by Unknown
or agency involved determines that disciplinary action is not war-
ranted, he or she shall notify the Inspector General with jurisdic-
tion over the department or agency concerned and shall provide the
Inspector General with the reasons for such determination.
(g) Improper disclosure is violation—Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of
information beyond the extent permitted by section 2517 is a viola-
tion of this chapter for purposes of section 2520(a).
§ 2521. Injunction against Illegal Interception
Whenever it shall appear that any person is engaged or is about to engage in any act which constitutes or will constitute a felony violation of this chapter, the Attorney General may initiate a civil action in a district court of the United States to enjoin such violation. The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Federal Rules of Civil Procedure, except that, if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure.
§ 2522. Enforcement of the Communications
Assistance for Law Enforcement Act
(a) Enforcement by court issuing surveil ance order—If a court authorizing an interception under this chapter, a State statute, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) or authorizing use of a pen register or a trap and trace device
under chapter 206 or a State statute finds that a telecommunica-
tions carrier has failed to comply with the requirements of the
Communications Assistance for Law Enforcement Act, the court
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Appendix A: Electronic Surveillance Law
may, in accordance with section 108 of such Act, direct that the car-
rier comply forthwith and may direct that a provider of support ser-
vices to the carrier or the manufacturer of the carrier’s transmission
or switching equipment furnish forthwith modifications necessary
for the carrier to comply.
(b) Enforcement upon application by Attorney General—The Attorney General may, in a civil action in the appropriate United States district court, obtain an order, in accordance with section 108 of the
Communications Assistance for Law Enforcement Act, directing
that a telecommunications carrier, a manufacturer of telecommuni-
cations transmission or switching equipment, or a provider of tele-
communications support services comply with such Act.
(c) Civil penalty—
(1)
In general—A court issuing an order under this section against
a telecommunications carrier, a manufacturer of telecommuni-
cations transmission or switching equipment, or a provider of
telecommunications support services may impose a civil pen-
alty of up to $10,000 per day for each day in violation after the
issuance of the order or after such future date as the court may
specify.
(2)
Considerations—In determining whether to impose a civil pen-
alty and in determining its amount, the court shall take into
account—
(A) the nature, circumstances, and extent of the violation;
(B) the violator’s ability to pay, the violator’s good faith efforts to
comply in a timely manner, any effect on the violator’s ability
to continue to do business, the degree of culpability, and the
length of any delay in undertaking efforts to comply; and
(C) such other matters as justice may require.
(d) Definitions—As used in this section, the terms defined in section 102
of the Communications Assistance for Law Enforcement Act have
the meanings provided, respectively, in such section.
Stored Wire and Electronic Communications and
Transactional Records Access (18 U.S.C. §§ 2701–2712)
Stored Wire and Electronic Communications
and
Transactional Records Access
(18 U.S.C. 2702, 2707, and 2708)
18 U.S.C. 2702
Disclosure of Contents
Appendix A: Electronic Surveillance Law
293
§ 2702. Disclosure of Contents
(a) Prohibitions—Except as provided in subsection (b)—
(1) a person or entity providing an electronic communication ser-
vice to the public shall not knowingly divulge to any person or
entity the contents of a communication while in electronic stor-
age 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 transmis-
sion from (or created by means of computer processing of
communications received by means of electronic transmis-
sion from), a subscriber or customer of such service; and
(B) solely for the purpose of providing storage or computer pro-
cessing services to such subscriber or customer, if the provider
is not authorized to access the contents of any such commu-
nications for purposes of providing any services other than
storage or computer processing; and
(3) a provider of remote computing service or electronic communi-
cation service to the public shall not knowingly divulge a record
or other information pertaining to a subscriber to or customer
of such service (not including the contents of communications
covered by paragraph (1) or (2)) to any governmental entity.
(b) Exceptions—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—
(A) if the contents—
(i) were inadvertently obtained by the service provider; and
(ii) appear to pertain to the commission of a crime; or
294
Appendix A: Electronic Surveillance Law
(B) if required by section 227 of the Crime Control Act of 1990
[42 U.S.C.A S 13032].
(C) if the provider reasonably believes that an emergency involving
immediate danger of death or serious physical injury to any per-
son requires disclosure of the information without delay.
(c) Exceptions for disclosure of customer records. A provider described
in subsection (a) may divulge a record or
other information pertaining
to a subscriber to or customer of such service (not including the con-
tents of communications covered by subsection (a)(1) or (a)(2))—
(1) as otherwise authorized in section 2703;
(2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or
(5) to any person other than a governmental entity.
§ 2703 (c) Authorization to Release (AT&T)
18 U.S.C. 2707
§ 2707. Civil Action
(a) Cause of Action—Except as provided in section 2703 (e), any provider of electronic communication service, subscriber, or other person aggrieved
by any violation of this chapter in which the conduct constituting the
violation is engaged in with a knowing or intentional state of mind may,
in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.
(b) Relief—In a civil action under this section, appropriate relief includes—
(1) such preliminary and other equitable or declaratory relief as may
be appropriate;
(2) damages under subsection (c); and
(3) a reasonable attorney’s fee and other litigation costs reasonably
incurred.
