Campbell et al v. Facebook Inc.

Filing 31

RESPONSE (re 29 MOTION to Dismiss Consolidated Amended Complaint ) filed byMatthew Campbell, Michael Hurley, David Shadpour. (Attachments: # 1 Declaration of Michael W. Sobol, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Sobol, Michael) (Filed on 7/30/2014)

EXHIBIT C

LAW

KF
31
.J8
1986

Calendar No. 1064

C O P . 2 RESS

REPORT

SENATE

99-541

ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986

OCTOBER 17 (legislative day, OCTOBER 10), 1986.—Ordered to be printed

Mr. THURMOND, from the Committee on the Judiciary,
submitted the following

REPORT
[To accompany S. 2575]

The Committee on the Judiciary, to which was referred the bill
(S. 2575) having considered the same, reports favorably thereon
with an amendment in the nature of a substitute and recommends
that the bill, as amended, do pass.
CONTENTS
Page

I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.

Purpose
History
Statement
Glossary
Section-by-section analysis
Agency views
Cost estimate
Regulatory impact statement
Vote of committee
Changes in existing laws

..

1
3
5
8
11
50
51
52
52
52

I. PURPOSE

The Electronic Communications Privacy Act amends title III of
the Omnibus Crime Control and Safe Streets Act of 1968—the Fed­
eral wiretap law—to protect against the unauthorized interception
of electronic communications. The bill amends the 1968 law to
update and clarify Federal privacy protections and standards in
light of dramatic changes in new computer and telecommunica­
tions technologies.
When the Framers of the Constitution acted to guard against the
arbitrary use of Government power to maintain surveillance over
citizens, there were limited methods of intrusion into the "houses,
91-010 O

2

papers, and effects" protected by the fourth amendment. During

the intervening 200 years, development of new methods of commu­

nication and devices for surveillance has expanded dramatically

the opportunity for such intrusions.

The telephone is the most obvious example. Its widespread use
made it technologically possible to intercept the communications of
citizens without entering homes or other private places. When the
issue of Government wiretapping first came before the Supreme
Court in Olmstead v. United States, 277 U.S. 438 (1928), the Court
held that wiretapping did not violate the fourth amendment, since
there was no searching, no seizure of anything tangible, and no
physical trespass.
Today, the Olmstead case is often remembered more for Justice
Brandeis' prescient dissent than for its holding. Justice Brandeis
predicted:
Ways may some day be developed by which the Govern­
ment, without removing papers from secret drawers, can
reproduce them in court, and by which it will be enabled
to expose to a jury the most intimate occurrences of the
home . . . Can it be that the Constitution affords no pro­
tection against such invasions of individual security?
Forty years later, the Supreme Court accepted Justice Brandeis'
logic in Katz v. United States, 389 U.S. 347 (1967), holding that the
fourth amendment applies to Government interception of a tele­
phone conversation. At the same time, the Court extended fourth,
amendment protection to electronic eavesdropping on oral conver­
sations in Berger v. New York, 388 U.S. 41 (1967).
Congress responded in a comprehensive fashion by authorizing
Government interception, under carefully subscribed circumstances
in title III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. 2510 et seq. Title III is the primary law protecting
the security and privacy of business and personal communications
in the United States today. Its regimen for protecting the privacy
of voice communications is expressly limited to the unauthorized
aural interception of wire or oral communications. It only applies
where the contents of a communication can be overheard and un­
derstood by the human ear. See United States v. New York Tele­
phone Company, 434 U.S. 159, 167 (1977). Furthermore, existing
title III applies only to interceptions of communications sent via
common carriers. 18 U.S.C. 2510(10).
As Senator Leahy said when he introducted S. 2575 with Senator
Mathias, the existing law is "hopelessly out of date." Congressional
Record, June 19, 1986. It has not kept pace with the development of
communications and computer technology. Nor has it kept pace
with changes in the structure of the telecommunications industry.
Today we have large-scale electronic mail operations, computerto-computer data transmissions, cellular and cordless telephones,
paging devices, and video teleconferencing.1 A phone call can be
carried by wire, by microwave or fiber optics. It can be transmitted
in the form of digitized voice, data or video. Since the divestiture of
1
These new forms of telecommunications and computer technology are described in the Glos­
sary below.

3

AT&T and deregulation, many different companies, not just
common carriers, offer a wide variety of telephone and other com­
munications services. It does not make sense that a phone call
transmitted via common carrier is protected by the current federal
wiretap statute, while the same phone call transmitted via a pri­
vate telephone network such as those used by many major U.S. cor­
porations today, would not be covered by the statute.
These tremendous advances in telecommunications and computer
technologies have carried with them comparable technological ad­
vances in surveillance devices and techniques. Electronic hardware
making it possible for overzealous law enforcement agencies, indus­
trial spies and private parties to intercept the personal or proprie­
tary communications of others are readily available in the Ameri­
can market today.
Title I of the Electronic Communications Privacy Act addresses
the interception of wire, oral and electronic communications. It
amends existing chapter 119 of title 18 to bring it in line with tech­
nological developments and changes in the structure of the tele­
communications industry.
The Committee also recognizes that computers are used exten­
sively today for the storage and processing of information. With
the advent of computerized recordkeeping systems, Americans have
lost the ability to lock away a great deal of personal and business
information. For example, physicians and hospitals maintain medi­
cal files in offsite data banks, businesses of all sizes transmit their
records to remote computers to obtain sophisticated data processing
services. These services as well as the providers of electronic mail
create electronic copies of private correspondence for later refer­
ence. This information is processed for the benefit of the user but
often it is maintained for approximately 3 months to ensure system
integrity. For the person or business whose records are involved,
the privacy or proprietary interest in that information should not
change. Nevertheless, because it is subject to control by a third
party computer operator, the information may be subject to no con­
stitutional privacy protection. See United States v. Miller, 425 U.S.
435 (1976) (customer has no standing to contest disclosure of his
bank records). Thus, the information may be open to possible
wrongful use and public disclosure by law enforcement authorities
as well as unauthorized private parties. The provider of these serv­
ices can do little under current law to resist unauthorized access to
communications.
Title II of S. 2575 addresses access to stored wire and electronic
communications and transactional records. It is modeled after the
Right to Financial Privacy Act, 12 U.S.C. 3401 et seq. to protect pri­
vacy interests in personal and proprietary information, while pro­
tecting the Government's legitimate law enforcement needs.
Title III of the bill addresses pen registers and trap and trace de­
vices.
II. HISTORY

In 1984, Senator Leahy asked the Attorney General whether he
believed interceptions of electronic mail and computer-to-computer
communications were covered by the Federal wiretap law. The

4

Criminal Division of the Justice Department responded that Feder­
al law protects electronic communications against unauthorized ac­
quisition only where a reasonable expectation of privacy exists. Un­
derscoring the need for this legislation, the Department concluded:
In this rapidly developing area of communications which
range from cellular non-wire telephone connections to
microwave-fed computer terminals, distinctions such as
[whether there does or does not exist a reasonable expecta­
tion of privacy] are not always clear or obvious.
Senator Leahy's letter and the Justice Department's response
mark the beginning of this legislation. The Subcommittee on Pat­
ents, Copyrights and Trademarks chaired by Senator Mathias, held
hearings in the 98th Congress. See, Hearing before the Subcommit­
tee on Patents, Copyrights and Trademarks of the Committee on
the Judiciary on Privacy and Electronic Communications, Septem­
ber 12, 1984, S. Hrg. 98-1266.
The product of that hearing and subsequent discussions with the
Department of Justice and private groups interested in promoting
communications privacy, while protecting legitimate law enforce­
ment needs and promoting technological innovation, was S. 1667,
the Electronic Communications Privacy Act of 1985. Senators
Leahy and Mathias introduced that bill on September 19, 1985. On
the same day, Congressmen Kastenmeier and Moorhead, the Chair­
man and Banking Minority Member of the House Judiciary Sub­
committee on Courts, Civil Liberties and the Administration of Jus­
tice introduced an identical bill, H.R. 3378.
In October 1985, the Office of Technology Assessment issued a
report entitled "Electronic Surveillance and Civil Liberties." That
study concluded that current legal protections for electronic mail
are weak, ambiguous, or non-existent," and that "electronic mail
remains legally as well as technically vulnerable to unauthorized
surveillance." "Federal Government Information Technology: Elec­
tronic Surveillance and Civil Liberties" (Washington, D.C.: U.S.
Congress, Office of Technology Assessment, OTA-CIT-293, October
1985).
The Subcommittee on Patents, Copyrights and Trademarks held
a hearing on S. 1667 on November 13, 1985. Testimony was re­
ceived from interested individuals and groups, including represent­
atives of the telephone industry, the electronic mail industry, and
the software and service industries. Representatives of the Depart­
ment of Justice presented their views, and the subcommittee also
received testimony from the American Civil Liberties Union and
elicited technical information from the Institute of Electrical and
Electronics Engineers.
As a result of those hearings, S. 1667 was superseded by a new
bill to reflect the concerns raised by some of these groups, particu­
larly the Department of Justice and radio hobbyists. On June 19,
1986, Senator Leahy, joined by Senator Mathias, introduced S.
2575.

On August 12, 1986, the Judiciary Committee Subcommittee on
Patents, Copyrights and Trademarks favorably reported S. 2575, as
amended, to the full Committee by voice vote.

5

On September 19, 1986, Senators Leahy and Mathias and Chair­
man Thurmond offered an amendment in the nature of a substi­
tute to S. 2575. The Committee voted unanimously to favorably
report the Electronic Communications Privacy Act of 1986, as
amended, to the full Senate.
III. STATEMENT

A letter sent by first class mail is afforded a high level of protec­
tion against unauthorized opening by a combination of constitu­
tional provisions, case law, and U.S. Postal Service statutes and
regulations. Voice communications transmitted via common carrier
are protected by title III of the Omnibus Crime Control and Safe
Streets Act of 1968.
But there are no comparable Federal statutory standards to pro­
tect the privacy and security of communications transmitted by
new noncommon carrier communications services or new forms of
telecommunications and computer technology. This is so, even
though American citizens and American businesses are using these
new forms of technology in lieu of, or side-by-side with, first class
mail and common carrier telephone services.
This gap results in legal uncertainty. It may unnecessarily dis­
courage potential customers from using innovative communications
systems. It probably encourages unauthorized users to obtain
access to communications to which they are not a party. It may dis­
courage American businesses from developing new innovative
forms of telecommunications and computer technology. The lack of
clear standards may expose law enforcement officers to liability
and may endanger the admissibility of evidence.
Most importantly, the law must advance with the technology to
ensure the continued vitality of the fourth amendment Privacy
cannot be left to depend solely on physical protection, or it will
gradually erode as technology advances. Congress must act to pro­
tect the privacy of our citizens. If we do not, we will promote the
gradual erosion of this precious right.
The Committee believes that S. 2575, te Electronic Communica­
tions Privacy Act of 1986, represents a fair balance between the
privacy expectations of American citizens and the legitimate needs
of law enforcement agencies.
The Justice Department strongly supports S. 2575 because it
strengthens the current wiretap law from a law enforcement per­
spective. Specifically, it expands the list of felonies for which a
voice wiretap order may be issued and the list of Justice Depart­
ment officials who may apply for a court order to place a wiretap.
The bill also includes provisions making it easier for law enforce­
ment officials to deal with a target who repeatedly changes tele­
phones to thwart interception of his communications and creates
criminal penalties for those who notify a target of a wiretap in
order to obstruct it. These provisions will be particularly helpful to
the Justice Department in its fight against drug trafficking.
The organizations and individual corporations named below also
support the principles embodied in the legislation.
Organizations: Electronic Mail Assoc.; ADAPSO; Telocator Net­
work of America; Cellular Telecommunications Industry Assoc;

6

ACLU; National Association of Manufacturers (NAM); U.S. Cham­
ber of Commerce; National Association of Broadcasters (NAB); Na­
tional Cable Television Assoc. (NCTA); National Association of
Business & Educational Radio (NABER); CBEMA; U.S. Telephone
Assoc.; Videotext Industry Assoc.; Information Industry Assoc;
Electronic Funds Transfer Assoc.; Radio and Television News Di­
rectors Assoc.; Association of American Railroads; Institute of Elec­
trical and Electronics Engineers (IEEE); Direct Marketing Associa­
tion; Utilities Telecommunications Council; and Associated Credit
Bureaus, Inc.
Corporations: AT&T; General Electric; IBM; GTE; EDS; ITT;
MCI; CBS; ABC; NBC; Tandy Corp. (Radio Shack); Trintex; Equifax;
TRW; Source Telecomputing Corporation; Chase Manhattan Bank;
Motorola; Ameritech; Bell Atlantic; Bell South; Southwestern Bell;
NYNEX; Pacific Telesis; US West; and Associated Credit Services,
Inc.
A few points in the development of the Electronic Communica­
tions Privacy Act of 1986 should be noted here. After Senators
Leahy and Mathias introduced the bill in June 1986, S. 2575 was
referred to the Subcommittee on Patents, Copyrights and Trade­
marks. During the subcommittee markup session held on August
12,1986, the bill was further amended to clarify certain provisions.
At the request of the FCC, in response to the recent Captain Mid­
night incident, in which an individual in Florida interfered with
the transmission of an HBO program being relayed by satellite, the
subcommittee included in the bill language to address deliberate or
malicious interference with satellite transmissions. It also added to
title III of the bill related to installation and use of pen registers,
procedural requirements for orders to use "trap and trace" devices.
In order to underscore that the inadvertent reception of a pro­
tected communication is not a crime, the subcommittee changed
the state of mind requirement under title III of the Omnibus Crime
Control and Safe Streets Act of 1968 from "willful" to "intention­
al." This change in the law addresses the concerns of radio scan­
ners that in the course of scanning radio frequencies in order to
receive public communications, one could inadvertently tune
through a protected communication like a cellular telephone call.
This provision makes clear that the inadvertent interception of a
protected communication is not unlawful under this Act.
During subcommittee consideration, Senators Laxalt, Grassley,
DeConcini and Simpson expressed concerns about the bill's penalty
structure for the interception of certain satellite transmissions by
home viewers. Senators Leahy and Mathias agreed that those con­
cerns would be addressed during Committee consideration of the
Electronic Communications Privacy Act.
The Leahy-Mathias-Thurmond substitute for S. 2575, which was
offered when the full Committee considered this legislation, incor­
porated an amendment offered by Senator Grassley. Senators
Laxalt, McConnell, Simpson and Denton cosponsored Senator
Grassley's amendment.
Senator Grassley's amendment modifies the criminal penalties
and civil liability provisions of chapter 119 of title 18 of the United
States Code so that there is a two-track, tiered penalty structure
for home viewing of private satellite transmissions when the con­

7

duct is not for a tortious or illegal purpose or for purposes of direct
or indirect commercial advantage or private commercial gain.
In a public action, under the Grassley amendment, a first offend­
er would be subject to a suit by the Government for injunctive
relief. If injunctive relief is granted, one who violates the injunc­
tion would be subject to the full panoply of enforcement mecha­
nisms within the court's existing authority, including criminal and
civil contempt. Second and subsequent offenses carry a mandatory
$50 civil fine for each violation. The term "violation" in this con­
text refers to each viewing of a private video communication.
In a private civil action, a person harmed by the private viewing
of such a satellite communication may sue for damages. If the de­
fendant has not previously been enjoined in a government action
as described above, and has not previously been found liable in a
civil suit, the plaintiff may recover the greater of his actual dam­
ages or statutory damages of $50 to $500. A second offender (one
who has been found liable in a prior private civil action or one who
has been enjoined in a government suit) is subject to liability for
the greater of actual damages or statutory damages of $100 to
$1,000. Third and subsequent offenders are subject to the bill's full
civil penalties.
The Grassley amendment also takes outside the penalty provi­
sions of the Electronic Communications Privacy Act, the intercep­
tion of a satellite transmission via audio subcarrier if the transmis­
sion is intended for redistribution to facilities open to the public,
provided that the conduct is not for the purpose of direct or indi­
rect commercial advantage or private financial gain. Audio subcar­
riers intended for redistribution to the public include those for re­
distribution by broadcast stations and cable and like facilities.
They also include those for redistributions to buildings open to the
public like hospitals and office buildings that pump in music which
has been transmitted via subcarrier. As specified in the substitute,
this audio subcarrier exclusion does not apply to data transmis­
sions or telephone calls.
The substitute amendment also incorporated Senator, Simon's
amendment. Senator Simon had expressed concern that the Elec­
tronic Communications Privacy Act s penalties were too severe for
the first offender, who without an unlawful or financial purpose,
intercepts a cellular telephone call or certain radio communica­
tions related to news-gathering.
Senator Simon's amendment reduces the penalty for such an
interception of an unencrypted, unscrambled cellular telephone
call to a $500 criminal fine. Unencrypted, unscrambled radio com­
munications transmitted on frequencies allocated under subpart D
of part 74 of the FCC rules are treated like private satellite video
communications are under Senator Grassley's amendment.
Scanning enthusiasts have argued to the Committee that the
mere monitoring of cellular telepnone calls should not be illegal.
That argument ignores three important realities. First, Congress,
in passing the 1968 wiretap law already made willful monitoring of
such telephone calls illegal when at least part of the conversation
is carried by wire. Second, unlike many signals which are more
commonly scanned, the design of the cellular telepnone system
makes the intentional monitoring of specific calls more difficult be­

8

cause they are handed off among cells. The Committee is not con­
vinced that these arguments overcome the need for protection of
privacy interests.
It has been suggested that the Federal Communications Commis­
sion consider labeling requirements on cellular telephnones, radio
scanning equipment and private satellite video communications.
The Commission might consider the feasibility of requiring that
cellular telephones be labeled to indicate that cellular calls are
radio-based communications, and as such, portions of the communi­
cation may be intercepted by available scanning equipment and of
requiring that scanning equipment be labeled to indicate that the
intentional interception of protected communications could be a
Federal criminal violation. Finally, the Commission might consider
the feasibility of requiring those who transmit private satellite
video communications to periodically transmit a crawl across the
bottom of the screen indicating that such communications are pro­
tected.
IV. GLOSSARY

For reference, some of the new telecommunications and comput­
er technologies referred to in the Electronic Communications Pri­
vacy Act of 1986 and this report are described briefly below. Treat­
ment of these and other technologies under current law is dis­
cussed in the House Report to its companion measure, H.R. 4952.
See House Report 99-647.
ELECTRONIC MAIL

Electronic mail is a form of communication by which private cor­
respondence is transmitted over public and private telephone lines.
In its most common form, messages are typed into a computer ter­
minal, and then transmitted over telephone lines to a recipient
computer operated by an electronic mail company. If the intended
addressee subscribes to the service, the message is stored by the
company's computer "mail box" until the subscriber calls the com­
pany to retrieve its mail, which is then routed over the telephone
system to the recipient's computer. If the addressee is not a sub­
scriber to the service, the electronic mail company can put the
message onto paper and then deposit it in the normal postal
system.
Electronic mail systems may be available for public use or may
be proprietary, such as systems operated by private companies for
internal correspondence.
COMPUTER-TO-COMPUTER COMMUNICATIONS

Common computer-to-computer communications include the
transmission of financial records or funds transfers among finan­
cial institutions, medical records between hospitals and/or physi­
cians' offices, and the transmission of proprietary data among the
various offices of a company.
ELECTRONIC BULLETIN BOARDS

Electronic "bulletin boards" are communications networks cre­
ated by computer users for the transfer of information among com­

9

puters. These may take the form of proprietary systems or they
may be noncommercial systems operating among computer users
who share special interests. These noncommercial systems may in­
volve fees covering operating costs and may require special "pass­
words" which restrict entry to the system. These bulletin boards
may be public or semi-public in nature, depending on the degree of
privacy sought by users, operators or organizers of such systems.
MICROWAVE

Microwave consists of extremely high frequency radio waves
transmitted point-to-point on line-of-sight paths between antennas
located on towers or building tops (in terrestrial microwave sys­
tems) and between satellites and earth station "dish" antennas (in
satellite-based systems).
CELLULAR TELEPHONES

In 1981 the Federal Communications Commission approved "the
use of cellular telephone services. This technology uses both radio
transmission and wire to make "portable" telephone service avail­
able in a car, a briefcase, or in rural areas not reached by tele­
phone wire.
In a cellular radiotelephone system, large service areas are divid­
ed into honeycomb-shaped segments or cells"—each of which is
equipped with a low-power transmitter or base station which can
receive and radiate messages within its parameters. When a caller
dials a number on a cellular telephone, a transceiver sends signals
over the air on a radio frequency to a cell site. From there the
signal travels over phone lines or a microwave to a computerized
mobile telephone switching office ("MTSO") or station. The MTSO
automatically and inaudibly switches the conversation from one
base station and one frequency to another as the portable tele­
phone, typically in a motor vehicle, moves from cell to cell.
Cellular technology, because it is more complex, is more difficult
to intercept than traditional mobile telephones; it is, however,
more accessible than microwave transmissions. Cellular telephone
calls can be intercepted by either sophisticated scanners designed
for that purpose, or by regular radio scanners modified to intercept
cellular calls.
CORDLESS TELEPHONES

A cordless telephone consists of a handset and a base unit wired
to a landline and a household/business electrical current. A com­
munication is transmitted from the handset to the base unit by
AM or FM radio signals. From the base unit the communication is
transmitted over wire, the same as a regular telephone call. The
radio portions of these telephone calls can be intercepted, with rela­
tive ease using standard AM radios.
ELECTRONIC PAGERS

Electronic pagers are radio activated devises through which a
user is notified of another's attempt to contact the carrier of the
portable paging unit. These are in wide use among persons who are
away from their homes or offices—or, more precisely, away from

10

telephones or two-way radios—yet still need to be reachable by
others.
Pagers take on one of three basic forms: "tone only," "display"
and "tone and voice pagers." The "tone only" device emits a
"beep" or other signal to inform the user that a message is wait­
ing, and where that message can be retrieved by the user's making
a phone call to a predetermined number (usually an office or an­
swering service). "Display" pagers are equipped with screens that
can display visual messages, usually the telephone number of the
person seeking to reach the person being paged. The party seeking
to make contact with the user is instructed to provide a message,
usually by pushing the buttons of a touch-tone telephone; this mes­
sage is stored by the paging company's computer until it can be
transmitted to the user's pager, where the message can then be
read directly by the user, obviating the need for the user to make a
telephone call to retrieve the message. The most sophisticated type
of pager is the "tone and voice" model. It can receive a spoken
message that the paging company's computer has taken from the
party seeking to contact the unit's user. After the beep tone is
made, the device "repeats" the recorded message. This requires
that a radio signal containing voice communications be sent from
the paging company's base to the mobile unit.
PEN REGISTERS/TRAP AND TRACE DEVICES

