence investigation; and

(B) 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); and

(2) request the name, address, and length of service of
a person or entity if the Director (or his designee in a position
not lower than Deputy Assistant Director) certifies in writing to
the wire or electronic communication service provider to which
the request is made that -

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

(B) there are specific and articulable facts
giving reason to believe that communication facilities registered
in the name of the person or entity have been used, through the
services of such provider, in communication with -

(i) an individual who is engaging or
has engaged in international terrorism as defined in section
101(c) of the Foreign Intelligence Surveillance Act or
clandestine intelligence activities that involve or may involve a
violation of the criminal statutes of the United States; or

(ii) a foreign power or an agent of a foreign
power under circumstances giving reason to believe that the
communication concerned international terrorism as defined in
section 101(c) of the Foreign Intelligence Surveillance Act or
clandestine intelligence activities that involve or may involve a
violation of the criminal statutes of the United States.

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

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

(e) Requirement that certain congressional bodies be informed.
On a semiannual basis the Director of the Federal Bureau of
Investigation shall fully inform the Permanent Select Committee
on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, and the Committee on the
Judiciary of the House of Representatives and the Committee on
the Judiciary of the Senate, concerning all requests made under
subsection (b) of this section.

_______________________________

Sec. 2710. Wrongful disclosure of video tape rental or sale
records.
(TEXT OF STATUTE OMITTED).

_______________________________

Sec. 2711. Definitions for chapter.

As used in this chapter (18 USC 2701, et seq.) -

(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.