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with the lawful consent of the

Found at: 0x1bi.net:70/textfiles/file?law/ecpa3law.law


(3) with the lawful consent of the originator or an addressee or 
ntended 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 

(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.



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

/* The following sections directly relate to BBS systems. */

(b) CONTENTS OF ELECTRONIC COMMUNICATIONS IN A REMOTE COMPUTING 
SERVICE.--

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

(A) without required notice to the subscriber or customer, if the 
Rules of Criminal Procedure or equivalent State warrant; or

(B) with prior notice from the governmental entity to the 

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

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

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

(2) Paragraph (1) is applicable with respect to any electronic 
communication that is held or maintained on that service--

(A) on behalf of, and received by means of electronic 
transmission from (or created by means of computer processing of 
communications received by means of electronic transmission 
from), a subscriber or customer of such remote computing service; 
and

(B) solely for the purpose of providing storage or computer 
communications for purposes of providing any services other than 

(c) RECORDS CONCERNING ELECTRONIC COMMUNICATION SERVICE OR REMOTE 
COMPUTING SERVICE.--

(1) (A) Except as provided in subparagraph (B), a provider of 
electronic communication service or remote computing service may 
to or customer of such service (not including the contents of 
communications covered by subsection (a) or (b) of this section) 
to any person other than a governmental entity.

(B) A provider of electronic communication service or remote 
computing service shall disclose a record or other information 
ncluding the contents of communications covered by subsection
(a) or (b) of this section) to a governmental entity only when 
the governmental entity--

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

(ii) obtains a warrant issued under the Federal Rules of Criminal 

(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 

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

(d) REQUIREMENTS FOR COURT ORDER.-- A court order for disclosure 
under subsection (b) or (c) of this section shall issue only if 
the governmental entity shows that there is reason to believe the 
contents of a wire or electronic communication, or the records or 
other information sought, are relevant to a legitimate law 
enforcement inquiry.  In the case of a State governmental 
authority, such a court order shall not issue if prohibited by 
the law of such State.  A court issuing an order pursuant to this 
quash or modify such order, if the information or records 

(e) NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING INFORMATION 
UNDER THIS CHAPTER.-- No cause of action shall lie in any court 
against any provider of wire or electronic communication service, 
ts officers, employees, agents, or other specified persons for
certification under this chapter.



(a) BACKUP PRESERVATION.--

(1) A governmental entity acting under section 2703(b)(2) may 
nclude in its subpoena or court order a requirement that the
copy of the contents of the electronic communications sought in 
order to preserve those communications.  Without notifying the 
business days after receipt by the service provider of the 

(2) Notice to the subscriber or customer shall be made by the 
confirmation, unless such notice is delayed pursuant to section 

(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 

(4) The service provider shall release such backup copy to the 
the governmental entity's notice to the subscriber or customer if 

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

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

(5) A governmental entity may seek to require the creation of a 
backup copy under subsection (a)(1) of this section if in its 
believe that notification under section 2703 of this title of the 
existence of the subpoena or court order may result in 
not subject to challenge by the subscriber or customer or service 

(b) CUSTOMER CHALLENGES.--

(1) Within fourteen days after notice by the governmental entity 
to the subscriber or customer under subsection (a)(2) of this 
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 Unites States 
contain an affidavit or sworn statement--

(A) stating that the applicant is a customer or subscriber to the 
maintained for him have been sought; and

(B) stating the applicant's reasons for believing that the 
nquiry 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 
n the notice which the customer has received pursuant to this
chapter.  For the purposes of this section, the term "delivery" 

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

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

(5) A court order denying a motion or application under this 
appeal may be taken therefrom by the customer.



(a) DELAY OF NOTIFICATION.--

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

(A) where a court order is sought, include in the application a 
notification required under section 2703(b) of this title for a 
there is reason to believe that notification of the existence of 
the court order may have an adverse result described in paragraph 
(2) of this subsection; or

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

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

(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 

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

(4) Extensions of the delay of notification provided in section 
application, or by certification by a governmental entity, but 
only in accordance with subsection (b) of this section.

(5) Upon expiration of the period of delay of notification under 
to, the customer or subscriber a copy of the process or request 
together with notice that--

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

(B) informs such customer or subscriber--

(i) that information maintained for such customer or subscriber 
by the service provider named in such process or request was 

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

(iii) what governmental entity or court made the certification or 

(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 
nvestigative agent in charge or an equivalent of an
nvestigating agency's headquarters or regional office, or the
chief prosecuting attorney or the first assistant prosecuting 
attorney or an equivalent of a prosecuting attorney's 

(b) PRECLUSION OF NOTICE TO SUBJECT OF GOVERNMENTAL ACCESS.-- A 
for an order commanding a provider of electronic communications 
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 
that notification of the existence of the warrant, subpoena, or 
court order will results in--

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

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly 



(a) PAYMENT.-- Except as otherwise provided in subsection (c), a 
of this title shall pay to the person or entity assembling or 
as are reasonably necessary and which have been directly incurred 
n searching for, assembling, reproducing, or otherwise providing
costs due to necessary disruption of normal operations of any 
electronic communication service or remote computing service in 

(b) AMOUNT.-- The amount of the fee provided by subsection (a) 
agreement, shall be as determined by the court which issued the 
order for production of such information (or the court before 
be brought, if no court order was issued for production of the 
nformation).

(c) The requirement of subsection (a) of this section does not 
apply with respect to records or other information maintained by 
a communications common carrier that relate to telephone toll 
this title.  The court may, however, order a payment as described 
n subsection (a) if the court determines the information
undue burden on the provider.