Pen registers are devices that record the telephone numbers to
which calls have been placed from a particular telephone. These
capture no part of an actual telephone conversation, but merely
the electronic switching signals that connect two telephones. The
same holds true for trap and trace devices, which record the num­
bers of telephones from which calls have been placed to a particu­
lar telephone.
ELECTRONIC TRACKING DEVICES (TRANSPONDERS)

These are one-way radio communication devices that emit a
signal on a specific radio frequency. This signal can be received by
special tracking equipment, and allows the user to trace the geo­
graphical location of the transponder. Such "homing" devices are
used by law enforcement personnel to keep track of the physical
whereabouts of the sending unit, which might be placed in an auto­
mobile, on a person, or in some other item.
REMOTE COMPUTER SERVICES

In the age of rapid computerization, a basic choice has faced the
users of computer technology. That is, whether to process data in­
house on the user's own computer or on someone else's equipment.
Over the years, remote computer service companies have developed
to provide sophisticated and convenient computing services to sub­
scribers and customers from remote facilities. Today businesses of
all sizes—hospitals, banks and many others—use remote computing
services for computer processing. This processing can be done with
the customer or subscriber using the facilities of the remote com­
puting service in essentially a time-sharing arrangement, or it can
be accomplished by the service provider on the basis of information

11
supplied by the subscriber or customer. Data is most often trans­
mitted between these services and their customers by means of
electronic communications.
V. SECTION-BY-SECTION ANALYSIS

Section 1 provides that the short title of the bill is the "Electron­
ic Communications Privacy Act of 1986."
TITLE I—INTERCEPTION OF COMMUNICATIONS AND RELATED MATTERS

Under current law, the interception of wire and oral communica­
tions are governed by chapter 119 of title 18 (18 U.S.C. 2510 et seq.).
Title I of the Electronic Communications Privacy Act expands
chapter 119 to take into account modern advances in electronic
telecommunications and computer technology.
Section 101—Federal penalties for the interception of communica­
tions
Definitions for terms used in chapter 119 and new chapter 121 of
title 18 are set out in section 101 of the bill. This section also de­
scribes conduct which is not unlawful under this Act and modifies
the penalties set out in existing section 2511 of title 18. It provides
that the remedies in chapter 119 are the exclusive statutory reme­
dies for violations of this chapter. Technical amendments to chap­
ter 119 are also included in Section 101 of the bill.
Subsection 101(a)—Definitions
Subsection 101(a) of the Electronic Communications Privacy Act
sets out the definitions and amendments to definitions used in
chapter 119 and new chapter 121 of title 18. Paragraph 101(a)(1)
amends the definition of the term "wire communication in subsec­
tion 2510(1) of title 18.
Subparagraph (A) amends that definition to include aural trans­
fers. As defined in proposed subsection 2510(18) of title 18, "aural
transfers" are those which include the human voice at any point
between and including the points of origin and reception.
Subparagraph (B) specifies that the use of wire, cable or other
similar connections for the transmission of communications in­
cludes the use of such connections in a switching station. This sub­
paragraph makes clear that cellular communications—whether
they are between two cellular telephones or between a cellular
telephone and a "land line" telephone—are included in the defini­
tion of "wire communications" and are covered by the statute. As
noted below, the bill distinguishes between cordless and cellular
telephones.
Recognizing that since deregulation and the divestiture of AT&T,
many different companies, not just common carriers, offer and use
telephone and other communications services, subpargraph (C) de­
letes from the definition of "wire communication" the requirement
that communications must be transmitted via common carrier to
be covered by the federal wiretap statute.
Subparagraph (D) specifies that wire, cable or similar connec­
tions furnished or operated by any person engaged in providing or
operating such facilities for the transmission of "communications

12

affecting interstate or foreign commerce," are within the definition
of a "wire communication. This language recognizes that private
networks and intra-company communications systems are common
today and brings them within the protection of the statute. Howev­
er, that language is not meant to suggest that the Electronic Com­
munications Privacy Act applies to interceptions made outside the
territorial United States. Like the Omnibus Crime Control and
Safe Streets Act of 1968 which it revises, the Electronic Communi­
cations Privacy Act regulates only those interceptions conducted
within the territorial United States.
The Senate Judiciary Committee's Subcommittee on Patents,
Copyrights and Trademarks amended subparagraph (D) to specify
that wire communications in storage like voice mail, remain wire
communications, and are protected accordingly.
The combined effect of subparagraphs (A) through (D) is to clari­
fy that the term "wire communication" means the transfer of a
communication which includes the human voice at some point. The
transfer must be made in whole or in part through the use of com­
munication transmission facilities by the aid of wire, cable, or
other like connection, including fiber optics. The facilities may be
furnished or operated by any person engaged in providing or oper­
ating such facilities for the transmission of interstate or foreign
communications or he may provide or operate those facilities for
the transmission of communications affecting interstate or foreign
commerce.
Thus, a wire communication encompasses the whole of a voice
telephone transmission even if part of the transmission is carried
by fiber optic cable or by radio—as in the case of cellular tele­
phones and long distance satellite or micowave facilities. The con­
version of a voice signal to digital form for purposes of transmis­
sion does not render the communication non-wife. The term "wire
communication" includes existing telephone service, and digitized
communications to the extent that they contain the human voice
at the point of origin, reception, or some point in between. A pri­
vate telephone system established by a company whose activities
affect interstate commerce, would also be covered.
It should be noted that an improperly mechanical reading of the
phrase "in whole or in part * * * by the aid of wire * * *" could
sweep in virtually all voice communications made with the aid of
any electronic equipment, inasmuch as virtually all such equip­
ment includes in its assembly some length of wire or the equiva­
lent. The quoted is intended to refer to wire that carries the com­
munication to a significant extent from the point of origin to the
point of reception, even in the same building. It does not refer to
wire that is found inside the terminal equipment at either end of
the communication.
Subparagraph (D) specifies that the term "wire communication"
does not include the radio portion of a cordless telephone communi­
cation transmitted between the cordless handset and the base unit.
Because communications made on some cordless telephones can be
intercepted easily with readily available technologies, such as an
AM radio, it would be inappropriate to make the interception of
such a communication a criminal offense. The wire portion of a
cordless communication remains fully covered, however.

13

Section 101(a)(2) of the Electronic Communications Privacy Act
amends the definition of "oral communication" in current section
2510(2) of title 18 to exclude electronic communications. There have
been cases involving radio communications in which the court
having determined that the radio communication was not a wire
communication then analyzes it in privacy terms to determine if it
is an oral communication. The bill rejects that analysis by exclud­
ing electronic communications from the definition of oral commu­
nications.
An oral communication is an utterance by a person under cir­
cumstances exhibiting an expectation that the communication is
not subject to interception, under circumstances justifying such an
expectation. In essence, an oral communication is one carried by
sound waves, not by an electronic medium.
Section 101(a)(3) of the Electronic Communications Privacy Act
amends the definition of the term "intercept" in current section
2510(4) of title 18 to cover electronic communications. The defini­
tion of "intercept" under current law is retained with respect to
wire and oral communications except that the term "or other" is
inserted after "aural." This amendment clarifies that it is illegal to
intercept the non-voice portion of a wire communication. For exam­
ple, it is illegal to intercept the data or digitized portion of a voice
Communication.

Subsection 101(a)(4) of the Electronic Communications Privacy
Act amends existing section 2510(5) of title 18 to clarify that tele­
phone equipment provided by the user and connected to the facili­
ties of a service provider is not an "electronic, mechanical or other
device," provided that it is used in the ordinary course of the user's
business.
The Committee notes that proposed section 2510's definition of
an "electronic, mechanical or other device" includes any combina­
tion of parts designed or intended for use in converting those parts
into such a device or apparatus and from which such a device or
apparatus may be readily assembled. The Committee also notes
that section 2512, as amended by the Electronic Communications
Privacy Act, prohibits the manufacture, distribution, possession,
and advertising only of devices primarily useful for surreptitious
interception.
Subsection 101(a)(5) of the Electronic Communications Privacy
Act amends current section 2510(8) of title 18 to exclude from the
definition of the term "contents," the identity of the parties or the
existence of the communication. It thus distinguishes between the
substance, purport or meaning of the communication and the exist­
ence of the communication or transactional records about it.
The Supreme Court has clearly indicated that the use of pen reg­
isters does not violate either chapter 119 of title 18 or the fourth
amendment. Subsection 101(a)(5) of this legislation makes that
policy clear. It should be read in conjunction with Title III of the
Electronic Communications Privacy Act which adds new chapter
206 on pen registers and trap and trace devices to title 18. Subsec­
tion 101(a)(5) of the bill does not affect the installation or use of
pen registers under the Foreign Intelligence Surveillance Act
(FISA), 50 U.S.C. 1801 et. seq. Similarly, the omission of a conform­
ing amendment to the definition of "contents" in section 705 of

14

title 47 is not intended to affect the current law under that section
with respect to pen registers. The use of pen registers has been
found not to violate section 705. See Hodge v. Mountains Tel. &
Telegraph Co., 555 F.2d 254 (9th Cir. 1977).
Subsection 101(a)(6) of the Electronic Communications Privacy
Act adds to section 2510 of title 18 definitions for the terms "elec­
tronic communication," "electronic communications system," "elec­
tronic communication service," "readily accessible to the general
public," "electronic storage," and "aural transfer."
An "electronic communication" is defined in proposed subsection
2510(12) of title 18 as "any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in
whole or in part by a wire, radio, electromagnetic, photoelectronic
or a photooptical system that affects foreign or interstate com­
merce." The following are explicitly excluded from the definition:
(A) the radio portion of a cordless telephone communication trans­
mitted between the cordless phone handset and the base unit; (B)
any wire or oral communication; (C) any communication made
through a tone-only paging device; (D) any communication from a
tracking device.
As a general rule, a communication is an electronic communica­
tion protected by the federal wiretap law if it is not carried by
sound waves and cannot fairly be characterized as containing the
human voice. Communications consisting solely of data, for exam­
ple, and all communications transmitted only by radio are electron­
ic communications. This term also includes electronic mail, digi­
tized transmissions, and video teleconferences. Although radio com­
munications are within the scope of the Act, the provisions of the
Electronic Communications Privacy Act directed specifically to
radio do not affect the applicability of section 705 of the Communi­
cations Act of 1934, as amended, to actions by members of the
public.
Under proposed subsection 2510(13), the term "user" is defined
as any person or entity who (A) uses an electronic communication
service and (B) is duly authorized by the service provider to do so.
An "electronic communication system" is defined in proposed
subsection 2510(14). Such a system encompasses any wire, radio,
electromagnetic, photooptical or photoelectronic facilities for the
transmission of electronic communications as well as any computer
facilities or related electronic equipment for the electronic storage
of such communications.
An "electronic communication service" is defined in proposed
subsection 2510(15) of title 18 as a service which provides its users
the ability to send or to receive wire or electronic communications.
Such services can be provided through the same facilities. Existing
telephone companies and electronic mail companies are providers
of electronic communication services. Other services like remote
computing services may also provide electronic communication
services.
Radio communications "readily accessible to the general public"
are defined in proposed subsection 2510(16). Radio communications
are considered readily accessible to the general public unless they
fit into one of five specified categories.

15

As described below, subsection 101(b) of the Electronic Communi­
cations Privacy Act provides an exception to the general prohibi­
tions on interception for electronic communications which are con­
figured to be readily accessible to the general public. Thus, the
radio communications specified in proposed subsection 2510(16) are
afforded privacy protections under this legislation unless another
exception applies.
As specified in paragraph (A) of proposed subsection 2510(16),
scrambled or encrypted radio communications are not readily ac­
cessible to the general public. The terms are used in their technical
sense. To "encrypt" or to "scramble" means to convert the signal
into unintelligible form by means intended to protect the contents
of a communication from unintended recipients. Methods which
merely change the form of a plaintext message, e.g., a device which
converts an analog signal to a digital stream, does not provide "en­
cryption" within the meaning of this bill. Nor does the use of a
word code, no matter how sophisticated, amount to scrambling or
encryption. Examples of scrambling techniques which are currently
available include the data encryption standard (DES).
As specified in paragraph (B) radio communications transmitted
through modulation techniques whose essential parameters have
been withheld from the public in order to preserve the privacy of
the communication are not readily accessible to the general public.
This paragraph (B) refers to spread spectrum radio communica­
tions. Spread spectrum technology usually involves the transmis­
sion of a signal on different frequencies where the receiving station
must possess the necessary algorythm in order to reassemble the
signal.
As specified in paragraph (C) of proposed subsection 2510(16) of
title 18, radio communications carried on a subcarrier or other
signal subsidiary to a radio transmission are protected by the Elec­
tronic Communications Privacy Act. This category includes, for ex­
ample, data and background music services carried on FM subcar­
riers. It also includes data carried on the Vertical Blanking Inter­
val (VBI) of a television signal.
Radio communications transmitted over a system provided by a
common carrier are not readily accessible to the general public
with one exception. That exception is for tone-only paging systems.
As a result of that exception, the interception of tone-only paging
system transmissions will not be prohibited by this law. However,
the unauthorized interception of a display paging system, which in­
vovles the transmission of alphanumeric characters over the radio,
carried by a common carrier, is illegal.
As specified in proposed paragraph (E), radio communications
transmitted on frequencies allocated under parts 25 and 94 and
subparts D, E, an F of part 74 of the FCC rules are protected by the
Electronic Communications Privacy Act. These communications in­
clude satellite communications, auxiliary broadcast services and
private microwave services, each of which routinely carries private
business or personal communications. Two-way voice radio commu­
nications made on frequencies shared with services outside part 74
are expressly excluded from this category of protected communica­
tions.

16

The liability incurred under chapter 119 for the interception of
the communications described in proposed paragraph 2510(16(E)
may be limited. Section 101(b) of the Electronic Communications
Privacy Act sets out exceptions from liability under this Act with
respect to electronic communications and section 101(d) establishes
the penalty structure for violations of this Act.
The term "electronic storage" is defined in proposed subsection
2510(17) of title 18. Electronic storage means (A) the temporary, in­
termediate storage of a wire or electronic communication inciden­
tal to its transmission as well as (B) the storage of such communi­
cation by an electronic communications service for backup protec­
tion. The term covers storage within the random access memory of
a computer as well as storage in any other form including storage
of magnetic tapes, disks or other media. Thus, for example, section
2701's prohibitions against unauthorized access to wire or electron­
ic communications while they are in electronic storage would pro­
hibit unauthorized access to such a communication while it is
stored on magnetic tape or disk. The section 2701 prohibitions simi­
larly would apply to information held on magnetic tape or disk
pursuant to an agreement to provide remote computing services.
The last new definition in subsection 101(a)(6) of the Electronic
Communications Privacy Act is the definition of an "aural trans­
fer" in proposed subsection 2510(18). An aural transfer means any
transfer containing the human voice at any point between and in­
cluding the points of origin and reception. Under this definition,
voice messages transferred over a paging system are protected. It is
intended that computer-generated or otherwise artificial voices are
not included in this definition and thus will not be part of a "wire
communication." They would, however, be part of an "electronic
communication."
It is important to recognize that a transaction may consist, in
part, of both electronic communications and wire or oral communi­
cations as those terms are defined in section 2510 of title 18, as
amended by the Electronic Communications Privacy Act. Accord­
ingly, different aspects of the same communication might be char­
acterized differently. For example, the transmission of data over
the telephone is an electronic communication. If the parties use the
line to speak to one another between data transmissions, those
communications would be wire communications. At the same time,
for a person overhearing one end of the telephone conversation by
listening in on the oral utterances of one of the parties, those utter­
ances are oral communications.
Although this bill does not address questions of the application of
title III standards to video surveillance and only deals with the
interception of closed circuit television communications to a limited
extent, closed circuit television communications do provide another
example of the importance of, and the interrelationship between,
the definitions contained in this legislation. If a person or entity
transmits a closed circuit television picture of a meeting using
wires, microwaves or another method of transmission, the trans­
mission itself would be an electronic communication. Interception
of the picture at any point without either consent or a court order
would be a violation of the statute. By contrast, if law enforcement
officials were to install their own cameras and create their own

17
closed circuit television picture of a meeting, the capturing of the
video images would not be an interception under the statute be­
cause there would be no interception of the contents of an electron­
ic communication. Intercepting the audio portion of the meeting
would be an interception of an oral communication, and the statute
would apply to that portion.
Section 101(b)—Exceptions with respect to electronic communica­
tions
Subsection 2511(1) of title 18 of the United States Code sets out
prohibitions against the interception, disclosure and use of wire or
oral communications. Subsection 2511(2) specifies conduct which is
not unlawful under chapter 119 of title 18.
Subsection 101(b) of the Electronic Communications Privacy Act
amends Subsection 2511(2). Paragraph 101(b), consistent with other
provisions of this legislation, deletes references to common carriers.
It thus clarifies that any service provider who discloses the exist­
ence of an interception or surveillance or the device used to accom­
plish the interception or surveillance would be liable for civil dam­
ages under Section 2520 of title 18.
Paragraph 101(b)(2) of the Electronic Communications Privacy
Act amends section 2511(2)(d) of title 18 by striking out "or for the
purpose of committing any other injurious act". Under current
Federal law it is permissible for one party to consent to the inter­
ception of a conversation unless that interception is for illegal, tor­
tious or other injurious purposes such as blackmail. In numerous
court cases the term "other injurious purposes" has been miscon­
strued. Most troubling of these cases have been attempts by parties
to chill the exercise of first amendment rights through the use of
civil remedies under this chapter. For example, in Boddie v. Ameri­
can Broadcasting Co., 731 F.2d 333 (6th Cir. 1984), the plaintiff,
whose conversations were recorded by a journalist, sued. Despite
the consent of the reporter who was a party to the conversation,
the plaintiff claimed that the recording of the conversation was il­
legal because it was done for an improper purpose, to embarrass
her. While the appeals court decision in Boddie merely sent the
case back for further factual development, it is clear from the facts
of the case that the term "improper purpose" is overly broad and
vague. The court's opinion suggests that if the network intended to
cause "insult and injury" to plaintiff Boddie, she might be entitled
to recover. This interpretation of the statute places a stumbling
block in the path of even the most scrupulous journalist. Many
news stories have been brought to light by recording a conversation
with the consent of ony one of the parties involved—often the jour­
nalist himself. Many news stories are embarrassing to someone.
The present wording of section 2511(2)(d) not only provides such a
person with a right to bring suit, but it also makes the actions of
the journalist a potential criminal offense under section 2511, even
if the interception was made in the ordinary course of responsible
news-gathering activities and not for the purpose of committing a
criminal act or a tort. Such a threat is inconsistent with the guar­
antees of the first amendment. Inasmuch as chapter 119 as amend­
ed by the Electronic Communications Privacy Act continues to pro­
hibit interceptions made for the purpose of committing either a

S.Rept. 99-541-----2

18

crime or a tort (including defamation), the public will be afforded
ample portection against improper or unscrupulous interception.
Subsection 101(b)(3) of the Electronic Communications Privacy
Act amends section 2511(2)(f) of title 18 to clarify that nothing in
chapter 119 as amended or in proposed chapter 121 affects existing
legal authority for U.S. Government foreign intelligence activities
involving foreign electronic communications systems. The provision
neither enhances nor diminishes existing authority for such activi­
ties; it simply preserves the status quo. It does not provide author­
ity for the conduct of any intelligence activity.
Further the Senate expects that the practice of providing to the
House and Senate Intelligence Committees proposed changes in rel­
evant executive branch procedures and regulations governing the
conduct of intelligence activities, including those involving elec­
tronic surveillance, physical searches, and the minimization of in­
formation collected concerning U.S. persons will be continued. As
in the past, the Senate expects that any relevant changes in these
procedures and regulations will be provided to the Senate and
House Intelligence Committees prior to their taking effect.
Finally, since Congress last addressed the issue of privacy com­
munications in a comprehensive fashion, the technologies of com­
munication and interception have changed dramatically, and are
expected to continue to do so. These factors have raised serious
issues about the protection of the privacy interests of U.S. citizens,
which are of great concern to the Senate and to the American
people. For this reason, the Senate wishes to emphasize the obliga­
tion of the heads of intelligence agencies to continue to keep the
Select Committee on Intelligence fully and currently informed of
all intelligence activities pursuant to title V of the National Securi­
ty Act of 1947.
Subsection 101(b)(4) of the Electronic Communications Privacy
Act amends section 2511(2)(g) of title 18 of the United States Code.
It sets out new exemptions from criminal liability applicable to the
technologies which this legislation adds to the privacy protections
of the federal wiretap law. Proposed section 2511(2)(g) provides that
it shall not be unlawful under chapters 119 or 121 of title 18 for
any person to engage in the conduct described in its five subpara­
graphs.
Under proposed section 2311(2)(g)(i), it is permissible to intercept
electronic communications made through an electronic communica­
tion system configured so that the conmmunication is "readily ac­
cessible to the general public." That term is defined with respect to
radio communications in proposed section 210(16) of title 18. The
term "configure" is intended to establish an objective standard of
design configuration for determining whether a system receives
privacy protection.
Under this provision, it would not be unlawful to intercept subcarrier and UBI communications that are transmitted for the use
of the general public. Such "public" communications would include
the stereo subcarrier used in FM broadcasting or data carried on
the VBI to provide closed-captioning of TV programming for the
hearing-impaired.
Under proposed section 2511(g)(ii) it is permissible to intercept
any radio communication which is transmitted (I) by any station

19

for the use of the general public, or that relate to ships, aircraft,
vehicles or persons in distress; (II) by any government, law enforce­
ment, civil defense, private land mobile or public safety communi­
cations system (including police and fire), that is readily accessible
to the general public; (III) by a station operating on an authorized
frequency within the bands allocated to amateur, citizens band or,
general mobile radio services; or (IV) by any marine or aeronauti­
cal communications system.
Traditionally, these radio communications have been free from
prohibitions on mere interception. Amateur radio communications,
including those utilizing telephone interconnect or amateur radio
computer linked message systems are certainly not those to which
this legislation is aimed. All amateur radio communications con­
ducted on radio frequencies allocated to the Amateur Radio Serv­
ices are exempt from this bill's prohibitions against the intercep­
tion of electronic communications.
Radio services readily accesible to the general public are exempt
from this act's prohibitions against interception by the generic ex­
ception contained in proposed paragraph 2511(2)(g)(i).
Proposed section 1511(2)(g)(iii) addresses conduct which is either
prohibited or permitted by the Communications Act of 1934, as
amended. Under clause (I) of subparagraph (iii) it is not unlawful
under chapter 119 or 121 of title 18 for any person to engage in
conduct prohibited by section 633 of the Communications Act of
1934 relating to cable piracy. If an individual violates the criminal
prohibitions in section 633 of the Communications Act, he cannot
also be charged under chapters 119 or 121 of title 18.
Clause (II) exempts from the prohibitions on interception con­
tained in this Act conduct which is excepted from section 705(a) of
the Communications Act by virtue of section 705(b) of that Act.
Thus, if conduct is permitted under section 705(b) of the Communi­
cations Act, engaging in that conduct would not be a crime under
chapters 119 or 121 of title 18, as amended by the Electronic Com­
munications Privacy Act. Determination of whether conduct is per­
mitted under section 705(b) must, of course, be the result of an ex­
amination of the statute, relevant legislative history, existing court
interpretations and constructions given the statute by appropriate
federal regulatory entities.
Proposed section 2511(2)(g)(iv) of title 18 exempts from the crimi­
nal prohibition contained in chapters 119 and 121 of that title, the
interception of any wire or electronic communication the transmis­
sion of which is causing harmful interference to any lawfully oper­
ating station, to the extent necessary to identify the source of such
interference.
Finally, proposed section 2511(2)(g)(v) exempts interceptions of
radio communication by other users of the same frequency when
such communication is made through a system that utilizes fre­
quencies monitored by individuals engaged in the provision or use
of such a system. This exemption clarifies that it is not unlawful
for users of the same frequency, who must listen to be sure a chan­
nel is clear before using it, to do so. The exception applies to users
of common and non-common carrier systems, but does not apply if
the communication is scrambled or encrypted.