(c) Damages—The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff
and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of
$1,000. If the violation is willful or intentional, the court may assess
punitive damages. In the case of a successful action to enforce liabil-
ity under this section, the court may assess the costs of the action,
together with reasonable attorney fees determined by the court.
Appendix A: Electronic Surveillance Law
295
(d) Administrative Discipline—If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and
the court or appropriate department or agency finds that the cir-
cumstances surrounding the violation raise serious questions about
whether or not an officer or employee of the United States acted
willfully or intentionally with respect to the violation, the depart-
ment or agency shall, upon receipt of a true and correct copy of
the decision and findings of the court or appropriate department
or agency promptly initiate a proceeding to determine whether dis-
ciplinary action against the officer or employee is warranted. If the
head of the department or agency involved determines that disci-
plinary action is not warranted, he or she shall notify the Inspector
General with jurisdiction over the department or agency concerned
and shall provide the Inspector General with the reasons for such
determination.
(e) Defense—A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legisla-
tive authorization, or a statutory authorization (including a
request of a governmental entity under section 2703 (f) of this
title);
(2) a request of an investigative or law enforcement officer under sec-
tion 2518 (7) of this title; or
(3) a good faith determination that section 2511 (3) of this title per-
mitted the conduct complained of; is a complete defense to
any civil or criminal action brought under this chapter or any
other law.
(f) Limitation—A civil action under this section may not be com-
menced later than two years after the date upon which the claim-
ant first discovered or had a reasonable opportunity to discover the
violation.
(g) Improper Disclosure—Any willful disclosure of a “record”, as that term is defined in section 552a (a) of title 5, United States Code,
obtained by an investigative or law enforcement officer, or a govern-
mental entity, pursuant to section 2703 of this title, or from a device
installed pursuant to section 3123 or 3125 of this title, that is not a
disclosure made in the proper performance of the official functions
of the officer or governmental entity making the disclosure, is a vio-
lation of this chapter. This provision shall not apply to information
previously lawfully disclosed (prior to the commencement of any
civil or administrative proceeding under this chapter) to the public
by a Federal, State, or local governmental entity or by the plaintiff in
a civil action under this chapter.
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§ 2708. Exclusivity of Remedies
The remedies and sanctions described in this chapter are the only judi-
cial remedies and sanctions for nonconstitutional violations of this
chapter.
Last modified: April 13, 2006
The Pen Register and Trap and Trace
Act (18 U.S.C. §§ 3121–3127)
18 U.S.C. § 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 Intel igence Surveil ance Act of 1978 (50 U.S.C.
1801 et seq.).
(b) Exception. The prohibition of subsection (a) does not apply with respect to the use of a pen register or a trap and trace device by a
provider of electronic or wire communication service
(1) relating to the operation, maintenance, and testing of a wire or
electronic communication service or to the protection of the
rights or property of such provider, or to the protection of
users of that service from abuse of service or unlawful use of
service; or
(2) to record the fact that a wire or electronic communication was
initiated or completed in order to protect such provider, another
provider furnishing service toward the completion of the wire
communication, or a user of that service, from fraudulent,
unlawful or abusive use of service; or
(3) where the consent of the user of that service has been obtained.
(c) Limitation. A government agency authorized to install and use a pen register or trap and trace device under this chapter or under
State law shall use technology reasonably available to it that restricts
the recording or decoding of electronic or other impulses to the
dialing, routing, addressing, and signaling information utilized in
the processing and transmitting of wire or electronic communi-
cations so as not to include the contents of any wire or electronic
communications.
(d) Penalty. Whoever knowingly violates subsection (a) shall be fined under this title or imprisoned not more than 1 year, or both.
Appendix A: Electronic Surveillance Law
297
18 U.S.C. § 3122. Application for an Order for a
Pen Register or a Trap and Trace Device
(a) Application.
(1) An attorney for the Government may make application for an
order or an extension of an order under section 3123 of this title
authorizing or approving the installation and use of a pen reg-
ister or a trap and trace device under this chapter, in writing
under oath or equivalent affirmation, to a court of competent
jurisdiction.
(2) Unless prohibited by State law, a State investigative or law enforcement officer may make application for an order or an extension
of an order under section 3123 of this title authorizing or approv-
ing the installation and use of a pen register or a trap and trace
device under this chapter, in writing under oath or equivalent
affirmation, to a court of competent jurisdiction of such State.
(b) Contents of Application. An application under subsection (a) of this section shall include—
(1) the identity of the attorney for the Government or the State law
enforcement or investigative officer making the application and
the identity of the law enforcement agency conducting the inves-
tigation; 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.
(1)
Attorney for the Government—Upon an application made under
section 3122 (a)(1), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace
device anywhere within the United States, if the court finds that
the attorney for the Government has certified to the court that
the information likely to be obtained by such installation and
use is relevant to an ongoing criminal investigation. The order,
upon service of that order, shall apply to any person or entity pro-
