by Unknown
(21) “computer trespasser”—
(A) means a person who accesses a protected computer without
authorization and thus has no reasonable expectation of pri-
vacy in any communication transmitted to, through, or from
the protected computer; and
(B) does not include a person known by the owner or operator of
the protected computer to have an existing contractual rela-
tionship with the owner or operator of the protected computer
for access to all or part of the protected computer.
§ 2511. Interception and Disclosure of Wire, Oral,
or Electronic Communications Prohibited
(1) Except as otherwise specifically provided in this chapter any person
who—
(a) intentionally intercepts, endeavors to intercept, or procures any
other person to intercept or endeavor to intercept, any wire,
oral, or electronic communication;
Appendix A: Electronic Surveillance Law
267
(b) intentionally uses, endeavors to use, or procures any other per-
son to use or endeavor to use any electronic, mechanical, or
other device to intercept any oral communication when—
(i) such device is affixed to, or otherwise transmits a signal
through, a wire, cable, or other like connection used in
wire communication; or
(ii) such device transmits communications by radio, or inter-
feres with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device
or any component thereof has been sent through the mail
or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the prem-
ises of any business or other commercial establishment
the operations of which affect interstate or foreign com-
merce; or (B) obtains or is for the purpose of obtaining
information relating to the operations of any business or
other commercial establishment the operations of which
affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or pos-
session of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic communica-
tion, knowing or having reason to know that the information
was obtained through the interception of a wire, oral, or elec-
tronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire,
oral, or electronic communication, knowing or having reason
to know that the information was obtained through the inter-
ception of a wire, oral, or electronic communication in viola-
tion of this subsection; or
(e) (i) intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic communi-
cation, intercepted by means authorized by sections 2511(2)(a)
(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter, (ii)
knowing or having reason to know that the information was
obtained through the interception of such a communication in
connection with a criminal investigation, (iii) having obtained
or received the information in connection with a criminal inves-
tigation, and (iv) with intent to improperly obstruct, impede, or
interfere with a duly authorized criminal investigation, shall be
punished as provided in subsection (4) or shall be subject to suit
as provided in subsection (5).
268
Appendix A: Electronic Surveillance Law
(2)(a) (i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose
facilities are used in the transmission of a wire or electronic
communication, to intercept, disclose, or use that commu-
nication in the normal course of his employment while
engaged in any activity which is a necessary incident to the
rendition of his service or to the protection of the rights or
property of the provider of that service, except that a pro-
vider of wire communication service to the public shall not
utilize service observing or random monitoring except for
mechanical or service quality control checks.
(ii) Notwithstanding any other law, providers of wire or elec-
tronic communication service, their officers, employees,
and agents, landlords, custodians, or other persons, are
authorized to provide information, facilities, or technical
assistance to persons authorized by law to intercept wire,
oral, or electronic communications or to conduct elec-
tronic surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, if such provider, its
officers, employees, or agents, landlord, custodian, or other
specified person, has been provided with—
(A) a court order directing such assistance signed by the
authorizing judge, or
(B) a certification in writing by a person specified in sec-
tion 2518 (7) of this title or the Attorney General of
the United States that no warrant or court order is
required by law, that all statutory requirements have
been met, and that the specified assistance is required,
setting forth the period of time during which the
provision of the information, facilities, or technical
assistance is authorized and specifying the informa-
tion, facilities, or technical assistance required. No
provider of wire or electronic communication ser-
vice, officer, employee, or agent thereof, or landlord,
custodian, or other specified person shall disclose
the existence of any interception or surveillance or
the device used to accomplish the interception or
surveillance with respect to which the person has
been furnished a court order or certification under
this chapter, except as may otherwise be required by
legal process and then only after prior notification to
the Attorney General or to the principal prosecuting
Appendix A: Electronic Surveillance Law
269
attorney of a State or any political subdivision of a
State, as may be appropriate. Any such disclosure,
shall render such person liable for the civil damages
provided for in section 2520. No cause of action shall
lie in any court against any provider of wire or elec-
tronic communication service, its officers, employees,
or agents, landlord, custodian, or other specified per-
son for providing information, facilities, or assistance
in accordance with the terms of a court order, statu-
tory authorization, or certification under this chapter.
(b) It shall not be unlawful under this chapter for an offi-
cer, employee, or agent of the Federal Communications
Commission, in the normal course of his employment and in
discharge of the monitoring responsibilities exercised by the
Commission in the enforcement of chapter 5 of title 47 of the
United S
tates Code, to intercept a wire or electronic communi-
cation, or oral communication transmitted by radio, or to dis-
close or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a person acting
under color of law to intercept a wire, oral, or electronic com-
munication, where such person is a party to the communica-
tion or one of the parties to the communication has given prior
consent to such interception.
(d) It shall not be unlawful under this chapter for a person not act-
ing under color of law to intercept a wire, oral, or electronic
communication where such person is a party to the commu-
nication or where one of the parties to the communication has
given prior consent to such interception unless such communi-
cation is intercepted for the purpose of committing any crimi-
nal or tortious act in violation of the Constitution or laws of the
United States or of any State.