20

Subsection 101(b)(4) of the Electronic Communications Privacy
Act amends subsection 2511(2) of title 18 to add a new paragraph
(h) to that subsection. Proposed subparagraph (i) of paragraph (h)
clarifies that the use of pen registers and trap and trace devices
are not regulated by chapter 119 of title 18. The use of those de­
vices will be regulated by new chapter 206 of title 18 as amended
by the Electronic Communications Privacy Act.
Subparagraph (ii) of paragraph (h) states that no violation of this
chapter occurs if a provider of wire or electronic communication
service records the fact that a communication was initiated or com­
pleted in order to protect such provider, another provider furnish­
ing service toward the completion of the wire or electronic commu­
nication or a user of that service, from fraudulent, unlawful or
abusive use of such a service. This provision permits the electronic
and wire communication providers to protect themselves and their
customers.
Subsection 101(c)—Technical and conforming amendments
Subsection (c) sets out technical and conforming amendments to
chapter 119 of title 18. Paragraph (c)(1) adds "electronic communi­
cation" in appropriate places throughout the chapter. Paragraph
(c)(2) amends the heading of the chapter. Paragraph (c)(3) amends
the table of chapters to add electronic communications to the table.
Paragraphs (4), (5), (6), (7), and (8) of subsection 101(c) of the Elec­
tronic Communications Privacy Act make appropriate technical
amendments to delete the term "common carrier" and substitute
in its place "provider of wire or electronic communication."
Section 2511(2)(a)(i), as amended, specifies that it is not unlawful
for the employees of providers of wire or electronic communication
services to intercept, disclose or use customer communications in
the normal course of employment while engaged in any activity
which is a necessary incident to the rendition of the service or to
the protection of the rights or property of the provider, except that
a provider of wire communication service to the public shall not
utilize service observing or random monitoring except for mechani­
cal or service quality checks.
In applying the second clause only to wire communications, this
provision reflects an important technical distinction between elec­
tronic communications and traditional voice telephone service. The
provider of electronic communications services may have to moni­
tor a stream of transmissions in order to properly route, terminate,
and otherwise manage the individual messages they contain. These
monitoring functions, which may be necessary to the provision of
an electronic communication service, do not involve humans listen­
ing in on voice conversations. Accordingly, they are not prohibited.
In contrast, the traditional limits on service "observing" and
random "monitoring" do refer to human aural interceptions and
are retained with respect to voice or "wire" communications.
Subsection 101(d)—Penalties modification
Subsection 101(d) of the Electronic Communications Privacy Act
modifies the general penalty structure for violations of this chap­
ter. It sets out proposed subsections (4) and (5) of section 2511 of
title 18. Subsection (4) sets out the criminal penalties for violations

21

of subsection 2511(1). Subsection (5) outlines the injunctive relief
available to the federal government in the case of specified conduct
related to private satellite video communications that are not
scrambled or encrypted and to communications transmitted on fre­
quencies allocated under subpart D of part 74 of the FCC rules that
are not scrambled or encrypted.
The general rule as set out in proposed paragraph 2511(4)(a) is
that a violation is punishable as a 5-year felony. Unless one of the
exceptions in proposed subsection 2511(4)(b) or subsection 2511(5)
applies, a person violating section 2511(1) will be liable for a fine
under this chapter, imprisonment up to 5 years, or both. The fines
under the chapter are set by section 3623 of title 18. That section
provides for a different maximum fine level for felonies or misde­
meanors resulting in death. Individual defendants can be fined up
to $250,000 and organizations can be fined up to $500,000.
As stated in proposed paragraph 2511(14)(b), the first exception to
the general rule that violations are 5-year felonies, applies to un­
scrambled, unencrypted radio communications provided that the
conduct is a first offense and is not for a tortious or illegal purpose
or purposes of direct or indirect commerical advantage or private
financial gain. If the radio communication is scrambled or encrypt­
ed, if the person violating the statute has been found guilty of a
prior offense, or if his conduct was for one of the enumerated bad
purposes, the conduct remains punishable as a 5-year felony.
As stated in subparagraph (ii) of proposed paragraph 2511(4)(b),
for first offenders whose conduct was not for one of the enumerated
bad purposes, if the communication is not scrambled or encrypted
and it is the radio portion of a cellular telephone, public land
mobile radio service or paging service communication, then the vio­
lator will be subject to a $500 criminal fine. Otherwise, as stated in
clause (i) of proposed paragraph 2511(4)(b), the conduct is punish­
able as a one-year misdemeanor with fines of up to $100,000, 18
U.S.C. 3623, unless the conduct is that described in subsection (5).
It should be noted that the exceptions set out in proposed para­
graph 2511(4)(b) apply only to radio communications. The intercep­
tion of "wire" communications remain punishable as five-year felo­
nies. The interception of the wire portion of a cellular telephone
call, for example, is a five-year felony.
Proposed paragraph 2511(4)(c) decriminalizes certain conduct
unless it is for the purposes of direct or indirect commercial advan­
tage or private financial gain. The terms "direct or indirect com­
mercial advantage or private financial gain" are intended to have
the same meaning as those terms have when they are used in 47
U.S.C. 705(b).
This exception from the criminal provisions of the Electronic
Communications Privacy Act applies to the interception of an un­
encrypted, unscrambled satellite transmission that is transmitted
(i) to a broadcasting station for purposes of retransmission to the
general public; or (ii) as an audio subcarrier intended for redistri­
bution to facilities open to the public, but not including data trans­
missions or telephone calls. The conduct described in subpara­
graphs (i) and (ii) is not an offense under this chapter and is not
subject to civil liability under this chapter.

22

Subparagraph (i) decriminalizes the interception of "network
feeds" under title 18. Such conduct will be governed exclusively by
section 705 of the Communications Act (47 U.S.C. 705).
Subparagraph (ii) decriminalizes the interception of material
transmitted as an audio subcarrier provided that the information is
intended for redistribution to facilities open to the public. Audio
subcarriers intended for redistribution to facilities open to the
public include those for redistribution by broadcast stations, cable
TV systems and like facilities. They also include those for redistri­
bution to buildings open to the public, and thus, it would not be
unlawful to intercept music transmitted via an audio subcarrier if
it is intended for redistribution to buildings like hospitals and
office buildings which pump music into their lobbies and other
public areas.
Subparagraph (ii) does not apply to data transmissions or tele­
phone calls. The interception of those transmissions, like the inter­
ception of transmissions made for the enumerated bad purposes,
would be punishable as 5-year felonies.
The private viewing of satellite cable programming, network
feeds and certain audio subcarriers will continue to be governed ex­
clusively by section 705 of the Communications Act of 1934, as
amended, and not by chapter 119 of title 18 of the United States
Code.
A new government action for injunctive relief is set out in pro­
posed subsection 2511(5) of title 18. This new subsection was cre­
ated to underscore that this public injunctive
is distinct
from the criminal penalties set out in subsection (4).
Its exceptions apply only if the communication is not scrambled
or encrypted and the conduct is not for one of the enumerated bad
purposes. Clause (A) refers to the private or home viewing of a pri­
vate satellite video communication. With regard to the home view­
ing of private satellite video communications, for purposes of this
provision and proposed section 2520,2 the Committee views as
scrambling that type of multiplexing in which the audio and
video portions of a communication are split, requiring special
equipment to reassemble the whole communication (generally a vid­
eoteleconference) before it can be received in intelligible form.
Clause (B) refers to radio communications transmitted on frequen­
cies allocated under subpart D of part 74 of the FCC rules.
Under proposed clause 2511(5)(a)(ii)(A), if the violation is a first
offense and the person has not previously been found liable in a
private civil action under section 2520 of title 18, the government
may sue for appropriate injunctive relief. Under proposed clause
(B) if the violation is a second or subsequent offense or the person
has previously been found liable under section 2520, he shall be
subject to a mandatory $500 civil fine.
Proposed paragraph (b) of subsection 2511(5) clarifies that the
court may use any means within its existing authority, including
civil or criminal contempt, to enforce an injunction issued to an in­
dividual under this subsection. Paragraph (b) also requires that the
court impose a civil fine of $500 or more for each violation of such
2
Multiplexing refers to the transmission of communications by means of modulation tech­
niques whose essential parameters have been withheld from the public.

23

an injunction. The term "violation" in this context refers to each
viewing of a private video communication and to each reception of
a part 74 D radio communication.
Subsection 101(e)— Exclusivity of remedies with respect to electronic
communications
Subsection 101(e) of the Electronic Communications Privacy Act
amends subsection 2518(10) of title 18 to add a paragraph (c) which
provides that with respect to the interception of electronic commu­
nications, the remedies and sanctions described in this chapter are
the only judicial remedies and sanctions available for nonconstitu­
tional violations of this chapter involving such communications. In
the event that there is a violation of law of a constitutional magni­
tude, the court involved in a subsequent trial will apply the exist­
ing Constitutional law with respect to the exclusionary rule.
The purpose of this provision is to underscore that, as a result of
discussions with the Justice Department, the Electronic Communi­
cations Privacy Act does not apply the statutory exclusionary rule
contained in title III of the Omnibus Crime Control and Safe
Streets Act of 1968 to the interception of electronic communica­
:
tions.
Similarly, the Electronic Communications Privacy Act does not
amend the Communications Act of 1934. Conduct in violation of
that statute, will continue to be governed by that statute.
Subsection 101(f)—State of mind
Subsection 101(f) of the Electronic Communications Privacy Act
changes the state of mind required to violate section 2511 or sec­
tion 2512 of title 18 of the United States Code from "willful" to "in­
tentional." The purpose of this amendment is to underscore that
inadvertent interceptions are not crimes under the Electronic Com­
;
munications Privacy Act.
.
As used in the Electronic Communications Privacy Act, the term
"intentional" is narrower than the dictionary definition of "inten­
tional." "Intentional" means more than that one voluntarily en­
gaged in conduct or caused a result. Such conduct or the causing of
the result must have been the person's conscious objective. An "in­
tentional" state of mind means that one's state of mind is inten­
tional as to one's conduct or the result of one's conduct if such con­
duct or result is one's conscious objective. The intentional state of
mind is applicable only to conduct and results. Since one has no
control over the existence of circumstances, one cannot "intend"
them.
As indicated in the Judiciary Committee's report to accompany
the Criminal Code Reform Act of 1981 (S. 1630):
The highest degree of culpability is present if a person

engages in conduct (or causes a result) intentionally, that

is, "if it is his conscious objective or desire to engage in the

conduct (or cause the result)." A common means to de­

scribe conduct as intentional, or to say that one causes the

result intentionally, is to state that it is done or accom­

plished "on purpose."

24

The term "intentional" is not meant to connote the ex­
istence of a motive. Liability for intentionally engaging in
prohibited conduct is not dependent on an assessment of
the merit of the motive that led the person to disregard
the law. (Emphasis in original; citation omitted.) Report of
the Committee on the Judiciary, United States Senate, to
accompany S. 1630, Criminal Code Reform Act of 1981,
Report 97-307 at 67.
The Committee went on to point out that people who steal be­
cause they like to or to get more money or to feed the poor, like
Robin Hood, all commit the same crime. Id. The word "intentional"
describes the mental attitude associated with an act that is being
done on purpose. It does not suggest that the act was committed for
a particular evil purpose.
At this point, it is important to note that the crime of intercep­
tion under the Electronic Communications Privacy Act consists of
the intentional acquisition of the contents of a wire, electronic or
oral, communication through the use of any electronic, mechanical,
or other device. Some groups which engage in testing were con­
cerned that the picking up of the contents of a communication inci­
dent to those tests might be considered a crime under title III as
amended by the Electronic Communications Privacy Act.
They then sought exemptions from liability under proposed para­
graph 2511(2)(g). The Subcommittee on Patents, Copyrights and
Trademarks rejected this approach solely because it feared applica­
tion of the principle of statutory construction of "expressio unius,
est exclusio alterius" would encourage courts to treat similar tests
as unlawful.
For example, since the early 1960s, motor vehicle manufacturers
and others have been committed to voluntary actions to make their
products "good citizens" in the electromagnetic environment. That
commitment has fostered the development of test procedures and
programs resulting in systems to help ensure that the electromag­
netic energy radiated from equipment such as motor vehicles, agri­
cultural and construction machinery, engines for transportation,
marine, industrial and consumer applications, electronic equipment
and components of the foregoing do not interfere with signals car­
rying video, voice or data transmissions. Personal, business and en­
tertainment radio, television, digital data communications, and
radio navigation services are examples of services benefited by
such test procedures and programs.
The equipment for measuring the test procedures and technical
specifications by which electromagnetic radiation from motor vehi­
cles typically includes an antenna for picking up electromagnetic
energy radiated from the vehicle, and a radio receiver for scanning
the frequency range from 20 or 30 to 1,000 MHz to determine the
field strength of all emissions in that range which the antenna
picks up.
The antenna picks up not only the electromagnetic emissions
from the equipment being tested, but also any other signals present
at the antenna location. Indeed, to be able to quantify the strength
of the emissions to be measured, even though additional signals are
present at the frequency on which the measurement is being made,

25

the procedures and programs specify initial measurement of these
additional signals. Of course, any radio service operating in the
scanned frequency range will be picked up and its field strength
measured during both the baseline and the vehicle tests. Although
occasionally a speaker will be used to verify that a radio service is
indeed producing a high field strength reading, in virtually all of
the testing there is not attempt to ascertain the substance, purport
or meaning of the signal.
Similar equipment and procedures are used to measure electro­
magnetic radiation emitted by computing devices. In addition, the
operation of electronic equipment, and devices equipped with elec­
tronic controls, may be susceptible to disruption by electromagnetic
radiation impinging on such equipment or devices. For example,
the operation of electronic engine controls, electronic speed con­
trols, and anti-lock brake systems employing electronic controls,
and even the operation of heart pacemakers, are potentially sus­
ceptible to disruption by strong electromagnetic radiation.
To help design equipment and devices which are resistant to
such disruption, such equipment and devices customarily are irra­
diated during their development with electromagnetic engery at a
variety of radio frequencies, and the effects, if any, of such irradia­
tion on their operation are observed. To avoid interference with on­
going radio services, it is essential that the test engineer, before
turning on the radio transmitter used for such irradiation; listen
on the transmitter frequency to ascertain that there is no other
signal on that frequency with which the test transmission might
interfere.
In addition, both the EPA and the FCC have pointed out that
Federal agencies and state and local governments are currently ad­
dressing the problem of potentially excessive public exposure to
radio frequency (RF) radiation emitted by various kinds of equip­
ment. Testing solely to determine the source of, or to measure, RF
emissions in order to comply with or to establish or enforce appli­
cable federal, state or local standards limiting human exposure to
RF radiation is not prohibited by the Electronic Communications
Privacy Act.
This legislation was never intended to outlaw such testing, con­
ducted in the ordinary course of the tester's business or regulatory
activities. However, if one who obtained information in the course
of such a test went beyond the procedures of the test to use any
information obtained through the testing process, he could violate
this statute.
Section 102—Requirements for certain disclosures
Section 102 of this legislation amends section 2511 of title 18 of
the United States Code to add a new criminal prohibition on disclo­
sure of electronic communications. It adds a new subsection (3) to
section 2511. This amendment includes the term "to the public."
The Government is included as part of the public. Thus, FTS serv­
ices are covered.
The language in paragraph (a) of proposed subsection 2511(3) of
title 18 provides that 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

26

or entity, or an agent thereof) while in transmission on that service
to any person or entity other than an addressee or intended recipi­
ent of such communication or the agent of such addressee or in­
tended recipient.
Proposed paragraph (b) of new subsection 2511(3) of title 18 sets
out exceptions to paragraph (a)'s criminal prohibition on disclosure.
Providers of electronic communication services to the public are
permitted to divulge the contents of any such communication (i) as
otherwise authorized in section 2511(2)(a) or 2517 or title 18; (ii)
with the lawful consent of the originator or any addressee or in­
tended recipient; (iii) to any person employed or authorized, or
whose facilities are used, to forward such communication to its des­
tination, 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.
The exceptions to the divulgence bar are relatively straightfor­
ward. Providers should be permitted to divulge under other provi­
sions of the chapter. To be consistent with the one party consent
exception found in the chapter, a similar exception is appropriate
here. It is also logical to provide an exception with respect to ac­
tivities necessary and intrinsic to the communication activity.
Therefore, it is necessary to exempt communication intermediaries.
Finally, if an electronic communications service provider inad­
vertently obtains the contents of a communication during transmis­
sion and the communication appears to relate to the commission of
a crime, divulgence is permitted when such divulgence is made to a
law enforcement agency. If the provider purposefully sets out to
monitor conversations to ascertain whether criminal activity has
occurred, this exception would not apply.
Section 103—Recovery of civil damages
Section 103 of the Electronic Communications Privacy Act
amends existing section 2520 of title 18 of the United States Code
to incorporate violations involving interception, disclosure or inten­
tional use of wire, oral, or electronic communications.
Proposed subsection 2520(a) of title 18 authorizes the commence­
ment of a civil suit. There is one exception. A civil action will not
lie where the requirements of section 2511(2)(a)(ii) of title 18 are
met. With regard to that exception, the Committee intends that the
following procedural standards will apply:
(1) The complaint must allege that a wire or electronic com­
munications service provider (or one of its employees): (a) dis­
closed the existence of a wiretap; (b) acted without a facially
valid court order or certification; (c) acted beyond the scope of
a court order or certification or (d) acted on bad faith. Acting
in bad faith would include failing to read the order or collu­
sion. If the complaint fails to make any of these allegations,
the defendant can move to dismiss the complaint for failure to
state a claim upon which relief can be granted.
(2) If during the course of pretrial discovery the plaintiffs
claim proves baseless, the defendant can move for summary
judgment.
(3) If the court denies the summary judgment motion, the
case goes to trial. At the close of the plaintiffs case, the de­

27

fendant again can move for dismissal. If that motion is denied,
the defendant then has the opportunity to present to the jury
its section 2520 good faith defense.
The plaintiff may bring a civil action under section 2520 whether
or not the defendant has been subject to a criminal prosecution for
the acts complained of, but in the absence of such prosecution and
conviction, it is the plaintiffs burden to establish that the require­
ments of this section are met.
Proposed subsection 2520(b) indicates that appropriate relief in a
civil action can include: (1) preliminary and other equitable or de­
claratory relief as may be appropriate; (2) damages under subsec­
tion (c) and punitive damages in appropriate cases; and (3) a rea­
sonable attorney's fee and other reasonable litigation costs.
Proposed subsection 2520(c) provides a method for the computa­
tion of damages. The general rule is set out in paragraph (2) of sub­
section (c). The court may assess damages consisting of whichever
is the greater of (A) the sum of the plaintiffs actual damages and
any profits the violator made as a result of the violation; or (B)
statutory damages of whichever is the greater of $100 a day or
$10,000.
An exception from that general rule is set out in proposed para­
graph (1) of subsection 2520(c). This exception applies if the viola­
tion consists of the private or home viewing of an unencrypted or
unscrambled private satellite video communication or if the com­
munication is an unencrypted or unscrambled radio communica­
tion that is transmitted on frequencies allocated under subpart D
of part 74 of the FCC rules, and the conduct is not for one of the
enumerated bad purposes.
Under subparagraph (A), if the violator has not previously been
enjoined in a government action under subsection 2511(5) and has
not been found liable in a prior civil action, the court shall assess
the greater of the sum of the plaintiffs actual damages or statuto­
ry damages of $50 to $500. Under subparagraph (B), if the violator
is a second offender (one who has been found liable in a prior pri­
vate civil action under section 2520 or one who has been enjoined
in a government suit), the court shall assess the greater of the sum
of the plaintiffs actual damages or statutory damages of $100 to
$1000. Third and subsequent offenders are subject to the bill's full
civil penalties as described in the general rule set out in proposed
paragraph 2520(c)(2).
Subsection 2520(d) provides a good faith defense for those who
comply with court orders or warrants, grand jury subpoenas, legis­
lative or statutory authorizations, or a request of an investigative
or law enforcement officer under section 2518(7) of title 17 concern­
ing emergency situations. As used in this subsection, the term
"good faith" includes the receipt of a facially valid court order. The
fact that the provider of a wire or electronic communication service
received a facially valid court order means that the provider would
be entitled to a dismissal of a civil action upon a showing that he
acted within the scope of that order.
Proposed subsection 2520(e) sets out the statute of limitations for
actions brought under this section. Actions may not be commenced
more than 2 years after the date on which the claimant first has a
reasonable opportunity to discover the violation.