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

(b) RELIEF.-- In a civil action under this section, appropriate 

(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 

(c) DAMAGES.-- The court may assess as damages in a civil action 
under this section the sum of the actual damages suffered by the 
violation, but in no case shall a person entitled to recover 

(d) DEFENSE.-- A good faith reliance on--

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

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

(3) a good faith determination that section 2511(3) of this title 

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

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



The remedies and sanctions described in this chapter are the only 
of this chapter.


transactional records

(a) DUTY TO PROVIDE.-- A wire or electronic communication service 
and toll billing records information, or electronic communication 
transactional records in its custody or possession made by the 
Director of the Federal Bureau of Investigation under subsection
(b) of this section.

(b) REQUIRED CERTIFICATION.-- The Director of the Federal Bureau 
of Investigation (or an individual within the Federal Bureau of 
Director's designee) certifies in writing to the wire or 
electronic communication service provider to which the request is 
made that--

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

(2) there are specific and articulable facts giving reason to 
believe that the person or entity to whom the information sought 
Act of 1978 (50 U.S.C. 1801).

(c) PROHIBITION OF CERTAIN DISCLOSURE.-- No wire or electronic 
communication service provider, or officer, employee, or agent 
thereof, shall disclose to any person that the Federal Bureau of 

(d) DISSEMINATION BY BUREAU.-- The Federal Bureau of 
under this section only as provided in guidelines approved by the 
Attorney General for foreign intelligence collection and foreign 
counterintelligence investigations conducted by the Federal 
Bureau of Investigation, and, with respect to dissemination to an 
agency of the United States, only if such information is clearly 

(e) REQUIREMENT THAT CERTAIN CONGRESSIONAL BODIES BE INFORMED.-- 
On a semiannual basis the Director of the Federal Bureau of 
on Intelligence of the House of Representatives and the Select 
Committee on Intelligence of the Senate concerning all requests 
made under subsection (b) of this section.



As used in this chapter -

(1) the terms defined in section 2510 of this title have, 
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.


CHAPTER 205-SEARCHES AND SEIZURES

Sec. 3101.  Effect of rules of court--Rules




(a). IN GENERAL.--If a court is empowered to issue a warrant or 
other order for the installation of a mobile tracking device, 

(b). DEFINITION.--As used in this section, the term "tracking 
the tracking of the movement of a person or object.


CHAPTER 206-PEN REGISTERS AND TRAP TRACE DEVICES

Sec.


trace device.


trap and trace device.





(a) In General.-Except as provided in this section, no person may 
nstall 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 

(1) relating to the operation, maintenance, and testing of a wire 
or electronic communication service or to the protection of the 
users of that service from abuse of service or unlawful use of 

(2) to record the fact that a wire or electronic communication 
another provider furnishing service toward the completion of the 
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.


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 
competent jurisdiction.

(2) Unless prohibited by State law, a State investigative law 
enforcement 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 
competent jurisdiction of such State.

(b) Contents Of Application. - An application under subsection 
(a) of this section shall include-

(1) the identity of the attorney for the Government or the State 
law enforcement or investigative officer making the application 
and the identity of the law enforcement agency conducting the 
nvestigation; 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.


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 
that the attorney for the Government or the State law enforcement 
or investigative officer has certified to the court that the 
nformation likely to be obtained by such installation and use is

(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 
or trap and trace device is to be attached;

(B) the identity, if known, of the person who is the subject of 
the criminal investigation;

(C) the number and, if known, physical location of the telephone 
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 

(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 
furnishing 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 
nstallation 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 
exceed sixty days.

(d) Nondisclosure Of Existence Of Pen Register Or A Trap And 
Trace Device.-An order authorizing or approving the installation 
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 
ordered by the court to provide assistance to the applicant, not 
ordered by the court.


trap and trace device

(a) Pen Registers.-Upon the request of an attorney for the 
Government or an officer of a law enforcement agency authorized 
to install 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 necessary to accomplish the installation of 
the pen register unobtrusively and with a minimum of interference 
the party with respect to whom the installation and use is to 
take place, if such assistance is directed by a court order as 

(b) Trap And Trace Device.-Upon the request of an attorney for 
the Government or an officer of a law enforcement agency 
authorized to receive the results of a trap and trace device 
under this chapter, a provider of a wire or electronic 
communication service, landlord, custodian, or other person shall 
nstall such device forthwith on the appropriate line and shall
furnish such investigative or law enforcement officer all 
additional information, facilities and technical assistance 
ncluding installation and operation of the device unobtrusively
and with a minimum of interference with the services that the 
nstallation and assistance is directed by a court order as
ordered by the court, the results of the trap and trace device 
business hours for the duration of the order.

(c) Compensation.-A provider of a wire or electronic 
communication service, landlord, custodian, or other person who 
furnishes facilities or technical assistance pursuant to this 
expenses incurred in providing such facilities and assistance.

(d) No Cause Of Action Against A Provider Disclosing Information 
Under This Chapter.-No cause of action shall lie in any court 
against any provider of a wire or electronic communication 
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.



The Attorney General shall annually report to Congress on the 
number of pen register orders and orders for trap and trace 
of Justice.



As used in this chapter-

(1) the terms "wire communication", "electronic communication", 
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 magistrate 
of such a court) or a United States Court of Appeals; or

(B) a court of general criminal jurisdiction of a State 
authorized by the law of that State to enter orders authorizing 
the use of a pen register or a trap and trace device;

(3) the term "pen register" means a device which records or 
communication service for billing, or recording as an incident to 
billing, for communications services provided by such provider or 
any device used by a provider or customer of a wire communication 
ordinary course of its business;

(4) the term "trap and trace" device means a device which 
captures the incoming electronic or other impulses which identify 
the originating number of an instrument or device from which a 

(5) the term "attorney for the Government" has the meaning given 

(6) the term "State" means a State, the District of Columbia, 
States.

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