(e) Notwithstanding any other provision of this title or section
705 or 706 of the Communications Act of 1934, it shall not
be unlawful for an officer, employee, or agent of the United
States in the normal course of his official duty to conduct elec-
tronic surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, as authorized by that Act.
(f) Nothing contained in this chapter or chapter 121 or 206 of
this title, or section 705 of the Communications Act of 1934,
shall be deemed to affect the acquisition by the United States
Government of foreign intelligence information from interna-
tional or foreign communications, or foreign intelligence activi-
ties conducted in accordance with otherwise applicable federal
270
Appendix A: Electronic Surveillance Law
law involving a foreign electronic communications system, uti-
lizing a means other than electronic surveil ance as defined in
section 101 of the Foreign Intelligence Surveil ance Act of 1978,
and procedures in this chapter or chapter 121 and the Foreign
Intelligence Surveil ance Act of 1978 shall be the exclusive
means by which electronic surveil ance, as defined in section
101 of such Act, and the interception of domestic wire, oral, and
electronic communications may be conducted.
(g) It shall not be unlawful under this chapter or chapter 121 of this
title for any person—
(i) to intercept or access an electronic communication made
through an electronic communication system that is con-
figured 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 com-
munications system, including police and fire,
readily accessible to the general public;
(III) by a station operating on an authorized frequency
within the bands allocated to the amateur, citizens
band, or general mobile radio services; or
(IV) by any marine or aeronautical communications
system;
(iii) to engage in any conduct which—
(I) is prohibited by section 633 of the Communications
Act of 1934; or
(II) is excepted from the application of section 705(a) of
the Communications Act of 1934 by section 705(b)
of that Act;
(iv) to intercept any wire or electronic communication the
transmission of which is causing harmful interference
to any lawfully operating station or consumer electronic
equipment, to the extent necessary to identify the source
of such interference; or
(v) for other users of the same frequency to intercept any
radio communication made through a system that uti-
lizes frequencies monitored by individuals engaged in
the provision or the use of such system, if such commu-
nication is not scrambled or encrypted.
Appendix A: Electronic Surveillance Law
271
(h) It shall not be unlawful under this chapter—
(i) to use a pen register or a trap and trace device (as those
terms are defined for the purposes of chapter 206 (relating
to pen registers and trap and trace devices) of this title); or
(ii) for a provider of electronic communication service to
record the fact that a wire or electronic communication
was initiated or completed in order to protect such pro-
vider, another provider furnishing service toward the
completion of the wire or electronic communication, or a
user of that service, from fraudulent, unlawful or abusive
use of such service.
(i) It shall not be unlawful under this chapter for a person acting
under color of law to intercept the wire or electronic commu-
nications of a computer trespasser transmitted to, through, or
from the protected computer, if—
(I) the owner or operator of the protected computer autho-
rizes the interception of the computer trespasser’s com-
munications on the protected computer;
(II) the person acting under color of law is lawfully engaged
in an investigation;
(III) the person acting under color of law has reasonable grounds
to believe that the contents of the computer trespasser’s
communications will be relevant to the investigation; and
(IV) such interception does not acquire communications other
than those transmitted to or from the computer trespasser.
(3)(a) Except as provided in paragraph (b) of this subsection, a person
or entity providing an electronic communication service to the
public shall not intentionally divulge the contents of any com-
munication (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 com-
munication or an agent of such addressee or intended recipient.
(b) A person or entity providing electronic communication service to
the public may divulge the contents of any such communication—
(i) as otherwise authorized in section 2511 (2)(a) or 2517 of
this title;
(ii) with the lawful consent of the originator or any addressee
or intended recipient of such communication;
(iii) to a person employed or authorized, or whose facilities are
used, to forward such communication to its destination; or
(iv) which were inadvertently obtained by the service provider
and which appear to pertain to the commission of a crime,
if such divulgence is made to a law enforcement agency.
272
Appendix A: Electronic Surveillance Law
(4)(a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined
under this title or imprisoned not more than five years, or both.
(b) Conduct otherwise an offense under this subsection that consists
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 facili-
ties open to the public, but not including data transmissions
or telephone calls, is not an offense under this subsection
unless the conduct is for the purposes of direct or indirect
commercial advantage or private financial gain.
[(c) Redesignated (b)]
(5)(a) (i) If the communication is—
(A) a private satellite video communication that is not scrambled
or encrypted and the conduct in violation of this chapter is
the private viewing of that communication and is not for a
tortious or illegal purpose or for purposes of direct or indi-
rect commercial advantage or private commercial gain; or
(B) a radio communication that is transmitted on frequen-
cies allocated under subpart D of part 74 of the rules of
the Federal Communications Commission that is not
scrambled or encrypted and the conduct in violation of
this chapter is not for a tortious or illegal purpose or for
purposes of direct or indirect commercial advantage or
private commercial gain, then the person who engages
in such conduct shall be subject to suit by the Federal
Government in a court of competent jurisdiction.
(ii) In an action under this subsection—
(A) if the violation of this chapter is a first offense for the
person under paragraph (a) of subsection (4) and such
person has not been found liable in a civil action under
section 2520 of this title, the Federal Government shall
be entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or subsequent
offense under paragraph (a) of subsection (4) or such
person has been found liable in any prior civil action
under section 2520, the person shall be subject to a man-
datory $500 civil fine.