28

Section 104—Certain approvals by justice department officials
Section 104 of the Electronic Communications Privacy Act
amends section 2516(1) of title 18 of the United States Code to add
to the list of Federal officials who may make applications for court
orders under chapter 119. Under this amendment, the list of offi­
cials who may be specially designated by the Attorney General to
authorize applications will include any acting Assistant Attorney
General, or any Deputy Assistant Attorney General in the Crimi­
nal Division. The addition of an acting Assistant Attorney General
is not meant to imply rejection in any other context of the wellestablished principle that an acting official ordinarily possesses all
the legal powers of the official for whom he is acting, but to clarify
the law under this statute.
As indicated in proposed subsection 111(c) of the Electronic Co­
munications Privacy Act, this section 104 shall take effect on the
date of enactment.
Section 105—Addition of offenses to crimes for which interception is
authorized
Section 105 of the Electronic Communications Privacy Act
amends existing section 2516 of title 18 to add to the list of felonies
for which a wiretap or bugging order may be obtained under chap­
ter 119. It also adds a new subsection (3) to section 2516 which ad­
dresses applications and orders for interceptions of electronic com­
munications.
'
Subsection 105(a)—Offenses for which wire and oral interceptions
are authorized
Subsection 105(a) of the legislation amends subsection 2516(1) of
title 18 by adding to the list of predicate felonies for which an ap­
plication for a wiretapping or bugging order may be made. Those
crimes are set out in the bill.
Subsection 105(b)—Offenses for which interception of electronic com­
munication are authorized
Subsection 105(b) of the Electronic Communications Privacy Act
amends section 2516 to authorize the Government to apply for a
court order authorizing or approving the interception of an elec­
tronic communication by an investigative or law enforcement offi­
cer when an interception may provide or has provided evidence of
a Federal felony. Thus, for non-wire, non-oral electronic communi­
cations, a different and less restrictive list of crimes can be used to
justify an application for interception.
The Department of Justice has advised the Committee on the Ju­
diciary that for the three years which follow the date of enactment
of this legislation, this authority will only be exercised pursuant to
the approval of the same level of officials as those involved in the
approval of applications for wire interceptions. In addition to this
voluntary regulatory limitation, the Department of Justice has
committed itself to submitting to the relevant congressional com­
mittees any proposed changes in these regulations at least 90 days
in advance of any change.

29

Section 106—Applications, orders, and implementation of orders
Section 106 of the Electronic Communications Privacy Act
amends section 2518 of title 18 of the United States Code. This sec­
tion addresses the implementation of interception orders, reim­
bursement for providers who assist law enforcement agencies in
carrying out an interception order and minimization requirements.
Subsection 106(d) of the legislation permits law enforcement agen­
cies to request an order for a "roving tap" under certain limited
circumstances.
Telephone companies have, as a matter of practice, provided in­
formation and technical assistance to law enforcement officials in
connection with lawfully authorized wiretaps. They have steadfast­
ly maintained, however, an important distinction between such
technical assistance and any active participation in the wiretap
itself.
Section 2518(4) of title 18 is a codification of the cooperative
working relationship that exists between telephone companies and
law enforcement officials. This section anticipates that these gov­
ernment officials will, and should, seek the cooperation of tele­
phone companies in accomplishing telephone line interceptions.
Nevertheless, telephone company customers have a reasonable
expectation, traditionally enhanced by telephone company prac­
tices and policies, that their company will not become in effect, a
branch of Government law enforcement. Accordingly, while techni­
cal assistance is provided and paid for, the Committee wishes to
make clear that Section 2518(4) is not intended to authorize and
should not be construed as authorizing, issuance of an order for
land line telephone company assistance which either requires a
company to actually accomplish or perform a wiretap or requires
that law enforcement wiretap activity take place on land line tele­
phone company premises.
The Committee understands that some cellular service providers
may have cooperated with law enforcement officials to establish
wiretap connections on the cellular service provider's premises.
The Committee does not intend to alter this specific form of assist­
ance.
The Committee understands that the practice followed with
regard to land line telephones is that telephone company employ­
ees do not perform the wiretap itself, and that telephone company
premises are not used for wiretap activity. This procedure is ac­
cepted by both company and law enforcement officials. The Com­
mittee does not expect any departure from current practice.
To ensure that the practice does not change, absent a compelling
need appropriately addressed to Congress, the Committee expects
the Justice Department to include in its United States Attorneys
Manual a statement that no enforcement agency or official shall
attempt to compel any telephone company employee to perform
any wiretap, or attempt to compel any such company to make its
premises available for wiretap activity. Any proposed amendment
to that language should be reported to the Committee well in ad­
vance of dissemination so that the Committee has sufficient oppor­
tunity to assess both the extent of which such proposed language
comports with its view of the scope of section 2518(4) as expressed

30

above and the extent to which any amendment of section 2518(4) to
permit a change in prevailing practice may be warranted by subse­
quent and compelling changes in technology or other circum­
stances.
Subsection 106(a)—Place of authorized interception
Subsection 106(a) of the Electronic Communications Privacy Act
amends subsection 2518(3) of title 18. It provides, that in the case of
a mobile interception device, a court can authorize an order withinits jurisdiction and outside its jurisdiction but within the United
States. This provision applies to both a listening device installed in
a vehicle and to a tap placed on a cellular or other telephone in­
strument installed in a vehicle.
In most cases, courts will authorize the installation of a device
and the device will be installed within the court's jurisdiction, but
the suspect will subsequently move outside that jurisdiction. In cer­
tain cases, however, a device authorized for installation in an auto­
mobile may be authorized in one district and the vehicle might be
moved to another district prior to installation. Subsection 106(a) of
the bill permits installation in the district to which the vehicle has
been moved.
Nothing in this subsection affects the current law with regard to
the use of such devices outside the United States.
Subsection 106(b)—Reimbursement
Subsection 106(b) of the Electronic Communications Privacy Act
establishes that service providers that provide assistance t o the
agency carrying out an interception order may be compensated for
reasonable expenses incurred in providing such facilities or assist­
ance. This is designed to permit reimbursement at an amount ap­
propriate to the work required. In most cases, a flat or general rate
will be appropriate, but this change in the existing law will permit
flexibility by authorizing reimbursement at a higher level in un­
usual cases.
Subsection 106(c)—Minimization
This subsection makes two changes in section 2518(5) of title 18.
Under existing law, no section 2518 interception order may extend
longer than 30 days. Paragraph (1) of subsection 106(c) provides a
rule for establishing when the 30 days to install a tap or a bug
begins to run. Under this rule, the 30-day time period commences
on the earlier of the day on which the officer first begins to con­
duct the interception, or 10 days after the order is entered.
Paragraph (2) of this subsection of the Electronic Communica­
tions Privacy Act provides a special minimization rule for inter­
cepted communications that are in code or in a foreign language. If
an expert in that foreign language or code is not reasonably avail­
able during that interception period, minimization may be accom­
plished as soon as practicable after the interception. In this regard,
it is contemplated that the translator or decoder will listen to the
tapes of an interception and make available to the investigators
the minimized portions preserving the rest for possible court perus­
al later.

31

Paragraph (2) also provides that the monitoring of interceptions
under this chapter may be conducted in whole or in part by Gov­
ernment personnel, or by individuals operating under contract with
the Government, as long as such personnel are acting under the su­
pervision of an investigative or law enforcement officer authorized
to conduct the interception. This change, which was sought by the
Federal Bureau of Investigation, is designed to free field agents
from the relatively routine activity of monitoring interceptions so
that they can engage in other law enforcement activities.
The Committee recognizes that although the statutory standards
for minimizing wire, oral, and electronic communications are the
same under proposed subsection 2518(5), the technology used to
either transmit or intercept an electronic message such as electron­
ic mail or a computer data transmission ordinarily will not make it
possible to shut down the interception and taping or recording
equipment simultaneously in order to minimize in the same
manner as with a wire interception. It is impossible to "listen" to a
computer and determine when to stop listening and minimize as it
is possible to do in listening to a telephone conversation. For in­
stance, a page displayed on a screen during a computer transmis­
sion might have five paragraphs of which the second and third are
relevant to the investigation and the others are not. The printing
technology is such that the whole page including the irrelevant
paragraphs, would have to be printed and read, before anything
can be done about minimization.
Thus, minimization for computer transmissions would require a
somewhat different procedure than that used to minimize a tele­
phone call. Common sense would dictate, and it is the Committee's
intention, that the minimization should be conducted by the initial
law enforcement officials who review the transcript. Those officials
would delete all non-relevant materials and disseminate to other
officials only that information which is relevant to the investiga­
tion.
Subsection 106(d)—Roving taps
This subsection of the Electronic Communications Privacy Act
adds a new subsection (11) to section 2518 of title 18. Under current
law, the application and the order for a bug or tap must indicate
the "particular" facility or place in which the interception is to
occur. Subsection 106(d) of this legislation sets out new rules for
the specificity required in the description of the place where the
interceptions of wire and oral communications are to occur. The
Committee finds such a provision necessary to cover circumstances
under which law enforcement officials may not know, until shortly
before the communication, which telephone line will be used by the
person under surveillance. Telephone companies assist law enforce­
ment officials by providing cable and pair information, or leased
line facilities when requested and feasible: this is the information
which will be provided to law enforcement for roving taps.
In the case of both oral and wire communications, only a limited
list of Federal officials can apply for a special order seeking relief
under this provision.
With regard to "oral" communications, as set out in paragraph
(a) of proposed subsection 2518(11), an application for a special

32

order must contain a full and complete statement as to why the or­
dinary specification requirements are not practical. The application
must also identify the person committing the offense and whose
communications are to be intercepted. The judge must find that
the ordinary specification rules are not practical. Situations where
ordinary specification rules would not be practical would include
those where a suspect moves from room to room in a hotel to avoid
a bug or where a suspect sets up a meeting with another suspect on
a beach or a field. In such situations, the order would indicate au­
thority to follow the suspect and engage in the interception once
the targeted conversation occurs.
The rule with respect to "wire communications" is somewhat
similar. As indicated in paragraph (b), the application must show
that the person committing the offense has a purpose to thwart
interception by changing facilities. In these cases, the court must
find that the applicant has shown that such a purpose has been
evidenced by the suspect. An example of a situation which would
meet this test would be an alleged terrorist who went from phone
booth to phone booth numerous times to avoid interception. A
person whose telephone calls were intercepted who said that he or
she was planning on moving from phone to phone or to pay phones
to avoid detection also would have demonstrated that purpose.
Proposed subsection 2518(12) of title 18 provides, with respect to
both wire" and "oral" communications, that where the federal
government has been successful in obtaining a relaxed specificity
order, it cannot begin the interception until the facilities or place
from which the communication is to be intercepted is ascertained
by the person implementing the interception order. In other words,
the actual interception could not begin until the suspect begins or
evidences an intention to begin a conversation.
It would be improper to use this expanded specificity order to tap
a series of telephones, intercept all conversations over such phones
and then minimize the conversations collected as a result. This pro­
vision puts the burden on the investigation agency to ascertain
when the interception is to take place.
The Subcommittee on Patents, Copyrights and Trademarks
added a provision to proposed subsection 2518(12) allowing a service
provider to move the court to modify or quash the order on the
grounds that it cannot provide assistance in a timely or reasonable
manner. As indicated, on notice to the Government, the court must
decide such a motion expeditiously.
This provision recognizes that a telephone company may not be
able to respond instantaneously to an eleventh hour target line
designation. It is designed to account for the practicalities of tele­
phone company response time, the number of phones that may be
covered by the order, and the geographic area of the target lines
that may be used by the person under surveillance.
The Committee intends that the court look to several factors in
considering whether to issue an order pursuant to proposed para­
graph (11)(b). The request for the order, and the order itself, should
specify a reasonably limited geographic area, the number of phones
(and phone numbers) if known, to be intercepted—so as not to
render telephone company cooperation technically infeasible—and
the time within which the interception is to be accomplished. The

33

failure to make such specifications in the request and/or in the
order may be considered evidence of unreasonableness or untimeli­
ness by a court acting upon a telephone company motion made pur­
suant to proposed subsection (12).
The Committee also expects law enforcement officials to continue
the current practice of consulting with telephone company employ­
ees regarding the details of implementation (such as phone num­
bers and the specific locations of the telephones) in advance of the
time any order for interception is sought.
Finally, subsection 106(d) of the Electronic Communications Pri­
vacy Act provides that reports to the Administrative Office of the
United States Courts under current section 2519 of title 18 on the
kind of order or extension applied for include whether or not the
order was one applied for under the relaxed specifity provisions of
subsection 2518(11).
Section 107—Intelligence activities
Subsection (a) of this section of the bill clarifies that the amend­
ments made in subsection 102(b) of the bill do not provide any new
authority for intelligence activities but only represent an exemp­
tion from the coverage of this chapter and chapter 121 of title 18
for activities that are otherwise lawful.
Subsection (b) of this section of the bill exempts communications
security monitoring activities of the Federal Government otherwise
in accordance with U.S. law and undertaken in accordance with
procedures approved by the Attorney General from coverage under
chapter 119 or 121 of title 18. This subsection provides no new au­
thority for such activities.
Specifically this subsection exempts from the coverage of this act
the lawful activities of Federal agencies intended to intercept en­
crypted or other official communications for communications secu­
rity purposes. Communications security measures are protective
measures taken to deny unauthorized persons information derived
from U.S. Government telecommunications and to ensure the au­
thenticity of such communications. Communications security pro­
tection is the application of security measures to electrical systems
generating, handling, processing, or using information the loss of
which could adversely affect the national interest. Monitoring of
security measures and security protection includes the intentional
interception of executive branch official communications, including
the communications of certain Government contractors, to provide
technical material for analysis to determine the degree of security
being provided to these transmissions. In addition, the interception,
by authorized Federal agencies, of radio communications between
foreign powers or agents as defined by the Foreign Intelligence
Surveillance Act of 1978, and the accessing of electronic communi­
cations systems used exclusively by a foreign power as defined by
the Foreign Intelligence Surveillance Act of 1978, are exempted
from coverage of this act by this subsection of the bill.
Section 108—Mobile tracking devices
Subsection (a) of this section of the bill adds a new section to
chapter 205 of title 18. This new code section provides that if a
court is empowered to issue a warrant or other order for the instal-

S.Rept. 99-541

3

34

lation of a mobile tracking device, and the tracking of the object or
person on which the device is installed, such warrant remains valid
even if the device is moved outside the jurisdiction of the court,
even outside the jurisdiction of the United States, provided that the
device was installed within the jurisdiction of the court, in con­
formity with the court order. This clarification does not effect cur­
rent legal standards for the issuance of such an order.
A tracking device is defined as an electronic or mechanical
device which permits the tracking of the movement of a person or
object.
Subsection (b) adds a new section 3117, "Mobile tracking devices"
to the table of contents of chapter 205.
Section 109—Warning subject of surveillance
The section amends section 2232 of title 18 by adding at the end
a new subsection. Proposed subsection 2232(c) adds two new of­
fenses to title 18. First, it makes it a criminal act punishable by a
fine under this title and/or imprisonment for not more than 5
years to warn any person that a Federal agency or law enforce­
ment officer has been authorized or has sought authorization under
chapter 119 of title 18 to intercept a wire, oral, or electronic com­
munication. Second, the proposed subsection provides the same
penalties for warning anyone that a Federal officer has been au­
thorized or has applied for authorization to conduct electronic sur­
veillance under the provisions of the Foreign Intelligence Surveil­
lance Act.
The elements of both new crimes are the same. It is required
that the defendent have knowledge that the Federal law enforce­
ment or investigative officer has been authorized or has applied for
an interception order. The defendent need not know that such an
application was made under a particular chapter of federal law,
rather, only that such application or order was made under federal
law. The defendent must engage in conduct of giving notice of the
possible interception to any person who was or is the target of the
interception. Finally, the defendents action must have been under­
taken with the specific intent to obstruct, impede or prevent the
interception. The offense also includes an attempt to engage in the
offense.
Section 110—Injunctive remedy
This section of the act sets out a proposed section 2521 of title 18.
Section 2521 adds to the existing criminal and civil remedies avail­
able for violations of this chapter by authorizing the Attorney Gen­
eral to seek an injunction to prevent felony level violations of this
chapter. Section 2521 also provides that preliminary relief can be
granted to prevent a continuing and substantial injury to the
United States or to any person for whose protection the action is
brought. Actions under section 2521 are governed by the Federal
Rules of Civil Procedure, except that when an indication has been
returned against the respondent, discovery is governed by the Fed­
eral Rules of Criminal Procedure.

35

Section 111—Effective date
Subsection (a) provides that in general the amendments made by
this act are effective 90 days after enactment, and that the act ap­
plies only with respect to court orders or extensions made after the
effective date. Thus existing court orders would not be affected by
these changes and on-going investigations would not be hindered,
but any extention of an existing court order made 90 days after
passage would be governed by these new provision.
Subsection (b) provides a special rule for the effective date in the
case of state authorizations of interceptions. This special effective
date rule is necessary because the provisions of chapter 119 of title
18 supersede state laws with respect to electronic communications.
Under chapter 119, the states must enact statutes which are at
least as restrictive as the provisions of chapter 119 before they can
authorize their state courts to issue interception orders. Because of
the substantial changes made by this act it is appropriate to grant
the states sufficient time to modify their laws. This special effective
date rule gives the states two years to amend their laws to meet
the new requirements of chapter 119.
Subsection (c) provides that section 104 of the act is effective
upon enactment. Section 104 modifies Justice Department proce­
dures for approval of requests under this chapter, since section. 104
is designed to alleviate management difficulties at the Department
of Justice there is no reason to delay implementation of these
changes.
TITLE II—STORED WIRE AND ELECTRONIC COMMUNICATIONS AND

TRANSACTIONAL RECORDS ACCESS

Section 201—Title 18 amendment
This section amends title 18 by adding at the end thereof a new
chapter 121 consisting of ten new sections. These sections are dis­
cussed below.
New section 2701—Unlawful access to stored communications

Subsection (a) of this new section creates a criminal offense for
either intentionally accessing, without authorization, a; facility
through which an electronic communication service is provided, or
for intentionally exceeding the authorization for accessing that fa­
cility. Subsection 2701, also provides that the offender must obtain,
alter, or prevent authorized access to a wire or electronic communi­
cation while it is in electronic storage in such an electronic storage
system in order to commit a violation under the subsection. :The
term "electronic storage" is defined in section 2510(17) of title 18
and includes both temporary, intermediate storage of a wire or
electronic communication incidental to the transmission of the
message, and any storage of such a communication by the electron­
ic communication service for purposes of backup protection of the
communication.
This provision addresses the growing problem of unauthorized
persons deliberately gaining access to, and sometimes tampering
with, electronic or wire communications that are not intended to
be available to the public.

36

This subsection does not prevent broad authorizations to the gen­
eral public to access such a facility. The bill does not for example
hinder the development or use of "electronic bulletin boards" or
other similar services where the availability of information about
the service, and the readily accessible nature of the service are
widely known and the service does not require any special access
code or warning to indicate that the information is private. To
access a communication in such a public system is not a violation
of the Act, since the general public has been "authorized" to do so
by the facility provider.
However, the offense of intentionally exceeding an authorization
to access a computer facility would apply both to public and private
aspects of a system. For example, a computer mail facility author­
izes a subscriber to access information in their portion of the facili­
ties storage. Accessing the storage of other subscribers without spe­
cific authorization to do so would be a violation of this provision.
Similarly, a member of the general public authorized to access the
public portion of a computer facility would violate this section by
intentionally exceeding that authorization and accessing the pri­
vate portions of the facility.
Subsection (b) of this new section provides punishment for viola­
tion of subsection (a). A distinction is drawn between offenses com­
mitted for purposes of commercial advantage, malicious destruction
or damage, or for private commercial gain and all other types of
violation. If the offense is committed for private or commercial
gain or for malicious destruction the subsection provides a fine of
not more than $250,000 or imprisonment for not more than one
year, or both, for a first offender. Second and subsequent offenders
are subject to the same fine provision but a jail term up to two
years can be imposed for such violations. In all other cases the fine
is limited to not more than $5,000 and imprisonment for not more
than 6 months or both.
Subsection (c) of this new section provides exceptions to the viola­
tions contained in subsection (a). It is not a violation of subsection
(a) if the conduct was authorized by the person or entity providing
the wire or communications service, or if the conduct was author­
ized by the user of that service with respect to communications of
or intended for that user or if the conduct is authorized by new sec­
tions 2703, 2704, or 2518 or title 18.
New section 2702—Disclosure of contents
Proposed section 2702 is divided between electronic communica­
tion services and remote computing services. The restrictions on
the service provider are the same in each instance. However, as de­
scribed below, there is different treatment for electronic communi­
cation service providers and remote computing services with regard
to government access.
Subsection (a) of this new section prohibits the provider of an
electronic communications service or the provider of a remote com­
puting service from knowingly divulging the contents of any com­
munication. The "contents of a communication has the same
meaning in this section as it has in subsection 2510(8) of title 18 or
the United States Code as amended by section 101(a)(5) of this Act.
The requirement that a violator must "knowingly" divulge the con­

37

tents is intended to make clear that "reckless" or "negligent" con­
duct is not sufficient to constitute a violation of this section. Sub­
section (b) of this section provides exceptions to this general rule of
non-disclosure.
The application of new code section 2702(a) generally prohibits
the provider of a wire or electronic communication service to the
public from knowingly divulging the contents of any communica­
tion while in electronic storage by that service to any person other
than the addressee or intended recipient. Similarly, section 2511(3)
of title 18, as amended by this Act, prohibits such a provider from
divulging the contents of a communication while it is in transmis­
sion. Neither provision, however, nor any other provision in the
Act, is intended to affect any other provision of federal law that
prohibits the disclosure of information on the basis of the content
of the information, such as the Fair Credit Reporting Act.
The application of sections 2701(a) and 2511(3) is limited to pro­
viders of wire or electronic communications services. There are in­
stances, however, in which a person or entity both acts as a provid­
er of such services and also offers other services to the public. In
some such situations, the bill may allow disclosure while another
federal requirement, applicable to the person or entity in another
of its roles, prohibits disclosure. The Committee intends that such
instances be analyzed as though the communication services and
the other services were provided by distinct entities. Where a com­
bined entity in its non-provider role would not be allowed to dis­
close, the appropriate outcome would be non-disclosure.
Subsection (b) of this new section provides exceptions to the gen­
eral rule of nondisclosure provided in subsection (a). These excep­
tions permit disclosure: (1) to the addressee or intended recipient of
the communication or the authorized agent of such addressee or in­
tended recipient; (2) in conformity with a court order issued pursu­
ant to the procedures in section 2516 of title 18; or in the course of
normal business practice as defined in section 2511(2)(a) of this
title; or to the government under procedures of new section 2703;
(3) with the lawful consent of the sender or the addressee or an in­
tended recipient of such communication or with the consent of the
subscriber in the case of a remote computing service; (4) to a
person employed or authorized or whose facilities are used to for­
ward the communication to its ultimate destination; (5) as neces­
sary in order to render the service or to protect the rights or prop­
erty of the provider of the service: of (6) to a law enforcement
agency, if the contents were inadvertently obtained by the service
provider and appear to pertain to the commission of a crime.
The exceptions to the general rule of nondisclosure provided in
subsection (b) fall into three categories. The first category are those
disclosures which are authorized by either the sender or receiver of
the message. Either the sender or the receiver can directly or
through authorized agents authorize further disclosures of the con­
tents of their electronic communication. The second category are
disclosures which are necessary for the efficient operation of the
communications system. Such business procedures are included in
the section 2511(2)(a) exemption as well the exemptions of this sub­
section relating to the diclosure of the message to forwarding facili­
ties and the exemption for service provider activities designed to

38

protect the system and perform the service. The third category are
disclosures to the government. In this area there are two types of
disclosures. Those pursuant to a court order under the procedures
of sections 2516 and 2703 and those disclosures undertaken at the
initiative of the service provider in the exceptional circumstances
when the provider has become aware of the contents of a message
that relate to ongoing criminal activity.
New section 2703.—Requirements for governmental access

Subsection (a) of section 2703 provides requirements for the gov­
ernment to obtain the contents of an electronic communication
that has been in electronic storage for 180 days or less. A govern­
ment entity can only gain access to the contents of such an elec­
tronic communication pursuant to a warrant issued under the Fed­
eral Rules of Criminal Procedure or an equivalent State warrant.
Subsection (b) of section 2703 provides that for electronic commu­
nications that are maintained by a remote computing service and
that have been in storage in an electronic communication service
for more than 180 days the Government can gain access in several
ways. If the Government wishes to obtain the contents of a commu­
nication without the required notice to the subscriber then the gov­
ernmental entity must obtain a warrant issued under the Federal
Rules of Criminal Procedure or an equivalent State warrant. With
prior notice from the government entity to the subscriber or cus­
tomer, the entity may obtain the contents of the electronic commu­
nication either by using an administrative subpoena authorized by
a Federal or State statute or a Federal or State grand jury subpoe­
na or obtain a court order pursuant to subsection (d) of this section.
In addition, the required notice may be delayed pursuant to the re­
quirements of section 2705 of title 18 as provided in the Act.
Subsection (b) of new section 2703 of title 18 is made applicable
to all electronic communications held or maintained by the service
provider on behalf of a customer or subscriber and received by
means of electronic transmission as well as electronic communica­
tions in storage or computer processing if the provider is not au­
thorized to access the contents of any communications for purposes
other than storage or computer processing.
Subsection (c) provides for access to records or other information
pertaining to a subscriber to or customer of an electronic communi­
cations or remote computer service, not including the content of
electronic communications. This section permits the provider of the
service to divulge, in the normal course of business, such informa­
tion as customer lists and payments to anyone except a Govern­
ment agency. It should be noted that the information involved is
information about the customer's use of the service not the content
of the customer's communications.
A provider of electronic communication service or remote com­
puting service must disclose information pertaining to a subscriber
or customer, but not the contents of any communications of that
customer, to a Government entity only when the-Government
entity either (i) uses an administrative subpoena authorized by a
Federal or State statute, or a Federal or State grand jury subpoe­
na; (ii) obtains a warrant issued under the Federal Rules of Crimi­
nal Procedure or an equivalent state warrant; (iii) obtains a court­

39

order for such disclosure under subsection (d) of this section; or (iv)
has obtained the consent of the subscriber. A Government entity
which receives customer records pursuant to one of these four al­
ternatives is not required to provide notice to the subscriber or cus­
tomer that it has requested or obtained this information.
Subsection (d) provides that orders requiring access by a Govern­
ment entity to the contents of a wire or electronic communication
or to the records or other information sought shall issue only if the
governmental entity shows there is reason to believe the contents
of the wire or electronic communication, or the records or other in­
formation sought, are relevant to a legitimate law enforcement in­
quiry. This section provides no authority for the issuance of a state
subpoena that is prohibited under the law of such state.
This subsection also permits the provider of the communications
or remote computing service to move to quash or modify any other
issued under this section if the information or records requested
are unusually voluminous or compliance with the order would
cause an undue burden on the provider. This specific standing for
the service provider to contest an overly broad order is intended to
protect the service provider from unduly burdensome requirements
and to permit an impartial judicial officer to evaluate the appropri­
ateness of the government's request.
Subsection (e)—No cause of action against a provider disclosing
information under this chapter.
This subsection of the proposed new section provides a defense
for the service provider, its employees and officers, from suits aris­
ing because of its disclosure of information pursuant to a warrant
or other court order issued under this chapter.
New section 2704—Backup preservation
Subsection (a) of proposed section 2704 of title 18 provides that a
Government entity may include in its subpoena or court order ob­
tained pursuant to the provisions of new section 2703(b)(2) a re­
quirement that the service provider create and maintain a dupli­
cate copy of the contents of the electronic communications sought
in order to preserve those communications. Without notifying the
customer or subscriber, the service provider must create such a du­
plicate copy as soon as practicable and confirm to the Government
entity that the duplicate file has been created. In all cases the serv­
ice provider must create such a duplicate file within two business
days after receipt by that provider of the subpoena or court order
directing that such a duplicate file be created.
Paragraph (2) of this new subsection requires the Government
entity to give notice to the subscriber or customer that such a du­
plicate file has been created and has been ordered to be provided to
the Government. This notification to the customer or subscriber
must be given within three days of the receipt of confirmation from
the service provider (as required by subsection (a) above) that the
duplicate file has been created, unless the Government agency has
obtained permission to delay such notification pursuant to pro­
posed subsection 2705(a).
Paragraph (3) also prohibits the service provider from destroying
the backup copy until the information has been delivered to the
Government entity or any proceedings, including all appeals, con­

40

cerning the Government's subpoena or court order have been re­
solved, whichever is later. The service provider is required to
comply with the order and release the copy to the requesting Gov­
ernment entity no sooner than fourteen days after the Government
entity has notified the subscriber or customer that it is seeking this
information.
Paragraph (4) provides that the service provider should release
the information to the Government only if the service provider has
not received notice from its subscriber or customer that the sub­
scriber or customer has challenged the Government's request and
if the service provider has not itself challenged the request of the
Government entity.
Finally, paragraph (5) provides that when a Government entity
seeks to require the creation of the backup or duplicate copy under
this subsection and the governmental entity further determines
that notification under section 2703 of this title of the existence of
the subpoena or court order may result in destruction of or tamper­
ing with the evidence this later determination is not subject to
challenge either by the subscriber or customer or by the service
provider.
While this subtitle provides the subscriber or customer, and in
some circumstances the service provider a right to challenge the
necessity for or scope of a court order, neither this section or any
other section of this Act provides grounds to challenge the determi­
nation of the Government agency that no notification is to be given
to the subscriber or customer of the mere creation of the duplicate
file. The file is created and maintained by the service provider
solely for the purpose of assuring that potential evidence is not
tampered with or destroyed. Keeping the fact of the creation of this
file secret does not harm any privacy interest since there are ade­
quate safeguards included in the bill and in this chapter to control
the actual release of the duplicate file to the Government agency.
Subsection (b) of proposed section 2704 provides a procedure for
challenges to a court order by the subscriber or customer. The sub­
scriber or customer whose records are sought can within 14 days
after notification by the Government under subsection (a)(2) of this
section file a motion to quash such subpoena or vacate such court
order in an appropriate State or Federal court. The subscriber or
customer challenging the subpoena or order must serve a copy of
the motion on the governmental entity and provide written notice
to the service provider that such a challenge has been initiated.
The subsection further provides that the application or motion
must state that the applicant is the customer or subscriber to the
service from which the contents of electronic communications
maintained for him have been sought and state the reasons for be­
lieving that the records sought are not relevant to a legitimate law
enforcement inquiry or state that there has not been substantial
compliance with the provisions of this chapter in some other re­
spect.
The service required by this subsection shall be made upon the
governmental entity by delivering or mailing by registered or certi­
fied mail a copy of the papers to the person, or office, or depart­
ment specified in the notice which the customer has received pur­
suant to this chapter. The term "delivery" in this subsection has

41

the meaning given that term in the Federal Rules of Civil Proce­
dure.
If a court determines that the customer or subscriber has com­
plied with the requirements for such a motion including the re­
quirements of "delivery" to the Government entity, then the court
shall order the Government entity to file a sworn response to the
motion or application. Such response may be in camera if the gov­
ernmental entity includes in its response the reasons which make
such an in camera review appropriate. If the motion and response
provide insufficient information for the court to make a determina­
tion, the court may conduct such additional proceedings as it
deems appropriate. Any additional proceedings and a decision on
the challenge shall occur as rapidly as feasible, i.e. within 7 calen­
dar days in all but the most unusual circumstances.
The subsection also provides that the court shall enforce the
process if it finds that the applicant challenging the order or appli­
cation is not the subscriber or customer for whom the records are
maintained or if it finds that the law enforcement inquiry is legiti­
mate and that the communications sought are relevant to that in­
quiry. If the court finds that the customer or subscriber challeng­
ing the order or application is the subscriber or customer for whom
the records are maintained and that the records 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, then the court shall order the process quashed.
Finally, the subsection provides that a court order denying a
motion or application under section 2704 shall not be deemed a
final order and no interlocutory appeal may be taken by the cus­
tomer or subscriber from such a denial.
In the event that there is no indictment then the person whose
records are involved may move for the return of the records. Obvi­
ously, nothing precludes a customer or subscriber who is later the
subject of a criminal proceeding from raising these issues again
subject to the sanctions limitation of section 2708 of title 18.
New section 2705—Delayed notice

This proposed section provides procedures and requirements for
implementation for a delay of notice to the customer or subscriber
that his records are being sought or have been provided to a gov­
ernment entity.
Subsection (a) of this section 2705 provides that when a Govern­
ment entity seeks or obtains access to the contents of an electronic
communication by application for a court order notification can be
delayed for an initial period of up to 90 days, if the Government
entity requests such a delay and the court determines that there is
reason to believe that the notification of the existence of the court
order may have an adverse result as described in this subsection.
Where an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury subpoena is obtained,
a delay of notification for a period of not more than 90 days can be
obtained upon the execution of a written certification of a supervi­
sory official that there is reason to believe that notification of the
existence of the subpoena may have an adverse result.

42

For purposes of a delay of notification, an adverse result is de­
fined as (A) endangering the life or physical safety of an individual;
(B) flight from prosection; (C) destruction of or tampering with evi­
dence; (D) intimidating of potential witnesses; or (E) otherwise seri­
ously jeopardizing an investigation or unduly delaying a trial.
In the case of an administrative or grand jury subpoena, the gov­
ernmental entity is required to maintain a true copy of the re­
quired certification, and the certification can only be given by a
supervisory official". The subsection defines such an official as the
investigative agent in charge of an agency's headquarters or re­
gional office, or the assistant to such an agent or the equivalent, or
the chief prosecuting attorney or the first assistant prosecuting at­
torney of an agency's headquarters or regional office, or the equiva­
lent.
The subsection also provides that extensions of the delay period
for not more than 90 days each may be granted by the court upon
application or by certification by the government agency provided
the requirements of subsection (b) of section 2705 are met for each
extension.
When the delay period, including any extensions thereof, as pro­
vided in this subsection and subsection (b), has expired the govern­
mental entity must serve upon, or deliver by registered or firstclass mail to the customer or subscriber, a copy of the process or
request together with notice that states the nature of the law en­
forcement inquiry and informs the customer or subscriber: (i) that
the information maintained for such customer or subscriber by the
service provider was supplied or requested by the Government
agency and stating the date on which the information was supplied
or requested; (ii) that notification to the customer of this action was
delayed; (iii) what Government entity or court made the certifica­
tion or determination that notification could be delayed; and (iv)
which provision or provisions of this chapter allowed the delay.
Subsection (b) provides that if a governmental entity has delayed
notice or has not been required to give notice under the provisions
of section 2703, then the governmental entity may also apply to the
court for an order commanding a provider of electronic communi­
cations service or remote computing service to whom a warrant,
subpoena, or court order is directed, not to notify any person of the
existence of the warrant, subpoena, or court order. The court is re­
quired to enter such an order to prevent disclosure by the service
provider if notification of the existence of the warrant, subpoena,
or court order will result in any of the five adverse results listed in
this subsection. The entity must apply to a court for preclusion
under this subsection, even if the underlying process—an adminis­
trative subpoena, for example—does not require a court order.
New section 2706—Cost reimbursement
This proposed section provides that when a governmental entity
obtains the contents of communications, records or other informa­
tion under the authority of sections 2702, 2703, or 2704, it shall pay
to the person or entity assembling or providing the information a
fee for reimbursement for the reasonably necessary direct costs.
The section provides an exception to this general rule with regard
to records or other information maintained by a communications

43

common carrier that relate to telephone toll records and telephone
listings obtained under section 2703. No fee is normally required
for access to such records. However, the court may order a pay­
ment if the court determines the information required is unusually
voluminous. The amount of the fee provided in this subsection is to
be mutually agreed upon by the governmental entity and the
person or entity providing the information. If they are unable to
reach an agreement, the court which issued the order for produc­
tion of the information, or the court before which a criminal pros­
ecution relating to the information would be brought if no court
order was issued, is empowered to determine a reasonable fee.
New section 2707—Civil action

Subsection (a) of this proposed section provides that, except as
provided in section 2703(e), any provider of electronic communica­
tion service, subscriber, or customer of such service aggrieved by
any violation of this new chapter may recover from any person or
entity—including governmental entities—who knowingly or inten­
tionally violated this chapter.
Under subsection (b), appropriate relief in a civil action under
this title includes: (1) such preliminary, declaratory, or other equi­
table relief as may be appropriate; (2) damages under the section
including the sum of actual damages suffered by the plaintiff and
any profits made by the violator as the result of the violation as
provided in (c) with minimum statutory damages of $1,000; and (3)
reasonable attorney's fees and other reasonable litigation costs.
The section also provides a defense to an action under this chap­
ter. If the defendant's action was based on a good faith reliance on
a court order or warrant, a grand jury subpoena, a legislative or
statutory authorization; or a request of an investigative or law en­
forcement officer under section 2518(7) of this title, or if it was
based on a good faith determination that section 1511(3) of this title
permitted the conduct complained of, then this good faith reliance
or determination is a complete defense to any civil or criminal
action brought under this chapter or under any other law.
This new section also provides that any action under this section
must be commenced not later than 2 years after the date upon
which the claimant first discovered or had a reasonable opportuni­
ty to discover that a violation had occurred.
; . :

1

.

New section 2708—Exclusivity of remedies

The remedies and sanctions provided in this chapter are the only
judicially available remedies and sanctions for nonconstitutional
violations of the chapter.
New section 2709.—Counterintelligence access to telephone toll and
transactional records

Section 2709 provides for FBI counterintelligence access to tele­
phone toll and transactional records. This provision is substantially
the same as language recently reported by the Intelligence Com­
mittee as section 503 of the Intelligence Authorization Act for
Fiscal Year 1987. There are two differences. The first is that sec­
tion 2709 applies not only to FBI requests for telephone subscriber
information and toll billing information, but also to FBI requests

44

for electronic communication transactional records. This ensures
that the FBI has the necessary authority with regard to subscriber
information and toll billing information with respect to electronic
communication services other than ordinary telephone service.
Section 2709 is a carefully balanced provision that remedies the
defect in current law that the FBI cannot gain access on a manda­
tory basis to telephone toll records maintained by communications
common carriers, for counterintelligence purposes. As a result, es­
pecially in states where public regulatory bodies have created ob­
stacles to providing such access, the FBI has been prevented from
obtaining these records, which are highly important to the success­
ful investigation of counterintelligence cases.
The second difference concerns the standard that the FBI must
meet before it can require a common carrier or service provider to
supply the requested records. Section 2709 requires a certification
by a designated FBI official that the information sought is relevant
to an authorized foreign counterintelligence investigation and that
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. Section
503 of the Intelligence Authorization Act for Fiscal Year 1987, as
reported by the Intelligence Committee, contains a slightly differ­
ent "reason to believe standard requiring specific and articulable
facts giving reason to believe that the target "is or may be a for­
eign power or an agent of a foreign power.
Subsection 2709(a) of this proposed section provides that a wire
or electronic communication service provider must comply with a
request for subscriber information and toll billing records in its
custody or possession made by the Director of the Federal Bureau
of Investigation under subsection (b) of this section. It should be
noted that this applies only to transactional records, not to the con­
tent of the electronic messages of a customer or subscriber.
Subsection 2709(b) provides that in order for the requirement to
provide information in subsection (a) of this section to apply, the
Director of the Federal Bureau of Investigation, or a specific person
within the Bureau designated for this purpose by the Director,
must certify in writing to the wire or electronic communication
service provider that (1) the information sought is relevant to an
authorized foreign counterintelligence investigation; and (2) that
there are specific, articulable facts giving reason to believe that the
person or entity to whom the information sought pertains is a for­
eign power or an agent of a foreign power as defined m section 101
of the Foreign Intelligence Surveillance Act.
.
The House Judiciary Committee report on the Electronic Com­
munications Privacy Act of 1986 does not discuss the meaning of
the "reason to believe" standard in section 2709. It is essential,
therefore, to clarify the intent of the Senate with respect to this
item.
The "reason to believe" requirement in section 2709 is intended
to be substantially less stringent than the requirement of "proba­
ble cause." It is intended that the application of the "reason to be­
lieve" requirement will be determined by a senior FBI official at
the level of Deputy Assistant Director or above. It is intended that

45

in applying the "reason to believe" standard to a specific case, t h e
FBI official may take into account any facts or circumstances that
a prudent investigator would consider, so long as there is an objec­
tive, factual basis of the determination.
The Senate Select Committee on Intelligence has informed t h e
Judiciary Committee that the language contained in the bill would
not significantly affect the application of the current FBI investiga­
tive standard in this area. Further discussion of the investigatory
standard in particular cases is contained in the reports of t h e
Senate Select Committee on Intelligence and the House Permanent
Select Committee on Intelligence on FY 87 Intelligence Authoriza­
tion Act (S. 2477 and H.R. 4759).
Subsection 2709(c) prohibits a service provider, or any officer, em­
ployee, or agent of t h e service provider from disclosing to any
person that t h e Federal Bureau of Investigation has sought or ob­
tained access to information or records under this section.
Subsection 2709(d) permits the Federal Bureau of Investigation to
disseminate such information only in conformance with guidelines
approved by the Attorney General for foreign intelligence and for­
eign counterintelligence investigations. If t h e information is to be
disseminated to another federal agency, it can only be disseminated
if the information is clearly relevant to t h e authorized responsibil­
ities of such agency.
Subsection 2709(e) further requires that on a semiannual basis
the Director of the Federal Bureau of Investigation fully inform
the Permanent Select Committee on Intelligence of the House of
Representatives and t h e Select Committee on Intelligence of t h e
Senate concerning all requests made by t h e Bureau under subsec­
tion 2709(b).
New section 2710—Definitions for chapter
Terms used in section 2510 retain the definitions given to each
term by that section. The term "remote computing service" is de­
fined to mean the provision to the public of computer storage, or
computer processing services by means of an electronic communica­
tions system.
This section also provides for the change in the table of chapters
of title 18 of the United States Code by adding chapter 121 to the
table.
Section 202—Effective date
This section provides that the amendments made by Title II of
the bill shall be effective 90 days after the date of enactment. It
further provides that changes made by this, title that apply to con­
duct pursuant to court order or extension, apply only with respect
to court orders or extensions made after the effective date of the
title.
TITLE III—PEN REGISTERS AND TRAP AND TRACE DEVICES

Title III of the Electronic Communications Privacy Act proposes
to add a new chapter 206 to title 18 of the United States Code. This
chapter will govern the use, application and issuance of orders for
pen registers and trap and trace devices. Those terms are defined

46

in proposed section 3126 of title 18. Briefly, a pen register is a
device which can be attached to a telephone line for the purpose of
decoding and recording the numbers dialed from that line. A trap
and trace device is used to identify the originating number of an
incoming wire or electronic communication. These devices do not
identify or record the contents of the communciation.
Section 301—Pen registers and trap and trace devices
Subsection 301(a) of the Electronic Communications Privacy Act
sets out the six proposed sections of title 18 governing pen registers
and trap and trace devices.
New section 3121—General prohibition on use of pen registers and
trap and trace devices
Subsection (a) of proposed section 3121 of title 18 contains a gen­
eral prohibition against the installation or use of a pen register or
trap and trace device without a court order. Such a court order
may be obtained under section 3123 of title 18 or under the Foreign
Intelligence Surveillance Act (FISA).
Proposed subsection 3121(b) contains exceptions to subsection
(a)'s general prohibition against the use of pen registers and trap
and trace devices. Providers of electronic or wire communication
services may use pen registers or trap and trace devices if one of
three conditions are met. The provider may use a pen register or
trap and trace device (1) if it relates to the operation, maintenance,
and testing of a wire or elecronic communication service, or to the
protection of the rights or property of such provider, or to the pro­
tection of users of that service from abuse or unlawful use of the
service; (2) to record the fact that a wire or electronic communica­
tion was initiated or completed in order to protect the provider, an­
other provider furnishing service toward completion, or a user of
that service from fraudulent, unlawful or abusive use of service; or
(3) where the consent of the user has been obtained.
Proposed subsection 3121(c) imposes a penalty for a knowing vio­
lation of subsection (a). The penalty is a fine under this title, im­
prisonment for up to 1 year, or both.
New section 3122—Applications
Proposed section 3122 of title 18 sets out the procedures for ap­
plying for a court order for a pen register or trap and trace device.
Under subsection (a), a government attorney may apply for an
order, or the extension of an order, authorizing or approving the
installation and use of a pen register or trap and trace device. Such
order must be made in writing under oath or affirmation to a court
of competent jurisdiction.
Proposed paragraph 3122(a)(2) contains parallel provisions for
state investigative or law enforcement officers. The phrase "Unless
prohibited by state law," makes clear that this law does not pre­
empt any existing state law regulating the installation and use of
pen registers or trap and trace devices by state officials. To the
extent that state law currently provides that a pen register or trap
and trace device may only be installed or used by a state official
based on some other, higher standard of proof, that law will contin­
ue in effect with respect to such officials.

47

Proposed subsection 3122(b) of title 18 sets out the contents re­
quired in an application for a court order for a pen register or a
trap and trace device. The application must include the identity of
the applicant and the law enforcement agency conducting the in­
vestigation. Also, the applicant must certify that the information
likely to be obtained is relevant to an ongoing criminal investiga­
tion being conducted by the agency.
New section 3123—Issuance of orders
Subsection (a) of proposed section 3123 provides that, upon appli­
cation, a court shall issue an ex parte order authorizing the instal­
lation and use of a pen register or trap and trace device within its
jurisdiction. To issue an order, the court must first be satisfied that
the information sought is relevent to an ongoing criminal investi­
gation. This provision does not envision an independent judicial
review of whether the application meets the relevance standard,
rather the court needs only to review the completeness of the certi­
fication submitted.
Proposed paragraph 3123(b)(1) describes the contents of the order
authorizing the use or installation of a pen register or trap and
trace device. The order shall specify (A) the identity, if known, of
the person whose telephone line will receive the pen register; (B)
the identity, if known, of the person who is under criminal investi­
gation;(C)the number and, if known, location of the telephone line
and, in the case of a trap and trace device, the geographic limits of
the order; and (D) a statement of the offense to which the informa­
tion likely to be obtained relates.
Under proposed paragraph 3123(b)(2), the order, upon request of
the applicant, shall direct a third party to furnish information, fa­
cilities, and technical assistance necessary to install the pen regis­
ter or trap and trace device. This provision of the order relating to
cooperation is intended to codify the existing informal practice of
cooperation between telephone companies and the Department of
Justice.
Under proposed subsection 3123(c), the time period of authoriza­
tion of installation and use of a pen register or a trap and trace
device is 60 days, with possible extensions of 60 days. An extension
may be granted upon application for a section 3122 order. The
same judicial findings required by subsection 3123(a) are also re­
quired.
Proposed subsection 3123(d) provides that an order authorizing or
approving the installation and use of a pen register or trap and
trace device shall direct that the order be sealed, until otherwise
ordered by the court. In addition, the order shall bar the disclosure
of the existence of the pen register or trap and trace device and the
disclosure of an investigation to the listed subscriber or to any
other unauthorized person unless or until otherwise directed by the
court. Intentional violations of the non-disclosure provisions may
be, in appropriate circumstances, punishable as contempt.
New section 3124—Assistance in installation and use
Proposed subsection 3124(a) provides that upon the request of an
authorized person, a wire or electronic communication service pro­
vider, landlord, custodian, or other person shall furnish such re­

48

quester with all information, facilities, and technical assistance
necessary to effectuate the pen register order unobtrusively and
with a minimum of interference. The Committee assumes that the
current practice of law enforcement officials installing and main­
taining pen registers will continue.
For trap and trace devices, proposed subsection 3124(b) provides
that upon request of a government attorney or law enforcement of­
ficer authorized to receive the results, a wire or electronic commu­
nication service provider, landlord, custodian or other person shall
promptly install the trap and trace device and furnish the request­
er all additional information, facilities and technical assistance, in­
cluding installation and operation of the device unobtrusively and
with a minimum of interference with services, provided that the in­
stallation and service is ordered under section 3123(b). This provi­
sion also requires that the results be furnished to the law enforce­
ment officer designated by the court, at reasonable intervals,
during regular business hours for the duration of the order, unless
the court orders otherwise.
Proposed subsection 3124(c) provides reasonable compensation for
those providing facilities and assistance under this section. This
compensation provision is modeled after that which applies under
section 2518 of title 18 and subsection 106(b) of this bill. It is in­
tended to be interpreted and implemented in a similar fashion.
Proposed subsection 3124(d) provides that no cause of action shall
lie in any court against a wire or electronic communication service
provider, its officers, agents, employees or other specified persons
for providing information, assistance or facilities in accordance
with the terms of a chapter 206 court order.
Proposed subsection 3124(e) establishes a good faith defense
against any civil or criminal action brought under chapter 206 or
any other law.
New section 3125—Reports
Under a current order of the Attorney General, statistics con­
cerning pen registers are compiled. Proposed section 3125 requires
that this information be reformulated and submitted to the appro­
priate committees of Congress. It also extends such reporting re­
quirements to trap and trace devices.
Specifically, proposed section 3125 requires that the Attorney
General annually report to Congress on the number of pen register
and trap and trace device orders applied for by law enforcement
agencies of the Department of Justice. The Committee requests
that these reports include information as to the nature of the of­
fenses for which the pen registers and trap and trace devices are
being used.
New section 3126—Definitions
Proposed section 3126 contains definitions for this chapter. The
terms "wire communication," "electronic communication," and
"electronic communication service" have the same meanings as in
section 2510 of title 18. The term "court of competent jurisdiction"
means (A) a district court of the. United States (including a magis­
trate of such court) or a U.S. Court of Appeals; or (B) a state court

49

of general criminal jurisdiction authorized to enter pen register or
trap and trace orders.
As indicated in proposed section 3126(3), the term "pen register"
means a device which records or decodes electronic or other im­
pulses which identify the numbers dialed or otherwise transmitted
for purposes of routing telephone calls, with respect to wire com­
munications, on the telephone line to which such device is at­
tached. Pen registers do not record the contents of a communica­
tion. They record only the telephone numbers dialed.
Devices used by a provider or customer or wire or electronic com­
munication service incident to billing or cost accounting, or for any
other similar purposes in the ordinary course of business are ex­
cluded from the definition of a pen register. Thus, devices that
many companies and firms use to record billable time for their cli­
ents' accounts are outside this bill's prohibitions against the instal­
lation and use of pen registers.
Trap and trace devices are defined in proposed subsection
3126(4). A "trap and trace device" is a device which captures the
incoming electronic or other impulses which identify the originat­
ing number of an incoming wire or electronic communication. Trap
and trace devices do not record the contents of communications.
The term "attorney for the government" has the meaning given
to that term by the Federal Rules of Criminal Procedure. The term
"State" means a State, the District of Columbia, Puerto Rico, and
any other possession or territory of the United States.
Subsection 301(b) of the bill contains a clerical amendment to the
table of chapters.
Section 302—Effective date
Section 302 of the bill contains the effective date for Title III of
the Electronic Communications Privacy Act. Subsection (a) pro­
vides that as a general rule, Title III of the bill shall take effect 90
days after enactment. In the case of conduct pursuant to a court
order or extension, these amendments apply only with respect to
court orders or extensions made after this title takes effect. Subsec­
tion 302(b) of the bill contains special rules which, in essence, give
states two years to bring their laws into conformity with the Elec­
tronic Communications Privacy Act's amendments to Federal law.
Section 303—Interference with the operation of a satellite
This section of the bill adds a new section to chapter 65 of title
18, United States Code.
New section 1367—Interference with the operation of a satellite
Subsection (a) of this proposed section provides that anyone who,
without the authority of the satellite operator, intentionally or ma­
liciously interferes with the authorized operation of a satellite or
obstructs or hinders any satellite transmission, including both the
transmission from the ground to the satellite and the transmission
from the satellite to the ground (commonly known as the up-link
and the down-link respectively) is subjected to criminal penalties
including a fine of up to $250,000, imprisonment for not more than
10 years, or both. The subsection does not prohibit any actions by

50

the authorized satellite operator which are designed to protect the
satellite from unauthorized use.
Subsection (b) of this new section makes it clear that the crimi­
nal act described in subsection (a) does not include any lawfully au­
thorized investigative, protective, or intelligence activity of a law
enforcement or intelligence agency of the United States. This sub­
section does not provide any new authority for such activities.
Finally, this section of the bill provides that the table of sections
for chapter 65 of title 18 is amended to include the new section
1367.
VI. AGENCY VIEWS

On June 25, 1986 and July 29, 1986, the Committee received the
following letters from the Department of Justice.
U.S. DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AND INTERGOVERNMENTAL AFFAIRS,

Washington, DC, June 25, 1986.
Hon. STROM THURMOND,

Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: This letter is to advise you of the Depart­
ment of Justice's position with regard to S. 2575, the Electronic
Communications Privacy Act of 1986. This bill, which is identical
to H.R. 4952 as recently passed by the House of Representatives,
makes important changes to the existing wiretap statutes and fills
gaps in current laws by creating provisions to regulate interception
of and access to new forms of electronic communication such as
data transmissions.
The Department of Justice has worked intensively on this legis­
lation over the past several weeks with the staff of the Subcommit­
tee on Patents, Copyrights and Trademarks, as well as with inter­
ested representatives of industry and civil liberties groups. While
initial versions of this legislation did not in our view adequately
safeguard legitimate and vital law enforcement and national secu­
rity needs for access to communications, as a result of the negotia­
tions that have occurred the bill has been substantially modified to
accommodate our concerns. In our judgment the bill as presently
drafted fairly balances the interests of privacy and law enforce­
ment and its enactment would represent a major accomplishment
of the 99th Congress, holding forth the promise of significant bene­
fits for business, privacy, and law enforcement alike.
Accordingly, the Department of Justice strongly supports the en­
actment of S. 2575.
Sincerely,
JOHN R. BOLTON,

Assistant Attorney General.

51
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AND
INTERGOVERNMENTAL AFFAIRS,

Washington, DC, 20530 July 29, 1986.
Hon. STROM THURMOND,

Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: This is with further reference to my letter
of June 25, 1986, expressing support for S. 2575, the Electronic
Communications Privacy Act of 1986. A copy of my earlier letter is
enclosed for ready reference.
We continue to believe that this measure is a well balanced one
which, in addition to modernizing the 1968 electronic surveillance
law, also benefits both law enforcement and individual privacy by
clarifying many aspects of this highly complex area of the law. As
the 99th Congress is rapidly drawing to a close, we sincerely hope
that the Senate will act on S. 2575 at an early date.
We would deeply appreciate your consideration of S. 2575 and, if
possible, your formal co-sponsorship of the bill. Having your name
on the bill would, we believe, be most helpful in efforts to process
this important legislation this year.
Sincerely,
JOHN R. BOLTON,

Assistant Attorney General.
VII. COST ESTIMATE
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,

Washington, DC, September 23, 1986.
Hon. STROM THURMOND,

Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has re­
viewed S. 2575, the Electronic Communications Privacy Act of
1986, as ordered reported by the Senate Committee on the Judici­
ary, September 19, 1986. CBO estimates that enactment of this leg­
islation would result in no significant cost to the federal govern­
ment and in no cost to state or local governments.
S. 2575 would make a number of amendments to Title 18 of the
U.S. Code concerning access to electric communications. Title I of
the bill would establish penalties for the unlawful interception or
disclosure of electronic communications, provide for the recovery of
civil damages for persons whose communications are intercepted,
disclosed or used in violation of this provision, and modify proce­
dures for government interception of communications. T i t l e II,
would create specific penalties for unlawful access to stored wire
and electronic communications, while Title III would establish a
general prohibition on the use of pen registers. These titles would
mandate specific procedures for access to stored communications
and use of pen registers by government entities, and Title II would
allow for civil actions.

52

S. 2575 would require government entities to compensate private
parties assembling or providing information concerning stored elec­
tronic communications, or assisting in the installation and use of a
pen register. Because such compensation is currently provided in
Department of Justice (DOJ) investigations, CBO does not expect
the these provisions would result in any significant additional cost
to the federal government.
Based on information from the DOJ, we do not expect that enact­
ment of this bill would result in a significant change in the govern­
ment's law enforcement practices or expenditures. S. 2575 would
specifically authorize law enforcement efforts the DOJ is currently
undertaking with other authority.
If you wish further details on this estimate, we will be pleased to
provide them.
With best wishes,
Sincerely,
JAMES BLUM

(for Rudolph G. Penner, Director).
VIII. REGULATORY IMPACT STATEMENT
In compliance with paragraph 11(b) of Rule XXVI of the Stand­
ing Rules of the Senate, the Committee has concluded that no sig­
nificant additional regulatory impact would be incurred in carrying
out the provisions of this legislation. After due consideration, the
Committee concluded that the changes in existing law contained in
the bill will not increase or diminish any present regulatory re­
sponsibilities of the U.S. Department of Justice or any other de­
partment or agency affected by the legislation.
IX. VOTE OF COMMITTEE

On August 12, 1986, the Subcommittee on Patents, Copyrights,
and Trademarks, with a quorum present, reported S. 2575, with an
amendment in the nature of a substitute, to the Committee on the
Judiciary by voice vote. On September 19, 1986, the Judiciary Com­
mittee adopted two further changes in the bill as reported by the
Subcommittee. The Judiciary Committee, with a quorum present,
and without objection heard, approved the amendment in the
nature of a substitute. The Committee then favorably reported S.
2575, as amended, by unanimous consent.
X. CHANGES IN EXISTING LAW

In compliance with paragraph 12 of Rule XXVI, of the Standing
Rules of the Senate, changes in existing law made by S. 2575 as
reported are shown as follows (existing law proposed to be omitted
is enclosed in brackets, new matter is printed in italic, and existing
law in which no change is proposed is shown in roman):

UNITED STATES CODE
*

*

*

*

*

*

*

53

TITLE 18—CRIMES AND CRIMINAL

PROCEDURE

PART I. CRIMES
Chapter

Sec.
******
1

*
General provisions

*******

119. Wire and electronic communications interception and interception of
oral communications
*

*

*

*

*

*

*

121. Stored Wire and Electronic Communications and Transactional Records
Access
*
*
*
*
*
*
*

2510
2701

PART II-CRIMINAL PROCEDURE
201. General provisions
*

3001
******

206. Pen Registers and Trap and Trace Devices
*
*
*
*

3121
*

*

*

CHAPTER 65—MALICIOUS MISCHIEF
Sec.
*

*

*

*

*

*

*

*

1367. Interference with the operation of a satellite.
*******

§1367. Interference with the operation of a satellite
(a) Whoever, without the authority of the satellite operator, inten­
tionally or maliciously interferes with the authorized operation of a
communications or weather satellite or obstructs or hinders any sat­
ellite transmission shall be fined in accordance with this title or
imprisoned not more than ten years of both.
(b) This section does not prohibit any lawfully authorized investi­
gative, protective, or intelligence activity of a law enforcement
agency or of an intelligence agency of the United States.
*
*
*
*
*
*
*
CHAPTER 109-SEARCHES AND SEIZURES
*
*
*
*
*
*
*
§ 2232. Destruction or removal of property to prevent seizure
(a) PHYSICAL INTERFERENCE WITH SEARCH. —Whoever, before
during, or after seizure of any property by any person authorized
to make searches and seizures, in order to prevent the seizure or
securing of any goods, wares, or merchandise by such person,
staves, breaks, throws overboard, destroys, or removes the same,
shall be fined not more than $10,000 or imprisoned more than five
years, or both.

54

(b) NOTICE OF SEARCH.—Whoever, having knowledge that any
person authorized to make searches and seizures has been author­
ized or is otherwise likely to make a search or seizure, in order to
prevent the authorized seizing or securing of any perosn, goods,
wares, merchandise or other property, gives notice or attempts to
give notice of the possible search or seizure to any person shall be
fined not more than $10,000 or imprisoned not more than five
years, or both.
(c) NOTICE OF CERTAIN ELECTRONIC

SURVEILLANCE.—Whoever,

having knowledge that a Federal investigative or law enforcement
officer has been authorized or has applied for 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 au­
thorized or has applied for authorization to conduct electronic sur­
veillance under the Foreign Intelligence Surveillance Act (50 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.
*

*

*

*

*

*

*

CHAPTER 119—WIRE AND ELECTRONIC COMMUNICATIONS

INTERCEPTION AND INTERCEPTION OF ORAL COMMUNI­
CATIONS

Sec.

2510. Definitions.
2511. Interception and disclosure of wire or oral communications prohibited.
2512. Manufacture, distribution, possession, and advertising of wire or oral commu­
nication intercepting devices prohibited.
2513. Confiscation of wire [or oral], oral, or electronic communication intercepting
devices.
2514. Immunity of witnesses.
2515. Prohibition of use as evidence of intercepted wire [or oral], oral, or electronic
communications.
2516. Authorization for interception of wire [or oral], oral, or electronic communi­
cations.
2517. Authorization for disclosure and use of intercepted wire [or oral], oral, or
electronic communications.
2518. Procedure for interception of wire [or oral], oral, or electronic communica­
tions.
2519. Reports concerning intercepted wire [or oral], oral, or electronic communica­
tions.
2520. Recovery of civil damages authorized.
2521. Injunction against illegal interception.

§ 2510. Definitions
As used in this chapter—
(1) "wire communication" means any [communication]
aural transfer made in whole or in part through the use of fa­
cilities for the transmission of communications by the aid of
wire, cable, or other like connection between the point of
origin and the point of reception (including the use of such con­

55

nection in a switching station) furnished or operated by any
person engaged [as a common carrier] in providing or operat­
ing such facilities for the transmission of interstate or foreign
communications or communications affecting interstate or for­
eign 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 transmit­
ted between the cordless telephone handset and the base unit;
(2) "oral communication" means any oral communication ut­
tered by a person exhibiting an expectation that such commu­
nication is not subject to interception under circumstances jus­
tifying such expectation, but such term does not include any
electronic communication;
*
*
*
*
*
*
*
(4) "intercept" means the aural or other acquisition of the
contents of any wire, electronic, or oral communication
through the use of any electronic, mechanical, or other device.
(5) "electronic mechanical, or other device" means any
device or apparatus which can be used to intercept a wire [or
oral], oral, or electronic communication other than—
(a) any telephone or telegraph instrument, equipment or
facility, or any component thereof, (i) furnished to the sub­
scriber or user by a [communications common carrier]
provider of wire or electronic communication service in the
ordinary course of its business and being used by the sub­
scriber or user in the ordinary course of its business or fur­
nished by such subscriber or user for connection to the fa­
cilities of such service and used in the ordinary course of
its business; or (ii) being used by a communications
common carrier in the ordinary course of its business, or
by an investigative or law enforcement officer in the ordi­
nary course of his duties;
*
*
*
*
*
*
*
(8) "contents", when used with respect to any wire [or
oral], oral, or electronic communication, includes any informa­
tion concerning the [identity of the parties to such communi­
cation or the existence,] substance, purport, or meaning of
that communication;
(9) "Judge of competent jurisdiction" means—
(a) a judge of a United States district court or a United
States court of appeals; and
(b) a judge of any court of general criminal jurisdiction
of a State who is authorized by a statute of that State to
enter orders authorizing interceptions of wire [or oral],
oral, or electronic communications;
(10) "communication common carrier" shall have the same
meaning which is given the term "common carrier" by section
153(h) of title 47 of the United States Code; [and]
(11) "aggrieved person" means a person who was a party to
any intercepted wire [or oral], oral, or electronic communica­
tion or a person against whom the interception was direct­
ed [.];

56
(12) "electronic communication" means any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio, electro­
magnetic, photoelectronic or photooptical system that affects
interstate or foreign commerce, but does not include—
(A) the radio portion of a cordless telephone communica­
tion 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 tracking device (as de­
fined 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 elec­
tronic 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 re­
spect to a radio communication, that such communication is
not—
(A) scrambled or encrypted;
(B) transmitted using modulation techniques whose es­
sential parameters have been withheld from the public
with the intention of preserving the privacy of such commu­
nication;
(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 elec­
tronic communication incidental to the electronic transmis­
sion thereof; and
(B) any storage of such communication by an electronic
communication service for purposes of backup protection of
such communication; and

57

(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.
§ 2511. Interception and disclosure of wire or oral communica­
tions prohibited
(1) Except as otherwise specifically provided in this chapter any
person who—
(a) [willfully] intentionally intercepts, endeavors to inter­
cept, or procures any other person to intercept or endeaver to
intercept, any wire [or oral] oral, or electronic communica­
tion;
(b) [willfully] intentionally uses, endeavors to use, or pro­
cures any other person to use or endeavor to use any electron­
ic, mechanical, or other device to intercept any oral communi­
cation 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
interferes 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
permises of any business or other commercial establish­
ment the operations of which affect interstate or foreign
commerce; 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 posses­
sion of the United States;
(c) [willfully] intentionally discloses, or endeavors to dis­
close, to any other person the contents of any wire [or oral]
oral, or electronic communication, knowing or have reason to
know that the information was obtained through the intercep­
tion of a wire [or oral] oral, or electronic communication in
violation of this subsection; or
(d) [willfully] intentionally uses, or endeavors to use, the
contents of any wire [or oral] oral, or electronic communica­
tion, knowing or having reason to know that the information
was obtained through the interception of a wire [or oral]
oral, or electronic communication in violation of this subsec­
tion; [shall be fined not more than $10,000 or imprisoned not
more than five years, or both.] shall be punished as provided
in subsection (4) or shall be subject to suit as provided in sub­
section (5).
(2)(a)(i) It shall not be unlawful under this chapter for an opera­
tor of a switchboard, or an officer, employee, or agent of [any com­
munication common carrier,] a provider of wire or electronic com­

58

munication service, whose facilities are used in the transmission of
a wire communication, to intercept, disclose, or use that communi­
cation 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 carrier
of such communication: Provided, That said communication
common carriers] 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 electronic
communication service, [communication common carriers,] their
officers, employees, and agents, landlords, custodians, or other per­
sons, are authorized to provide information facilities, or technical
assistance to persons authorized by law to intercept wire [or
oral], oral, or electronic communications or to conduct electronic
surveillance, as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, if [the common carrier,] such provider
its officers, employees, or agents, landlord, custodian, or other spec­
ified person has been provided with—
(A) a court order directing such assistance signed by the au­
thorizing judge, or
(B) a certification in writing by a person specified in section
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 speci­
fied 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 information, facilities, or technical assistance re­
quired. No [communication common carrier] provider of wire or
electronic communication service officer, employee, or agent there­
of, 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 an order or certification
under this subparagraph, except as may otherwise be required by
legal process and then only after prior notification to the Attorney
General or to the principal prosecuting attorney of a State or any
political subdivsion of a State, as may be appropriate. Any [viola­
tion of this subparagraph by a communication common carrier or
an officer, employee, or agent thereof] such disclosure, shall
render [the carrier] such person liable for the civil damages pro­
vided for in section 2520. No cause of action shall lie in any court
against any [communication common carrier] provider of wire or
electronic communication service its officers, employees, or agents,
landlord, custodian, or other specified person for providing infor­
mation, facilities, or assistance in accordance with the terms of
[an order of certification under this subparagraph] a court order
or certification under this chapter.
(b) It shall not be unlawful under this chapter for an officer, em­
ployee, or agent of the Federal Communications Commission, in
the normal course of his employment and in discharge of the moni­
toring responsibilities exercised by the Commission in the enforce­

59

ment of chapter 5 of title 57 of the United States Code, to intercept
a wire or electronic communication, or oral communication trans­
mitted by radio, or to disclose or use the information thereby ob­
tained.
(c) It shall not be unlawful under this chapter for a person acting
under color of law to intercept a wire [or oral], oral, or electronic
communication, 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
acting under color of law to intercept a wire [or oral], oral, or
electronic, communication where such person is a party to the com­
munication or where one of the parties to the communication has
given prior consent to such interception unless such communica­
tion is intercepted for the purpose of committing any criminal or
tortious act in violation of the Constitution or laws of the United
States or of any State [or for the purpose of committing any other
injurious act].
(e) Notwithstanding any other provision of this title or section
705 or 706 of the Communications Act of 1934, it shall not be un­
lawful for an office, employee, or agent of the United States in the
normal course of his official duty to conduct electronic surveil­
lance, as defined in section 101 of the Foreign Intelligence Surveil­
lance Act of 1978, as authorized by that Act.
(f) Nothing contained in this chapter or chapter 121, or section
705 of the Communications Act of 1934, shall be deemed to affect
the acquisition by the United States Government of foreign intelli­
gence information from international or foreign communication
[ b y ] , or foreign intelligence activities conducted in accordance
with otherwise applicable Federal law involving a foreign electronic
communications system, utilizing a means other than electronic
surveillance as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, and procedures in this chapter and the
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive
means by which electronic surveillance, as defined in section 101 of
such Act, and the interception of domestic wire and oral communi­
cations 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 configured
so that such electronic communication is readily accessible to
the general public;
(ii) to intercept any radio communication which is transmit­
ted—
(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

60

(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 utilizes frequencies
monitored by individuals engaged in the provision or the use of
such system, if such communication is not scrambled or encrypt­
ed.
(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 a electronic communication was ini­
tiated 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 fraud­
ulent, unlawful or abusive use of such service.
(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 recipent 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 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.
(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 year, or
both.
(b) If the offense is a first offense under paragraph (a) of this sub­
section 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

61

offense under paragraph (a) is a radio communication that is not
scrambled or encrypted, then—
(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 them
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 con­
sists of or relates to the interception of a satellite transmission that
is not encrypted or scrambled and that is transmitted—
((i) to a bradcasting station for purposes of retransmission to
the general public; or
(ii) as an audio subcarrier intended for redistribution to fa­
cilities 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 fi­
nancial gain.
(5)(a)(i) If the communication is—
(A) a private satellite video communication that is not scram­
bled or encrypted and the conduct in violation of this chapter is
the private viewing of that communication and is not for a tor­
tious or illegal purpose or for purposes of direct or indirect com­
mercial 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 encrypt­
ed and the conduct in violation of this chapter is not for a tor­
tious or illegal purpose or for purposes of direct or indirect com­
mercial 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 appropri­
ate 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 (ii)(A), and shall impose a
civil fine of not less than $500 for each violation of such an injunc­
tion,

62

§ 2512. Manufacture, distribution, possession, and advertising of
wire or oral communication intercepting devices pro­
hibited
(1) Except as otherwise specifically provided in this chapter, any
person who [willfully] intentionally—
(a) sends through the mail, or sends or carriers in interstate
or foreign commerce, any electronic, mechanical, or other
device, knowing or having reason to know that the design of
such device renders it primarily useful for the purpose of the
surreptitious interception of wire [or oral], oral, or electronic
communications;
(b) manufacturers, assembles, possesses, or sells any electron­
ic, mechanical, or other device, knowing or having reason to
know that the design of such device renders it primarily useful
for the purpose of the surreptitious interception of wire [or
oral], oral, or electronic communications, and that such device
or any component thereof has been or will be sent through the
mail or transported in interstate or foreign commerce; or
(c) places in any newspaper, magazine, handbill, or other
publication any advertisement of—
(i) any electronic, mechanical, or other device knowing
or having reason to know that the design of such device
renders it primarily useful for the purpose of the surrepti­
tious interception of wire [or oral], oral, or electronic
communications; or
(ii) any other electronic, mechanical, or other device,
where such advertisement promotes the use of such device
for the purpose of the surreptitious interception of wire
[or oral], oral, or electronic communications,
knowing or having reason to know that such advertisement
will be sent through the mail or transported in interstate or
foreign commerce,
shall be fined not more than $10,000 or imprisoned not more than
five years, or both.
(2) It shall not be unlawful under this section for—
(a) [ a communications common carrier] a provider of wire
or electronic communication service or an officer, agent, or em­
ployee of, or a person under contract with, [ a communications
common carrier] such a provider, in the normal course of the
[communications common carrier's business] business of pro­
viding that wire or electronic communication service, or
(b) an officer, agent, or employee of, or a person under con­
tract with, the United States, a State, or a political subdivision
thereof, in the normal course of the activities of the United
States, a State, or a political subdivision thereof, to send
through the mail, send or carry in interstate or foreign com­
merce, or manufacture, assemble, possess, or sell any electron­
ic, mechanical, or other device knowing or having reason to
know that the design of such device renders it primarily useful
for the purpose of the surreptitious interception of wire [or
oral], oral, or electronic communications.

63

§ 2513. Confiscation of wire [or oral], oral, or electronic commu­
nication intercepting devices
Any electronic, mechanical, or other device used, sent, carried,
manufactured, assembled, possessed, sold, or advertised in violation
of section 2511 or section 2512 of this chapter may be seized and
forfeited to the United States. All provisions of law relating to (1)
the seizure, summary and judicial forfeiture, and condemnation of
vessels, vehicles, merchandise, and baggage for violations of the
customs laws contained in title 19 of the United States Code, (2) the
disposition of such vessels, vehicles, merchandise, and baggage or
the proceeds from the sale thereof, (3) the remission or mitigation
of such forfeiture, (4) the compromise of claims, and (5) the award
of compensation to informers in respect of such forfeitures, shall
apply to seizures and forfeitures incurred, or alleged to have been
incurred, under the provisions of this section, insofar as applicable
and not inconsistent with the provisions of this section; except that
such duties as are imposed upon the collector of customs or any
other person with respect to the seizure and forfeiture of vessels,
vehicles, merchandise, and baggage under the provisions of the cus­
toms laws contained in title 19 of the United States Code shall be
performed with respect to seizure and forfeiture of electronic, me­
chanical, or other intercepting devices under this section by such
officers, agents, or other persons as may be authorized or designat­
ed for that purpose of the Attorney General.
§2515. Prohibition of use as evidence of intercepted wire [or
oral], oral, or electronic communications
Whenever any wire [or oral], oral, or electronic communication
has been intercepted, no part of the contents of such communica­
tion and no evidence derived therefrom may be received in evi­
dence in any trial, hearing, or other proceeding in or before any
court, grand jury, department, officer, agency, regulatory body, leg­
islative committee, or other authority of the United States, a State,
or a political subdivision thereof if the disclosure of that informa­
tion would be in violation of this chapter.
§2516. Authorization for interception of wire [or oral], oral, or
electronic communications
(1) The Attorney General, Deputy Attorney General, Assoicate
Attorney General, [ o r ] any Assistant Attorney General, any
acting Assistant Attorney General, or any Deputy Assistant Attorney
General in the Criminal Division specially designated by the Attor­
ney General, may authorize an application to a Federal judge of
competent jurisdiction for, and such judge may grant in conformity
with section 2518 of this chapter an order authorizing or approving
the interception of wire of oral communications by the Federal
Bureau of Investigation, or a Federal agency having responsibility
for the investigation of the offense as to which the application is
made, when such interception may provide or has provided evi­
dence of—
(a) any offense punishable by death or by imprisonment for
more than one year under sections 2274 through 2277 of title
42 of the United States Code (relating to the enforcement of

64

the Atomic Energy Act of 1954), section 2284 of title 42 of the
United States Code (relating to sabotage of nuclear facilities or
fuel), or under the following chapters of this title: chapter 37
(relating to espionage), chapter 105 (relating to sabotage), chap­
ter 115 (relating to treason), [ o r ] chapter 192 (relating to
riots), chapter 65 (relating to malicious matter mischief), chap­
ter 111 (relating to destruction of vessels), or chapter 81 (relat­
ing to piracy);
(b) a violation of section 186 or section 501(c) of title 29,
United States Code (dealing with restrictions on payments and
loans to labor organizations), or any offense which involves
murders, kidnapping, robbery, or extortion, and which is pun­
ishable under this title;
(c) any offense which is punishable under the following sections
of this title: section 201 (bribery of public officials and witnesses),
section 224 (bridery in sporting contests), subsection (d), (e), (f), (g),
(h), or (i) of section 844 (unlawful use of explosives), section 1084
(transmission of wagering information), section 751 (relating to
escape), sections 1503, 1512, and 1513 (influencing or injuring an of­
ficer, juror, or witness generally), section 1510 (obstruction of crimi­
nal investigations), section 1511 (obstruction of State or local law
enforcement), section 1751 (Presidential and Presidential staff as­
sassination, kidnapping, and assualt), section 1951 (interference
with commerce by threats or violence), section 1952 (interstate and
foreign travel or transporation in aid of racketeering enterprises),
section 1952A (relating to use of interstate commerce facilities in
the commission of murder for hire), section 1952B (relating to vio­
lent crimes in aid of racketeering activity), section 1954 (offer ac­
ceptance, or solicitation to influence operations of employee benefit
plan), section 1955 (prohibition of business enterprises of gambling),
section 659 (theft from interstate shipment), section 664 (embezzle­
ment from pension and welfare funds), section 1343 (fraud by wire,
radio, or television), section 2252 or 2253 (sexual exploitation of
children), Section 2251 and 2252 (sexual exploitation of children),
section [2314] 2312, 2313, 2314, and 2315 (interstate transporta­
tion of stolen property), the second section 2320 (relating to traffick­
ing in certain motor vehicles or motor vehicle parts), section 1203
(relating to hostage taking), section 1029 (relating to fraud and re­
lated activity in connection with access devices), section 3146 (relat­
ing 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), section 1963 violations with respect
to racketeer influenced and corrupt organizations), section 115 (re­
lating to threatening or retaliating against a Federal official), the
section in chapter 65 relating to destruction of an energy facility,
and section 1341 (relating to mail fraud), [or] section 351 (vola­
tions with respect to congressional, Cabinet, or Supreme Court as­
sissination, kidnapping, and assault), section 831 (relating to prohib­
ited transaction involving nuclear materials), section 33 (relating to
destruction of motor vehicles or motor vehicle facilities), or section
1992 (relating to wrecking trains);
(d) any offense involving counterfeiting punishable under section
471, 472, or 473 of this title;

65

(e) any offense involving fraud connected with a case under title
11 or the manufacture, importation, receiving, concealment,
buying, selling, or otherwise dealing in narcotic drugs, marihuana,
or other dangerous drugs, punishable under any law of the United
States;
(f) any offense including extortionate credit transactions under
sections 892, 893, or 894 of this title;
(g) a violation of section 5322 of title 31, United States Code
(dealing with the reporting of currency transactions); f o r ]
(h) any felony violation of sections 2511 and 2512 (relating to
interception and disclosure of certain communications and to cer­
tain intercepting devices) of this title;
(i) any violation of section 1679(c)(2)(relating to destruction of a
natural gas pipeline) or subsection (i) or (n) of the United States
Code;
(j) any criminal violation of section 2778 of title 22 (relating to
the Arms Export Control Act); or
(k) the location of any fugitive from justice from an offense de­
scribed in this section; or
[(h)](I) any conspiracy to commit any of the foregoing offenses.
(2) The principal prosecuting attorney of any State, or the princi­
pal prosecuting attorney of any political subdivision thereof, if such
attorney is authorized by a statute of that State to make applica­
tion to a State court judge of competent jurisdiction for an order
authorizing or approving the interception of wire [or oral], oral,
or electronic communications, may apply to such judge for, and
such judge may grant in conformity with section 2518 of this chap­
ter and with the applicable State statute an order authorizing, or
approving the interception of wire [or oral] oral, or electronic
communications by investigative or law enforcement of officers
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 the commission of the offense of
murder, kidnapping, gambling, robbery, bribery, extortion, or deal­
ing in narcotic drugs, marihuana or other dangerous drugs, or
other crime dangerous to life, limb, or property, and punishable by
imprisonment for more than one year, designated in any applicable
State statute authorizing such interception, or any conspiracy to
commit any of the foregoing offenses.
(3) Any attorney for the Government (as such term is defined for
the purposes of the Federal Rules of Criminal Procedure) may au­
thorize an application to a Federal judge of competent jurisdiction
for, arid such judge may grant, in conformity with section 2518 of
this title, an order authorizing or approving the interception of elec­
tronic communications by an investigative or law enforcement offi­
cer 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.
§ 2517. Authorization for disclosure and use of intercepted wire
[ o r o r a l ] , oral, or electronic communication
(1) Any investigative or law enforcement officer who, by any
means authorized by this chapter, has obtained knowledge of the
contents of any wire [or oral], oral, or electronic communication,

66

or evidence derived therefrom may disclose such contents to an­
other investigative or law enforcement officer to the extent that
such disclosure is appropriate to the proper performance of the offi­
cial duties of the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any
means authorized by this chapter, has obtained knowledge of the
contents of any wire [or oral], oral, or electronic communication
or evidence derived therefrom any use such contents to the extent
such use is appropriate to the proper performance of his official
duties.
(3) Any person who has received, by any means authorized by
this chapter, any information concerning a wire [or oral], oral, or
electronic communication, or evidence derived therefrom intercept­
ed in accordance with the provisions of this chapter may disclose
the contents of that communication or such derivative evidence
while giving testimony under oath or affirmation in any proceeding
held under the authority of the United States or of any State or
political subdivision thereof.
(4) No otherwise privileged wire [or oral], oral, or electronic
communication intercepted in accordance with, or in violation of,
the provisions of this chapter shall lose its privileged character.
(5) When an investigative or law enforcement officer, while en­
gaged in intercepting wire or oral communications in the manner
authorized herein, intercepts wire [or oral], oral, or electronic
communications relating to offenses other than those specified in
the order of authorization or approval, the contents thereof, and
evidence derived therefrom, may be disclosed or used as provided
in subsections (1) and (2) of this section. Such contents and any evi­
dence derived therefrom may be used under subsection (3) of this
section when authorized or approved by a judge of competent juris­
diction where such judge finds on subsequent application that the
contents were otherwise intercepted in accordance with the provi­
sions of this chapter. Such application shall be made as soon as
practicable.
§ 2518. Procedure for interception of wire [or oral], oral, or elec­
tronic communications
(1) Each application for an order authorizing or approving the
interception of a wire [or oral], oral, or electronic communication
under this chapter shall be made in writing upon oath or affirma­
tion to a judge of competent jurisdiction and shall state the appli­
cant's authority to make such application. Each application shall
include the following information:
(a) the identity of the investigative or law enforcement offi­
cer making the application, and the officer authorizing the ap­
plication;
(b) a full and complete statement of the facts and circum­
stances relied upon by the applicant, to justify his belief that
an order should be issued, including (i) details as to the par­
ticular offense that has been, is being, or is about to be com­
mitted, (ii) except as provided in subsection (11), a particular de­
scription of the nature and location of the facilities from which
or the place where the communication is to be intercepted, (iii)
a particular description of the type of communications sought

67

to be intercepted, (iv) the identity of the person, if known, com­
mitting the offense and whose communications are to be inter­
cepted;
(c) a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to
be too dangerous;
(d) a statement of the period of time for which the intercep­
tion is required to be maintained. If the nature of the investi­
gation is such that the authorization for interception should
not automatically terminate when the described type of com­
munication has been first obtained, a particular description of
facts establishing probable cause to believe that additional
communications of the same type will occur thereafter;
(e) a full and complete statement of the facts concerning all
previous applications known to the individual authorizing and
making the application, made to any judge for authorization to
intercept, or for approval of interceptions of, wire [or oral],
oral, or electronic communications involving any of the same
persons, facilities or places specified in the application; and
(f) where the application is for the extension of an order, a
statement setting forth the results thus far obtained from the
interception, or a reasonable explanation of the failure to
obtain such results.
(2) The judge may require the applicant to furnish additional tes­
timony or documentary evidence in support of the application.
(3) Upon such application the judge may enter an ex parte order,
as requested or as modified, authorizing or approving interception
of wire [or oral], oral, or electronic communications within the
territorial jurisdiction of the court in which the judge is sitting
(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) if the judge determines on the basis of the
facts submitted by the applicant that—
(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
offense enumerated in section 2516 of this chapter.
(b) there is probable cause for brief that particular communi­
cations concerning that offense will be obtained through such
interception;
(c) normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
to be too dangerous;
(d) except as provided in subsection (11), there is probable
cause for belief that the facilities from which, or the place
where the wire [or oral], oral, or electronic communications
are to be intercepted are being used, or are about to be used, in
connection with the commission of such offense, or are leased
to, listed in the name of, or commonly used by such person.
(4) Each order authorizing or approving the interception of any
wire [or oral], oral, or electronic communication under this chap­
ter shall specify—
(a) the identity of the person, if known, whose communica­
tions are to be intercepted;

68
(b) the nature and location of the communications facilities
as to which, or the place where, authority to intercept is grant­
ed;
(c) a particular description of the type of communication
sought to be intercepted, and a statement of the particular of­
fense to which it relates;
(d) the identity of the agency authorized to intercept the
communications, and of the person authorizing the application;
and
(e) the period of time during which such interception is au­
thorized, including a statement as to whether or not the inter­
ception shall automatically terminate when the described com­
munication has been first obtained.
An order authorizing the interception of a wire [or oral], oral, or
electronic communication under this chapter shall, upon request of
the applicant, direct that a [communication common carrier],pro­
vider of wire or electronic communication service, landlord, custodi­
an or other person shall furnish the applicant forthwith all infor­
mation, facilities, and technical assistance necessary to accomplish
the interception unobtrusively and with a minimum of interference
with the services that such [carrier] service provider, landlord,
custodian, or person is according the person whose communications
are to be intercepted. Any [communication common carrier] pro­
vider of wire or electronic communication service, landlord, custo­
dian or other person furnishing such facilities or technical assist­
ance shall be compensated therefor by the applicant [at the pre­
vailing rates.] for reasonable express incurred in providing such fa­
cilities or assistance.
(5) No order entered under this section may authorize or approve
the interception of any wire [or oral], oral, or electronic communi­
cation for any period longer than is necessary to achieve the objec­
tive of the authorization, nor in any event longer than thirty days.
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.
Extensions of an order may be granted, but only upon application
for an extension made in accordance with subsection (1) of this sec­
tion and the court making the findings required by subsection (3) of
this section. The period of extension shall be no longer than the au­
thorizing judge deems necessary to achieve the purposes for which
it was granted and in no event for longer than thirty days. Every
order and extension thereof shall contain a provision that the au­
thorization to intercept shall be executed as soon as practicable,
shall be conducted in such a way as to minimize the interception of
communications not otherwise, subject to interception under this
chapter, and must terminate upon attainment of the authorized ob­
jective, or in any event in thirty days. In the event the intercepted
communications 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 chap­
ter may be conducted in whole or in part by Goverment personnel, or
by an individual operating under a contract with the Government,

69

acting under the supervision of an investigative or law enforcement
officer authorized to conduct the interception.
(6) Whenever an order authorizing interception is entered pursu­
ant to this chapter, the order may require reports to be made to
the judge who issued the order showing what progress has been
made toward achievement of the authorized objective and the need
for continued interception. Such reports shall be made at such in­
tervals as the judge may require.
(7) Notwithstanding any other provision of this chapter, any in­
vestigative or law enforcement officer, specially designated by the
Attorney General, the Deputy Attorney General, the Associate At­
torney General, or by the principal prosecuting attorney of any
State or subdivision thereof acting pursuant of that State, who rea­
sonably determines that—
(a) an emergency situation exists that involves—
(i) immediate danger of death or serious physical injury
to any person.
(ii) conspiratorial activities threatening the national se­
curity interest, or
(iii) conspiratorial activities characteristic of organized
crime,
that requires a wire [or oral], oral, or electronic communica­
tion to be intercepted before an order authorizing such inter­
ception can, with due diligence, be obtained, and
(b) there are grounds upon which an order could be entered
under this chapter to authorize such interception.
may intercept such wire [or oral], oral, or electronic communica­
tion if an application for an order approving the interception is
made in accordance with this section within forty-eight hours after
the interception has occurred, or begins to occur. In the absence of
an order, such interception shall immediately terminate when the
communication sought is obtained or when the application for the
order is denied, whichever is earlier. In the event such application
for approval is denied, or in any other case where the interception
is terminated without an order having been issued, the contents of
any wire [or oral], oral, or electronic communication intercepted
shall be treated as having been obtained in violation of this chap­
ter, and an inventory shall be served as provided for in subsection
(d) of this section on the person named in the application.
(8)(a) The contents of any wire [or oral], oral, or electronic com­
munication intercepted by any means authorized by this chapter
shall, if possible, be recorded on tape or wire or other comparable
device. The recording of the contents of any wire [or oral], oral,
or electronic communication under this subsection shall be done in
such a way as will protect the recording from editing or other al­
terations. Immediately upon the expiration of the period of the
order, or extensions thereof, such recordings shall be made avail­
able to the judge issuing such order and sealed under this direc­
tions. Custody of the recordings shall be wherever the judge orders.
They shall not be destroyed except upon an order of the issuing or
denying judge and in any event shall be kept for ten years. Dupli­
cate recordings may be made for use or disclosure pursuant to the
provisions of subsections (1) and (2) of section 2517 of this chapter
for investigations. The presence of the seal provided for by this sub­

70

section, or a satisfactory explanation for the absence thereof, shall
be a prerequisite for the use or disclosure of the contents of any
wire [or oral], oral, or electronic communication or evidence de­
rived therefrom under subsection (3) of section 2517.
(b) Applications made and orders granted under this chapter
shall be sealed by the judge. Custody of the applications and orders
shall be wherever the judge directs. Such applications and orders
shall be disclosed only upon a showing of good cause before a judge
of competent jurisdiction and shall not be destroyed except on
order of the issuing or denying judge, and in any event shall be
kept for ten years.
(c) Any violation of the provisions of this subsection may be pun­
ished as contempt of the issuing or denying judge.
(d) Within a reasonable time but not later than ninety days after
the filing of an application for an order of approval under section
2518(7)(b) which is denied or the termination of the period of an
order or extensions thereof, the issuing or denying judge shall
cause to be served, on the persons named in the order or the appli­
cation, and such other parties to intercepted communications as
the judge may determine in his discretion that is in the interest of
justice, an inventory which shall include notice of—
(1) the fact of the entry of the order or the application;
(2) the date of the entry and the period of authorized, ap­
proved or disapproved interception, or the denial of the appli­
cation; and
(3) the fact that during the period wire [or oral], oral, or
electronic communications were or were not intercepted.
The judge, upon the filing of a motion, may in his discretion make
available to such person or his counsel for inspection such portions
of the intercepted communications, applications and orders as the
judge determines to be in the interest of justice. On an ex parte
showing of good cause to a judge of competent jurisdiction the serv­
ing of the inventory required by this subsection may be postponed.
(9) The contents of any wire [or oral], oral, or electronic commu­
nication intercepted pursuant to this chapter or evidence derived
therefrom shall not be received in evidence or otherwise disclosed
in any trial, hearing, or other proceeding in a Federal or State
court unless each party, not less then ten days before the trial,
hearing, or proceeding, has been furnished with a copy of the court
order, and accompanying application, under which the interception
was authorized or approved. This ten-day period may be waived by
the judge if he finds that it was not possible to furnish the party
with the above information ten days before the trial, hearing, or
proceeding and that the party will not be prejudiced by the delay
in receiving such information.
(10)(a) Any aggrieved person in any trial, hearing, or proceeding
in or before any court, department, officer, agency, regulatory
body, or other authority of the United States, a State, or a political
subdivision thereof, may move to suppress the contents of any wire
or oral communication intercepted pursuant to this chapter, or evi­
dence derived therefrom, on the grounds that—
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was
intercepted is insufficient on its face; or

71

(iii) the interception was not made in conformity with the
order of authorization or approval.
Such motion shall be made before the trial, hearing, or proceeding
unless there was no opportunity to make such motion or the person
was not aware of the grounds of the motion. If the motion is grant­
ed, the contents of the intercepted wire or oral communication, or
evidence derived therefrom, shall be treated as having been ob­
tained in violation of this chapter. The judge, upon the filing of
such motion by the aggrieved person, may in his discretion make
available to the aggrieved person or his counsel for inspection such
portions of the intercepted communication or evidence derived
therefrom as the judge determines to be in the interests of justice.
(b) In addition to any other right to appeal, the United States
shall have the right to appeal from an order granting a motion to
suppress made under paragraph (a) of this subection, or the denial
of an application for an order of approval, if the United States at­
torney shall certify to the judge or other official granting such
motion or denying such application that the appeal is not taken for
purposes of delay. Such appeal shall be taken within thirty days
after the date the order was entered and shall be diligently pros­
ecuted.
(c) The remedies and sanctions described in this chapter with re­
spect to the interception of electronic communications are the only
judicial remedies and sanctions for nonconstitutional violations of
this chapter involving such communications.
(11) The requirements of subsections (1)(b)(ii) and (3)(d) of the sec­
tion 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 intercep­
tion of an oral communication—
(i) the application is by a Federal investigative or law en­
forcement officer and is approved by the Attorney General,
the Deputy Attorney General, the Associate Attorney Gener­
al, an Assistant Attorney General, or an acting Assistant
Attorney General;
(ii) the application contains a full and complete state­
ment as to why such specification is not practical and iden­
tifies the person committing the offense and whose commu­
nications are to be intercepted; and
(iii) the judge finds that such specification is not practi­
cal; and
(b) in the case of an application with respect to a wire or elec­
tronic communication—
(i) the application is by a Federal investigative or law en­
forcement officer and is approved by the Attorney General,
the Deputy Attorney General, the Associate Attorney Gener­
al, 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 pur­
pose, on the part of that person, to thwart interception by
changing facilities; and

72

(iii) the judge finds that such purpose has been adequate­
ly shown.
(12) An interception of a communication under an order with re­
spect to which the requirements of subsections (l)(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 communica­
tion is to be intercepted is ascertained by the person implementing
the interception order. A provider of wire or electronic communica­
tions 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.
§ 2519. Reports concerning intercepted wire [or oral], oral, or
electronic communications
(1) Within thirty days after the expiration of an order (or each
extension thereof) entered under section 2518, or the denial of an
order approving an interception, the issuing or denying judge shall
report to the Administrative Office of the United States Courts—
(a) the fact that an order or extension was applied for;
(b) the kind of order or extension applied for (including
whether or not the order was an order with respect to which the
requirements of sections 2518(1)(b)(ii) and 2581(3)(d) of this title
did not apply by reason of section 2518(11) of title);
(c) the fact that the order or extension was granted as ap­
plied for, was modified, or was denied;
(d) the period of interceptions authorized by the order, and
the number and duration of any extensions of the order;
(e) the offense specified in the order or application, or exten­
sion or an order;
(f) the identity of the applying investigative or law enforce­
ment officer and agency making the application and the
person authorizing the application; and
(g) the nature of the facilities from which or the place where
communications were to be intercepted.
(2) In January of each year the Attorney General, an Assistant
Attorney General specially designated by the Attorney General, or
the principal prosecuting attorney of a State, or the principal pros­
ecuting attorney for any political subdivision of a State, shall
report to the Administrative Office of the United States Courts—
(a) the information required by paragraphs (a) through (g) of
subsection (1) of this section with respect to each application
for an order or extension made during the preceding calendar
year;
(b) a general description of the interceptions made under
such order or extension, including (i) the approximate nature
and frequency of incriminating communications intercepted,
(ii) the approximate nature and frequency of other communica­
tions intercepted, (iii) the approximate number of persons
whose communications were intercepted, and (iv) the approxi­
mate nature, amount, and cost of the manpower and other re­
sources used in the interceptions;

73

(c) the number of arrests resulting from interceptions made
under such order or extension, and the offenses for which ar­
rests were made;
(d) the number of trials resulting from such interceptions;
(e) the number of motions to suppress made with respect to
such interceptions, and the number granted or denied;
(f) the number of convictions resulting from such intercep­
tions and the offenses for which the convictions were obtained
and a general assessment of the importance of the intercep­
tions; and
(g) the information required by paragraphs (b) through (f) of
this subsection with respect to orders or extensions obtained in
a preceding calendar year.
(3) In April of each year the Director of the Administrative
Office of the United States Courts shall transmit to the Congress a
full and complete report concerning the number of applications for
orders authorizing or approving the interception of wire [or oral],
oral, or electronic communications pursuant to this chapter and the
number of orders and extensions granted or denied pursuant to
this chapter during the preceding calendar year. Such report shall
include a summary and analysis of the data required to be filed
with the Administrative Office by subsections (1) and (2) of this sec­
tion. The Director of the Administrative Office of the United States
Courts is authorized to issue binding regulations dealing with the
content and form of the reports required to be filed by subsections
(1) and (2) of this section.
§ 2520. Recovery of civil damages authorized
[Any person whose wire or oral communication is intercepted,
disclosed, or used in violation of this chapter shall (1) have a civil
cause of action against any person who intercepts, discloses, or
uses, or procures any other person to intercept, disclose, or use
such communications, and (2) be entitled to recover from any such
person—
[(a) actual damages but not less than liquidated damages
computed at the rate of $100 a day for each day of violation or
$1,000, whichever is higher;
[(b) punitive damages; and
[(c) a reasonable attorney's fee and other litigation costs
reasonably incurred.
A good faith reliance on a court order or legislative authorization
shall constitute a complete defense to any civil or criminal action
brought under this chapter or under any other law.]
(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 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 in­
cludes—
(1) such preliminary and other equitable or declaratory relief
as may be appropriate;
(2) damages under subsection (c) and punitive damages in ap­
propriate cases; and

74

(3) a reasonable attorney's fee and other litigation costs rea­
sonably incurred.
(c) COMPUTATION OF DAMAGES.—(1) In an action under this sec­
tion, if the conduct is 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 commu­
nication that is transmitted on frequencies allocated under subpart
D of part 74 of the rules of the Federal Communications Commis­
sion that is not scrambled or encrypted and the conduct is not for a
tortious or illegal purpose or for purposes of direct or indirect com­
mercial advantage or private commercial gain, then the court shall
assess damages as follows:
(A) If the person who engaged in that conduct has not previ­
ously 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 $1,000.
(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 viola­
tion; 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 legisla­
tive 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 com­
menced later than two years after the date upon which the claimant
first has a reasonable opportunity to discover the violation.
§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 viola­
tion 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 a practicable to the hearing and deter­
mination of such an action, and may, at any time before final deter­
mination, enter such a restraining order or prohibition, or take such
other action, as is warranted to prevent a continuing and substan­
tial injury to the United States or to any person or class of persons

75

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.
*

*

*

*

*

*

*

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.

§2701. Unlawful excess to stored communications
(a) OFFENSE.—Except as provided in subsection (c) of this section
whoeover—
(1) intentionally accesses without authorization a facility
through which an electronic communication service is provided;
or
(2) intentionally exceeds an authorization to access that facil­
ity;
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 sec­
tion.
(b) PUNISHMENT.—The punishment for an offense under subsec­
tion (a) of this section is—
(1) if the offense is committed for purposes of commercial ad­
vantage, malicious destruction or damage, or private commer­
cial gain—
(A) a fine of not more than $250,000 or imprisonment for
not more than one year, or both, in the case of a first of­
fense 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 com­
munications 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.
§2702. Disclosure of contents
(a) PROHIBITIONS.—Except as provided in subsection (b)—

76

(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 proc­
essing of communications received by means of electronic
transmission from), a subscriber or customer of such serv­
ice; 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 communica­
tion 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 serv­
ice 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.
§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 elec­
tronic 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 commu­
nications 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 pro­

vider of remote computing service to disclose the contents of any

77

electronic communication to which this paragraph is made applica­
ble 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 war­
rant; or
(B) with prior notice from the governmental entity to the sub­
scriber or customer if the governmental entity—
(i) uses an administrative subpoena authorized by a Fed­
eral or State statute or a Federal or State grand jury sub­
poena; or
(ii) obtains a court order for such disclosure under subsec­
tion (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 com­
munication that is held or maintained on that service—
(A) on behalf of, and received by means of electronic trans­
mission 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 serv­
ice; and
(B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the provid­
er is not authorized to access the contents of any such communi­
cations 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 sub­

paragraph (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 includ­
ing the contents of communications covered by subsection (a) or (b)
of this section) to any person other than a governmental entity.
(B) A provider or electronic communication service or remote com­
puting service shall disclose a record or other information pertain­
ing 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 subpoenal 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 dis­
closure.
(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 disclo­
sure under subsection (b) or (c) of this section shall issue only if the
governmental entity shows that there is reason to believe the con­

78

tents of a wire or electronic communication, or the records or other
information sought, are relevant to a legitimate law enforcement in­
quiry. 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 prompt­
ly by the service provider, may quash or modify such order, if the
information or records requested are unusually voluminious 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 INFOR­
MATION UNDER THIS CHAPTER.—No cause of action shall lie in any

court against any provider of wire or electronic communication serv­
ice, its officers, employees, agents, or other specified persons for pro­
viding information, facilities, or assistance in accordance with the
terms of a court order, warrant, subpoena, or certification under
this chapter.
§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 direct­
ed create a backup copy of the contents of the electronic communica­
tions sought in order to preserve those communications. Without no­
tifying the subscriber or customer of such subpoena or court order,
such service provider shall create such backup copy as soon as prac­
ticable consistent with its regular business practices and shall con­
firm 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 gov­
ernmental entity within three days after receipt of such confirma­
tion, 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 re­
questing 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 governmen­
tal 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 dis­
cretion 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.

79

(b) CUSTOMER CHALLENGES.—(1) Within fourteen days after notice
by the governmental entity to the subscriber or customer under sub­
section (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 con­
tain an affidavit or sworn statement—
(A) stating that the applicant is a customer or subscriber to
the service from which the contents of electronic communica­
tions 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 para­
graphs (1) and (2) of this subsection, the court shall order the gov­
ernmental entity to file a sworn response, which may be filed in
camera if the governmental entity includes in its response the rea­
sons 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 proceed­
ings shall be completed and the motion or application decided as
soon as practicable after the filing of the governmental entity's re­
sponse.
(4) If the court finds that the applicant is not the subscriber or
customer for whom the communications sought by the governmental
entitly 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 ap­
plication and order such process enforced. If the court finds that the
applicant is the subscriber or customer for whom the communica­
tions 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 sec­
tion shall not be deemed a final order and no interlocutory appeal
may be taken therefrom by the customer.
§2705. Delayed notice
(a) DELAY OF NOTIFICATION.—(1) A governmental entity acting
under section 2703(b) of this title may—

80
(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 Feder­
al 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 exe­
cution 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 sub­
section is—
(A) endangering the life or physical safety of an individual;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
(3) The governmental entity shall maintain a true copy of certifi­
cation 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 applica­
tion, or by certification by a governmental entity, but only in accord­
ance 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 custom­
er or subscriber a copy of the process or request together with notice
that—
(A) states with reasonable specificity the nature of the law en­
forcement inquiry; and
(B) informs such customer or subscriber—
(i) that information maintained for such customer or sub­
scriber by the service provider named in such process or re­
quest was supplied to or requested by that governmental au­
thority 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 certifica­
tion 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 head­
quarters 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.

81

(b) PRECLUSION OF NOTICE TO SUBJECT
ACCESS.—A governmental entity acting under

OF GOVERNMENTAL

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 com­
manding 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 or 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.
§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 rea­
sonably necessary and which have been directly incurred in search­
ing for, assembling, reproducing, or otherwise providing such infor­
mation. Such reimbursable costs shall include any costs due to nec­
essary disruption of normal operations of any electronic communica­
tion 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 informa­
tion).
(c) The requirement of subsection (a) of this section does not apply
with respect to records or other information maintained by a com­
munications 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 volu­
minous in nature or otherwise caused an undue burden on the pro­
vider.
'
§ 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 con­
stituting the violation is engaged in with a knowing or intentional
state of mind may, in a civil action, recover from the person or

82

entity which engaged in that violation such relief as may be appro­
priate.
(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 rea­
sonably 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 vio­
lation, 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 legisla­
tive 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 com­
menced later than two years after the date upon which the claimant
first discovered or had a reasonable opportunity to discover the vio­
lation.
§2708. Exclusivity of remedies
The remedies and sanctions described in this chapter are the only
judicial remedies and sanctions for nonconstitutional violations of
this chapter.
§2709. Counterintelligence access to telephone toll and transactional
records
(a) DUTY TO PROVIDE.—A wire or electronic communication serv­
ice 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 Direc­
tor of the Federal Bureau of Investigation under subsection (b) of
this section.
(b) REQUIRED CERTIFICATION.—The Director of the Federal
Bureau of Investigation (or an individual within the Federal
Bureau of Investigation designated for this purpose by the Director)
may request any such information and records if the Director (or the
Director's designee) certifies in writing to the wire or electronic com­
munication service provider to which the request is made that—
(1) the information sought is relevant to an authorized for­
eign counterintelligence investigation; and
(2) there are specific and articulable facts giving reason, to be­
lieve 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).

83

(c) PROHIBITION OF CERTAIN DISCLOSURE.—NO wire or electronic
communication service provider, or officer, employee, or agent there­
of, shall disclose to any person that the Federal Bureau of Investi­
gation has sought or obtained access to information or records
under this section.
(d) DISSEMINATION BY BUREAU.—The Federal Bureau of Investiga­
tion may disseminate information and records obtained under this
section only as provided in guidelines approved by the Attorney Gen­
eral for foreign intelligence collection and foreign counterintelli­
gence investigations conducted by the Federal Bureau of Investiga­
tion, 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 IN­

FORMED.—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 concerning all re­
quests made under subsection (b) of this section.
§2710. Definitions for chapter
As used in this chapter—
(1) the terms defined in section 2510 of this title have, respec­
tively, 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.
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CHAPTER 205—SEARCHES AND SEIZURES
Sec.
3101. Effect of rules of court—Rules.
*
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*
3117. Moble tracking devices.
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§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.
CHAPTER 206—PEN REGISTERS AND TRAP AND TRACE
DEVICES
Sec.

3121.
3122.
3123.
3124.

General prohibition on pen register and trap and trace device use; exception.

Application for an order for a pen register or a trap and trace device.

Issuance of an order for a pen register or a trap and trace device.

Assistance in installation and use of a pen register or a trap and trace device.

84
3125. Reports concerning pen registers and trap and trace devices.

3126. Definitions for chapter.

§3121. General prohibition on pen register and trap and trace device use; exception

(a) IN GENERAL.—Except as provided in this section, no person
may install or use a pen register or a trap and trace device without
first obtaining a court order under section 3123 of this title or under
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.).
(b) EXCEPTION.—The prohibition of subsection (a) does not apply
with respect to the use of a pen register or a trap and trace device by
a provider of electronic or wire communication service—
(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 or 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, an­
other 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 with the consent of the
user of that service.
(c) PENALTY.—Whoever knowingly violates subsection (a) shall be
fined under this title or imprisoned not more than one year, or both.
§3122. Application for an order for a pen register or a trap and
trace device
(a) APPLICATION.—(1) An attorney for the Government may make
application for an order or an extension of an order under section
3123 of this title authorizing or approving the installation and use
of a pen register or a trap and trace device under this chapter, in
writing under oath or equivalent affirmation, to a court of compe­
tent jurisdiction.
(2) Unless prohibited by State law, a State investigative or law en­
forcement officer may make application for an order or an extension
of an order under section 3123 of this title authorizing or approving
the installation and use of a pen register or a trap and trace device
under this chapter, in writing under oath or equivalent affirmation,
to a court of competent jurisdication 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 appli­
cation and the identity of the law enforcement agency conduct­
ing the investigation; and
(2) a certification by the applicant that the information likely
to be obtained is relevant to an ongoing criminal investigation
being conducted by that agency.
§3123. Issuance of an order for a pen register or a trap and trace
device
(a) IN GENERAL.—Upon an application made under section 3122
of this title, the court shall enter an ex parte order authorizing the
installation and use of a pen register or a trap and trace device

85

within the jurisdiction of the court if the court finds that the attor­
ney for the Government or the State law enforcement or investiga­
tive officer has certified to the court that the information likely to
be obtained by such installation and use is relevant to an ongoing
criminal investigation.
(b) CONTENTS OF ORDER.—An order issued under this section—
(1) shall specify—
(A) the identity, if known, of the person to whom is
leased or in whose name is listed the telephone line to
which the pen register or trap and trace device is to be at­
tached;
(B) the identity, if known, of the person who is the sub­
ject of the criminal investigation;
(C) the number and, if know, physical location of the tele­
phone line to which the pen register or trap and trace
device is to be attached and, in the case of a trap and trace
device, the geographic limits of the trap and trace order;
and
(D) a statement of the offense to which the information
likely to be obtained by the pen register or trap and trace
device relates; and
(2) shall direct, upon the request of the applicant, the furnish­
ing of information, facilities, and technical assistance necessary
to accomplish the installation of the pen register or trap and
trace device under section 3124 of this title.
(c) TIME PERIOD AND EXTENSIONS.—(1) An order issued under this
section shall authorize the installation and use of a pen register or
a trap and trace device for a period not to exceed sixty days.
(2) Extensions of such an order may be granted, but only upon an
application for an order under section 3122 of this title and upon
the judicial finding required by subsection (a) of this section. The
period of extension shall be for a period not to exceed sixty days.
(d) NONDISCLOSURE OF EXISTENCE OF PEN REGISTER OR A TRAP
AND TRACE DEVICE.—An order authorizing or approving the instal­

lation and use of a pen register or a trap and trace device shall
direct that—
(1) the order be sealed until otherwise ordered by the court;
and
(2) the person owning or leasing the line to which the pen reg­
ister or a trap and device is attached, or who has been ordered
by the court to provide assistance to the applicant, not disclose
the existence of the pen register or trap and trace device or the
existence of the investigation to the listed subscriber, or to any
other person, unless or until otherwise ordered by the court.
§2124. Assistance in installation and use of a pen register or a trap
and trace device
(a) PEN REGISTERS.—Upon the request of an attorney for the Gov­
ernment or an officer of a law enforcement agency authorized to in­
stall and use a pen register under this chapter, a provider of wire or
electronic communication service, landlord, custodian, or other
person shall furnish such investigative or law enforcement officer
forthwith all information, facilities, and technical assistance neces­
sary to accomplish the installation of the pen register unobtrusively

86

and with a minimum of interference with the services that the
person so ordered by the court accords the party with respect to
whom the installation and use is to take place, if such assistance is
directed by a court order as provided in section 3123(b)(2) of this
title.
(b) TRAP AND TRACE DEVICE.—Upon the request of an attorney for
the Government or an officer of a law enforcement agency author­
ized to receive the results of a trap and trace device under this chap­
ter, a provider of a wire or electronic communication service, land­
lord, custodian, or other person shall install such device forthwith
on the appropriate line and shall furnish such investigative or law
enforcement officer all additional information, facilities and techni­
cal assistance including installation and operation of the device un­
obtrusively and with a minimum of interference with the services
that the person so ordered by the court accords the party with re­
spect to whom the installation and use is to take place, if such in­
stallation and assistance is directed by a court order as provided in
section 3123(b)(2) of this title. Unless otherwise ordered by the court,
the results of the trap and trace device shall be furnished to the of­
ficer of a law enforcement agency, designated in the court, at rea­
sonable intervals during regular business hours for the duration of
the order.
(c) COMPENSATION.—A provider of a wire or electronic communica­
tion service, landlord, custodian, or other person who furnishes fa­
cilities or technical assistance pursuant to this section shall be rea­
sonably compensated for such reasonble expenses incurred in provid­
ing such facilities and assistance.
(d) No CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING INFOR­
MATION UNDER THIS CHAPTER.—No cause of action shall lie in any

court against any provider of a wire or electronic communication
service, its officers, employees, agents, or other specified persons for
providing information, facilities, or assistance in accordance with
the terms of a court order under this chapter.
(e) DEFENSE.—A good faith reliance on a court order, a legislative
authorization, or a statutory authorization is a complete defense
against any civil or criminal action brought under this chapter or
any other law.
§ 3125. Reports concerning pen registers and trap and trace devices
The Attorney General shall annually report to Congress on the
number of pen register orders and orders for trap and trace devices
applied for by law enforcement agencies of the Department of Jus­
tice.
§ 3126. Definitions for chapter
As used in this chapter—
(1) the terms 'wire communication', 'electronic communica­
tion', and 'electronic communication service' have the meanings
set forth for such terms in section 2510 of this title;
(2) the term 'court of competent jurisdiction' means—
(A) a district court of the United States (including a mag­
istrate of such a court) or a United States Court of Appeals;
or

87

(B) a court of general criminal jurisdiction of a State au­
thorized by the law of that State to enter orders authoriz­
ing the use of a pen register or a trap and trace device;
(3) the term pen register' means a device which records or de­
codes electronic or other impulses which identify the numbers
dialed or otherwise transmitted on the telephone line to which
such device is attached, but such term does not include any
device used by a provider or customer of a wire or electronic
communication service for billing, or recording as an incident
to billing, for communications services provided by such provid­
er or any device used by a provider or customer of a wire com­
munication service for cost accounting or other like purposes in
the ordinary course of its business;
(4) the term 'trap and trace device' means a device which cap­
tures the incoming electronic or other impulses which identify
the originating number of an instrument or device from which
a wire or electronic communication was transmitted;
(5) the term 'attorney for the Government' has the meaning
given such term for the purposes of the Federal Rules of Crimi­
nal Procedure; and
(6) the term 'State' means a State, the District of Columbia,
Puerto Rico, and any other possession or territory of the United
States.

O